Karnataka High Court
Sri. Mohammed Ashraf vs Velu G on 13 November, 2024
-1-
NC: 2024:KHC:46129
MFA No. 8036 of 2013
C/W MFA No. 7074 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
MISCELLANEOUS FIRST APPEAL NO. 8036 OF 2013 (MV-I)
C/W
MISCELLANEOUS FIRST APPEAL NO. 7074 OF 2013 (MV-I)
IN MFA NO.8036/2013
BETWEEN
SRI. MOHAMMED ASHRAF,
@ MOULANA ASHRAF ALI
S/O. MOHAMMED FAKRUDDIN,
AGED ABOUT 33 YEARS,
NO. 33/1, 14TH CROSS,
LBF ROAD, DODDA MAVALLI,
BENGALURU.
... APPELLANT
(BY SMT. ANURADHA N.G., ADVOCATE)
Digitally signed by
CHANDRASHEKAR
LAXMAN
KATTIMANI
Location: HIGH
COURT OF
KARNATAKA
AND
1. VELU G. S/O. GOVINDASWAMY
MAJOR, NO.9, NRR ILLAM PLAYA,
CV RAMAN NAGAR,
BENGALURU-2,
(MOTOR CYCLE OWNER-1ST RESPONDENT)
BEARING REG. NO.KA-03-HD-5568.
-2-
NC: 2024:KHC:46129
MFA No. 8036 of 2013
C/W MFA No. 7074 of 2013
2. THE REGIONAL MANAGER,
NATIONAL INSURANCE COMPANY LTD.,
M.G. ROAD, SUBBARAM COMPLEX,
BENGALURU-1,
(INSURER OF MOTOR CYCLE BEARING
REG.NO. KA-03-HD-5568, 2ND RESPONDENT)
POLICY NO.35070131096201185206
VALID FROM 17.11.2008 TO 16.11.2010.
...RESPONDENTS
(BY SRI. O. MAHESH, ADVOCATE FOR R2;
V/O. DATED 22.04.2019 NOTICE TO R1 IS
DISPENSED WITH)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 08.04.2013
PASSED IN MVC NO.1217/2011 ON THE FILE OF THE XVI
ADDITIONAL, JUDGE, MACT, BENGALURU, PARTLY ALLOWING
THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
IN MFA NO.7074/2013
BETWEEN
NATIONAL INSURANCE COMPANY LTD.,
REGIONAL OFFICE, NO. 144,
SUBBARAM COMPLEX, M.G. ROAD,
BENGALURU-560 001,
BY IT'S MANAGER
...APPELLANT
(BY SRI. O. MAHESH, ADVOCATE)
-3-
NC: 2024:KHC:46129
MFA No. 8036 of 2013
C/W MFA No. 7074 of 2013
AND
1. SRI. MOHAMMED ASHRAF,
@ MOULANA ASHRAF ALI
S/O. MOHAMMED FAKRUDDIN,
AGED ABOUT 33 YEARS,
R/AT: NO. 33/1, 14TH CROSS,
LBF ROAD, DODD MAVALLI,
BENGALURU-560 011.
2. VELU G. S/O. GOVINDASWAMY
R/AT: NO.9, NRR ILLAMPLAYA,
C V RAMAN NAGAR,
BENGALURU-560 002.,
...RESPONDENTS
(BY SMT. ANURADHA N.G. ADVOCATE FOR R1;
V/O. DATED 28.10.2015 NOTICE TO R2 IS ACCEPTED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 08.04.2013
PASSED IN MVC NO.1217/2011 ON THE FILE OF THE 16TH
ADDITIONAL, JUDGE, MACT, BENGALURU, AWARDING A
COMPENSATION OF RS.2,00,000/- WITH INTEREST @ 6% P.A
FROM THE DATE OF PETITION TILL THE DATE OF PAYMENT.
THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 02.08.2024 AND COMING ON FOR
'PRONOUNCEMENT OF JUDGMENT', THIS DAY, THIS COURT
PRONOUNCED THE FOLLOWING:
-4-
NC: 2024:KHC:46129
MFA No. 8036 of 2013
C/W MFA No. 7074 of 2013
CORAM: HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
CAV J U D G M E N T
In these appeals, the Insurance Company is
challenging involvement of the vehicle in question,
whereas the injured petitioner is seeking enhancement of
compensation.
2. The rank of the parties shall be referred to as
per their status before the Tribunal.
3. Brief facts of the case are, on 03.06.2010 at
about 00.45 a.m., while the petitioner was riding the
Honda Activa bearing Reg.No.KA-05/HB-9410 near Queens
road Circle, another motorcycle bearing Reg.No.KA-
03/HD-5568 came from Kasturba road from the opposite
direction and dashed against the motorcycle of the
petitioner, due to which, he sustained injuries to the right
leg and he was admitted to Shifaa Hospital, Bengaluru,
which is situated near the place of the accident and was
treated under hospitalization. After taking treatment, the
-5-
NC: 2024:KHC:46129
MFA No. 8036 of 2013
C/W MFA No. 7074 of 2013
petitioner has approached the Tribunal for grant of
compensation of Rs.5,00,000/-. Claim was opposed by the
Insurance Company. The Tribunal, after taking the
evidence and hearing both the parties, by the impugned
judgment allowed the claim petition granting
compensation of Rs.1,99,570/- (rounded of to
Rs.2,00,000/-) with interest at 6% p.a. Questioning the
very involvement of the vehicle in the accident and
alleging fraud, the Insurance Company has filed
MFA.No.7074/2013, whereas pleading inadequacy and
seeking enhancement, the petitioner has filed
MFA.No.8036/2013.
4. Heard the arguments of Sri O. Mahesh, learned
counsel for the Insurance Company and Smt.Anuradha
N.G., learned counsel for the petitioner.
5. It is the contention of the learned counsel for
the Insurance Company that, the accident was involving a
car bearing Reg.No.KA-03/HD-5568 versus Honda Activa
bearing Reg.No.KA-02/ES-1382. When the petitioner was
-6-
NC: 2024:KHC:46129
MFA No. 8036 of 2013
C/W MFA No. 7074 of 2013
brought to Shifaa Hospital, history was furnished and
same was recorded in the hospital records. Later both the
vehicles have been replaced, hospital records have been
tampered and there was no motor vehicle inspection
conducted on the car as well as the motorcycle in
question. The spot mahazar came out in the questionable
circumstances. The petitioner and the owner of the vehicle
have colluded with each other have played fraud.
According to the petitioner, the auto drivers have brought
and admitted him to the hospital and they were not
examined as eyewitness to the incident. The statement of
the complainant was recorded at 3.00 p.m. on the next
day morning. The brother of the petitioner Mohammad
Hussain has given information to the hospital that the car
bearing Reg.No.KA-05/HD-9565 was caused the accident.
The motorcycle in question was subsequently implanted,
the petitioner has failed to prove the involvement of the
motorcycle in question, there are overwriting in the
hospital records. Therefore, the petitioner cannot enrich
-7-
NC: 2024:KHC:46129
MFA No. 8036 of 2013
C/W MFA No. 7074 of 2013
himself by playing fraud and claim petition ought to have
been dismissed.
6. Per contra, learned counsel for the petitioner
has contended that, the petitioner himself is an eyewitness
to the incident. Soon after the accident he was brought to
the hospital at 3.00 a.m., on the next day the police have
visited the hospital, recorded the statement of the
petitioner as he was informed by the auto drivers that the
vehicle number was correctly given to the Shifaa hospital
and no car was involved in the accident, motorcycle
bearing Reg.No.KA-03/HD-5568 had hit against the
motorcycle ridded by the petitioner bearing Reg.No.KA-
05/HB-9410, the petitioner is not responsible for the
overwriting in the hospital records. The discharge
summary, wound certificate and prosecution papers go to
explain that the petitioner was riding the Honda Activa
bearing Reg.No.KA-05/HB-9410 at the time of accident
and it was hit by the motorcycle bearing Reg.No.KA-
03/HD-5568. Accordingly, the rider of the motorcycle was
-8-
NC: 2024:KHC:46129
MFA No. 8036 of 2013
C/W MFA No. 7074 of 2013
prosecuted by the police and the petitioner having
sustained fracture of both the bones of right leg, was
treated under hospitalization for a period of 28 days, there
was no occasion for him to tamper the medical records
which were not under his custody.
