Karnataka High Court
Smt R Leela vs Bajaj Allianz General Insurance Co. Ltd on 5 September, 2024
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MFA No. 4162 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
MFA NO. 4162 OF 2013 (MV-I)
BETWEEN:
SMT. R. LEELA,
W/O LATE R. RAJAGOPAL,
AGED ABOUT 70 YEARS,
R/O NO.50/3, 9TH MAIN ROAD,
3RD CROSS, MATHIKERE,
BANGALORE - 560 054.
...APPELLANT
(BY SRI. H.C.PRAKASH., ADVOCATE)
AND:
1. BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD.,
NO.105A, I FLOOR,
CEARS PLAZA, 136,
RESIDENCY ROAD,
Digitally signed by BANGALORE - 560 025.
PRAJWAL A
Location: HIGH COURT
OF KARNATAKA 2. MR. NAGARAJU,
S/O SRI. S. SRINIVAS,
NO.450, SRI DURGA STORE,
TRIVENI ROAD,
YESHWANTHAPURA,
BANGALORE 560 022.
...RESPONDENTS
(BY SRI. O.MAHESH., ADVOCATE FOR R1,
SRI. RAMACHANDRA R. NAIK., ADVOCATE FOR R2.)
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MFA No. 4162 of 2013
THIS MFA IS FILED U/S 173(1) OF MV ACT AND PRAYING
TO MODIFY THE JUDGMENT AND AWARD DATED 10.09.2012
PASSED IN MVC NO.2854/2007 ON THE FILE OF MOTOR
ACCIDENT CLAIMS TRIBUNAL AT BANGALORE (SCCH-16) AND
PASS SUCH OTHER ORDER OR ORDERS AS THIS HON'BLE
COURT DEEMS FIT IN THE CIRCUMSTANCES, IN THE INTEREST
OF JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
ORAL JUDGMENT
In this appeal, the petitioner is challenging the order
of dismissal of the claim petition filed under Section 166 of
Motor Vehicles Act, 1988.
2. For the sake of convenience, the rank of the
parties shall be referred to as per their status before the
Tribunal.
3. Brief facts of the case are, on 24.03.2007 at
8:00 p.m, when the petitioner was crossing the Mathikere,
3rd Cross along with her daughter in front of Prasad Dry
Cleaner, Motor Cycle bearing Registration No.KA-04-EN-
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7942 hit against her and due to which she sustained
injuries. She was taken treatment at Subhaiah Hospital,
M.S.Ramaiah hospital and Rajmahal Vilas hospital. The
petitioner has approached the Tribunal for grant of
compensation of Rs.3,00,000/-. The claim was opposed
by the Insurance Company. The Tribunal after taking the
evidence and hearing both the parties, by impugned
judgment and award, dismissed the claim petition on the
ground that there is a replacement of rider and fraud is
played for the sake of compensation. Aggrieved by the
same, the petitioner is before this Court.
4. Heard the argument of Sri. M.Anil Kumar,
learned counsel for the petitioner and Sri. O.Mahesh,
learned counsel for the Insurance Company and
Sri.Ramachandra R. Naik, learned counsel for the owner of
the vehicle.
5. It is contended by the learned counsel for the
petitioner that, immediately after the accident the
petitioner was taken to Subbaiah Hospital and from there
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to M.S.Ramaiah Hospital. The history was furnished
regarding the accident and on 25.03.2007 at 3.00 p.m
complaint was lodged to the police regarding the
involvement of the Honda Activa bearing No.KA-04-EN-
7942. After investigation, police have arrested the rider of
the motor cycle by name Sri.Siddaraju and he has been
charge sheeted for the actionable negligence. Evidence
placed on record is sufficient to explain the accident as
well as the rider of the vehicle. The compensation awarded
by the Tribunal is inadequate as future loss of income is
not properly assessed. No compensation is awarded
towards loss of income during laid up period and sought
for enhancement.
6. Per contra, learned counsel for the Insurance
Company has contended that soon after the accident the
rider of the Honda Activa has accompanied the injured to
the Subbaiah Hospital and from there to the M.S.Ramaiah
Hospital. It is the CMO who admitted the injured to the
hospital by recording the details of the accident. Medical
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records at the inception shows that the rider of the motor
cycle was one Raffiq. This has been captured by the
Causality Medical Officer who examined the injured at the
time of admission as the said rider was very well present.
7. It is further contended that only after the
intervention of the police, all of a sudden the driver is
replaced from Raffiq to Siddaraju. No evidence is placed
on record that the Raffiq was also holding valid driving
license. For the reason that Raffiq had no driving license,
Siddaraju is brought in later with the convenience of the
police. The Investigating Officer has colluded with the
owner of the vehicle. To help him in evading his liability to
pay the compensation, charge sheet is filed against
Siddaraju. The Tribunal has rightly held that fraud is
played by the owner of the vehicle along with the police
for the sake of compensation. The Tribunal has rightly
recorded its finding, that the fraud cannot be persuade the
Tribunal to award the compensation. Though the Tribunal
awarded the compensation because of the alleged fraud,
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claim was dismissed and he supported the impugned
judgment.