6.1. The medical evidence is placed through PWs.2
and 3 that the petitioner has suffered 39.4% of the limb
disability and 20% of the whole body disability, whereas
the Tribunal has taken only at 15%. The petitioner was
working as a teacher in a Mavalli Masjid, earning salary of
Rs.8,000/- per month. But the Tribunal has taken at
Rs.4,000/- is on the lower side. The compensation
assessed under different heads is on the lower side and
she sought for enhancement with a direction to the
respondents to deposit the compensation as there is no
issue regarding the driving licence and the policy of
insurance.
-9-
NC: 2024:KHC:46129
MFA No. 8036 of 2013
C/W MFA No. 7074 of 2013
7. I gave my anxious consideration to the arguments
addressed by the learned counsel for both the parties and
perused the records.
8. It is the definite case of the petitioner that, at the
early morning of 02.06.2010 i.e. 00.45 a.m. on
03.06.2010 near Queens road Circle, there was an
accident in which the petitioner has sustained fracture of
both the bones of his right leg. The petitioner is before the
Tribunal on the ground that while he was riding the
motorcycle bearing Reg.No.KA-05/HB-9410, another
motorcycle bearing Reg.No.KA-03/HD-5568 dashed
against him. According to the petitioner, nearby the place
of accident, there were auto drivers present who carried
him to the Shifaa hospital. The petitioner in the witness
box has asserted that the auto drivers have given
information to his brother-Mohammad Hussain, who has
informed the same to the hospital authorities and as well
as the Police. The petitioner admits that his brother
Mohammad Hussain was not an eyewitness. Before the
- 10 -
NC: 2024:KHC:46129
MFA No. 8036 of 2013
C/W MFA No. 7074 of 2013
Tribunal, the petitioner himself claims to be the eyewitness
and no other eyewitnesses are examined, only the
prosecution papers are relied upon by the petitioner.
9. On careful evaluation of the evidence of the
petitioner, it is pertinent to note that the auto driver has
brought the motorcycle which caused the accident near
the hospital and on the same day, the police have
recorded his statement but he has not informed to the
police about the vehicle number. Contrary, the police have
informed the vehicle registration number. Ex.P1 is the
statement of the petitioner recorded in the Shifaa Hospital.
On perusal of the same, it is pertinent to note that while
the petitioner was riding his friend's Honda Activa bearing
Reg.No.KA-05/HB-9410 near Queens road Circle,
motorcycle bearing Reg.No.KA-03/HD-5568 came from
Kasturba road and dashed against his motorcycle. The
auto drivers who were present near the place of accident
have brought and admitted to the Shifaa Hospital and
- 11 -
NC: 2024:KHC:46129
MFA No. 8036 of 2013
C/W MFA No. 7074 of 2013
accordingly the actionable negligence attributed against
the driver of the offending motorcycle.
10. From the recital found in Ex.P1, the statement
attached to the FIR, it can be noticed that the petitioner
was not aware of the registration number of the
motorcycle, the auto drivers have given information to his
brother Mohammad Hussain, who informs the hospital
authorities. There is inconsistency in the evidence of the
petitioner to that of the recital of the averments made in
the complaint. In this regard, it is very relevant to peruse
the evidence of PW.3-Dr. Mohamad Irshad, the Medical
Officer who admitted the petitioner to the hospital soon
after his arrival. He is examined as PW3, whose testimony
goes to show that when brought to the Hospital, the
petitioner was conscious and he himself informed that the
car had hit against his motor cycle. Accordingly, note was
recorded and police intimation was sent as per Ex.R1 on
02.06.2010 itself.
- 12 -
NC: 2024:KHC:46129
MFA No. 8036 of 2013
C/W MFA No. 7074 of 2013
11. In this regard, it is very relevant to refer the
information furnished to the hospital authorities under
Ex.R1. Ex.R1 was the document issued by Shifaa Hospital,
Bengaluru wherein the petitioner was attended by his
friends and the accident details are recorded as "the
"patient had RTA by the car No.KA-05/MD-9410 / KA-
03/HD-5568 near Dickenson / Milkenson road around
12.00 midnight Activa KA-02/ES-1382". It is pertinent to
note that originally the note was written as "the patient
had RTA by KA-03/HD-5568 near Milkinson road around
the 12.00 midnight Activa KA-02/ES-1382" The car
Reg.No.KA-03/HD-5568" by showing the arrow mark
upwards, it is written as "KA-03/HD-5568" again it was
over written as "KA-05/HD-9410", the Milkinson road is
made as a Dickenson road.
12. Interesting to note that "KA-05/HB-9410" is not
the car, it is Honda Activa said to have been ridden by the
petitioner. If the recitals of Ex.R1 is appreciated along with
the statement of PW.3-Dr.Mohamed Irshad, the Medical
- 13 -
NC: 2024:KHC:46129
MFA No. 8036 of 2013
C/W MFA No. 7074 of 2013
Officer of the Shifaa Hospital that the petitioner was hit by
the car, then the bonafides in Ex.P1 has been contrary to
the recital in Ex.R1. The cross-examination of PW.3 makes
out that it is the petitioner himself, who informed him that
he was hit by the car and the car registration number is
also ascertained by the Insurance Company by producing
Exs.R3 to R5, the RTO records. Ex.R3 point out that KA-
03/MD-5568 is a Maruti Esteem car belonging to one
Ismail Baig. Ex.R4 indicates that KA-05/HD-9410 is the
Honda Activa belonging to one Subramani K. Ex.R5
indicates that KA-02/ES-1382 is the Honda Activa
belonging to one Nandish Eshwar. Whereas the respondent
No.1 and the Insurance Company arrayed in this case as
the owner and the insurer of the motorcycle Reg.No.KA-
03/HD-5568 which belonging to one Velu G, the first
respondent.
13. From the above records, it is thus clear that
there is tampering of hospital records. Soon after the
accident, the petitioner was taken to the Shifaa Hospital
- 14 -
NC: 2024:KHC:46129
MFA No. 8036 of 2013
C/W MFA No. 7074 of 2013
with the history that car bearing Reg.No.KA-03/MD-5568
had hit against the Honda Activa motorcycle bearing
Reg.No.KA-02/ES-1382. By the time the police have
entered the hospital at 1.00 p.m. on 03.06.2010, the car
has been replaced with motorcycle bearing Reg.No.KA-
03/HD-5568 and the Honda Activa bearing Reg.No.KA-
05/HB-9410. The motorcycle ridded by the petitioner as
well as the offending motorcycle have been completely
replaced, there is no explanation for such replacement. No
eyewitnesses are examined. The accident took place in
the midnight. The evidence clearly point out that fraud has
been played by the petitioner for the sake of
compensation. Insurance Company is right in arguing that
the vehicle had been replaced for the sake of
compensation.
14. The Co-ordinate Bench of this Court in Veerappa
and another -vs- Siddappa and another1, has held that
the person who assists the petitioner for the sake of
1
ILR 2009 KAR 3562
- 15 -
NC: 2024:KHC:46129
MFA No. 8036 of 2013
C/W MFA No. 7074 of 2013
compensation, has to pay compensation and the claim
petition shall not be dismissed. Accordingly, the first
respondent being the owner of the motorcycle bearing
Reg.No.KA-03/HD-5568, who has connived with the
petitioner, is liable to pay the compensation. The
Insurance Company has to be exonerated. The petitioner
cannot be allowed to get windfall on account of the
fraudulent accident from the hands of the Insurance
Company.
15. As regarding entitlement of the petitioner, the
claim is genuine insofar as injuries sustained by the
petitioner, he has to be awarded with just compensation.
The medical records show that the petitioner was aged 31
years, he has suffered fracture of both the bones of right
leg and right mallelous. He was under hospitalization for 3
days from 02.06.2010 to 16.06.2010 for 14 days, from
02.08.2010 to 08.08.2010 for 7 days and 17.04.2011 to
24.04.2011 for 7 days, totally 28 days. The medical bills
- 16 -
NC: 2024:KHC:46129
MFA No. 8036 of 2013
C/W MFA No. 7074 of 2013
issued by the Shifaa Hospital indicates Rs.1,51,950/- that
has to be reimbursed.
16. PW.2-Dr.Ramachandra and PW.3-Dr.Mohamad
Irshad, both have explained that the injuries sustained at
39.4% of limb disability and 20% of the whole disability,
whereas the Tribunal has considered it at 15%. Having
regard to the fracture of both the bones of right leg and
the petitioner being a teacher in a Mavalli Masjid, the
functional disability assessed by the Tribunal at 15% is
proper and the same has to be kept in-tact.
17. The accident is of the year 2010. A person with
no proof of income in the year 2010 will earn not less than
Rs.5,500/- per month. The Tribunal has taken Rs.4,000/-
as the income of the petitioner is on the lower side.
Though the petitioner claims that he is earning Rs.8,000/-
per month as a teacher at Mavalli Masjid, there is no proof
of income. Hence, the notional income of the petitioner
has to be taken at Rs.5,500/- and for his age, the
applicable multiplier is 16.
- 17 -
NC: 2024:KHC:46129
MFA No. 8036 of 2013
C/W MFA No. 7074 of 2013
18. As regarding compensation is concerned, the
petitioner has to be assessed at Rs.60,000/- towards pain
and suffering, medical expenses at Rs.1,51,950/- and
attendant charges at Rs.5,000/-, food and nourishment at
Rs.5,000/-, conveyance expenses at Rs.2,000/-, loss of
amenities and discomfort at Rs.50,000/- and the petitioner
will be laid up for minimum of 4 months and Rs.22,000/-
(Rs.5,500/- x 4 months) towards loss of income during
laid up. The loss of future income will be Rs.5,500/-
x12x16x15%=Rs.1,58,400/-, then the total compensation
comes to Rs.4,54,350/- as against Rs.1,99,570/-, thereby
enhancement of Rs.2,54,780/-. It is the just compensation
the petitioner is entitled to, in the facts and circumstances
of the case.
19. The petitioner claims damage to his motorcycle.
The evidence points out that the Honda Activa bearing
Reg.No.KA-05/HD-9410 belonging to one Subramani K.
and not the petitioner. The damage to the said vehicle has
- 18 -
NC: 2024:KHC:46129
MFA No. 8036 of 2013
C/W MFA No. 7074 of 2013
to be claimed by the RC owner and not the petitioner and
the petitioner cannot seek damages for the same.
20. As regarding liability is concerned, in view of the
above discussion, that the fraud has been played by the
petitioner in collusion with the owner of the vehicle-Velu
G, the first respondent, he has to recover the
compensation from the owner of the vehicle and not from
the insurer. The Insurance Company has to be exonerated
from its liability.
21. In view of the above discussion, both the appeals
merit consideration, in the result, the following:
ORDER
i. Both the appeals are allowed in part;
ii. The impugned judgment and award passed by
the Tribunal is modified;
iii. The petitioner would be entitled to total
compensation of Rs.4,54,350/- with interest at
6% p.a. from the date of petition till the date of
deposit;
- 19 -
NC: 2024:KHC:46129
iv. Claim petition against the Insurance Company
is hereby dismissed;
v. The petitioner is entitled to recover the
compensation from respondent No.1, the RC
owner of the motorcycle bearing Reg.No.KA-
03/HD-5568;
vi. The respondent No.1 shall deposit entire
compensation with interest within eight weeks
from the date of receipt of certified copy of this
judgment;
vii. Amount deposited by the Insurance Company
shall be returned to it.
Sd/-
(T.G. SHIVASHANKARE GOWDA)
JUDGE
MKM
Ct-cmu