8. It is the contention of the learned counsel for the
owner of the vehicle that in the M.S.Ramaiah Hospital
when the rider was admitted the injured, the signature of
the rider was not taken. In the MLC extract, only name of
one Raffiq is mentioned. The rider at the time of accident
was one Siddaraju and accordingly he has been charge
sheeted by the police after investigation. The Tribunal was
under the wrong impression that the rider was Raffiq and
came to the conclusion that the fraud has been played in
this case. The rider of the Honda Activa was holding valid
driving license, policy of insurance is intact and the
Insurance Company has to satisfy the liability. The Order
of dismissal is erroneous and sought for assessment of the
compensation and to saddle the liability against the
Insurance Company.
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9. I gave my anxious consideration to the arguments
addressed on behalf of both sides and perused the
materials on record.
10. It is not in dispute that the accident that took
place at 8.00 p.m at 3rd cross, 7th main of the Mathikere
involving the Honda Activa bearing No.KA-04-EN-7942 in
which the petitioner has sustained several injuries and she
has been treated at Subbaiah Hospital and M.S.Ramaiah
Hospital. The only dispute is who was the rider of the
Honda Activa at the time of accident. The petitioner claims
that one Siddaraju was the rider of the Honda Activa. In
the claim petition the rider is not arrayed as a party. The
petitioner has produced the FIR, Charge sheet as per
Exs.P1 to 4. On careful perusal of the complaint under
Ex.P2, which is filed by A.R Roopa the daughter of the
petitioner, that soon after the accident, the rider of the
Honda Activa took the injured to the Subbaiah Hospital
and she later brought her to the M.S.Ramaiah Hospital.
These averments of the complaint clearly goes to show
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that the rider of the Honda Activa has taken care of the
injured and carried her to the hospital.
11. The Discharge summary issued by the
M.S.Ramaiah Hospital as per Ex.P6 refers to history of RTA
and injuries sustained by the petitioner. Ex.P4 is the
charge sheet filed against one Siddaraju as the rider of the
motor cycle for the offence punishable under Sections 279
and 338 of IPC. Since the rider attended the injured, the
charge sheet did not point out any allegation against him
under Section 134 of the Motor Vehicles Act. It is very
clear that the rider had accompanied the injured and he
has attended the injured for getting the immediate
treatment.
12. On behalf of the Insurance Company the officer
has seen examined as RW.1. The Insurance Company has
relied on the MLC extract issued by the M.S.Ramaiah
Hospital as per Ex.R4. On careful perusal of Ex.R4, it is
pertinent to note that on 24.03.2007 at 10.00 p.m. the
petitioner was brought to the M.S.Ramaiah Hospital with
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an history of accident at 8.00 p.m., on 24.03.2007 at
Subbaiah hospital main road alleged to have been hit by
two wheeler Honda Activa while petitioner was pedestrian.
13. In the accident register extract there is a
mentioning of who are all accompanied the patient. One is
Asha B.M who is the daughter of the petitioner has
accompanied her mother at the time of the accident.
Accident register also refers to two wheeler rider as Raffiq.
The averments of the complaint under Ex.R4 reveal that
the rider of the two wheeler Raffiq accompanied the
injured to the hospital and there is no reference to the
name of Siddaraju as the rider of the motor cycle. When
Siddaraju has not accompanied the patient to Subbaiah
Hospital and M.S.Ramaiah Hospital how the investigating
Officer came to know that Siddaraju was the rider of the
motor cycle. The investigating papers did not point out or
clarify that the name of the rider was wrongly mentioned
in the hospital and the correct rider is Siddaraju. Till the
complaint was filed and the police officers intervened in
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the matter, the truth was prevailing as Raffiq was the
rider. Soon after the intervention of the police, Raffiq
disappeared and all of a sudden Siddaraju appeared along
with his driving license and he faced the criminal trial.
14. The Tribunal has rightly pointed out that the
swiping of the driver by Siddaraju in place of Raffiq is
imminent. The Tribunal is right in accepting that there is a
replacement of rider. All of a sudden fraud cannot be
alleged against the petitioner as she is an injured it is the
owner of the vehicle who played the fraud in swiping the
rider from Raffiq to Siddaraju. No evidence is placed
before the Court that the Raffiq was also holding the valid
driving license. It gives a clear inference that a person
without a driving license was riding the Honda Activa at
the time of accident and for the sake of compensation,
person with driving license is brought in. Any how,
irrespective of the fact that who was the rider of the motor
cycle the owner is liability comes into picture. Since the
owner has played fraud, he has to take the responsibility
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to pay the compensation. Hence, the order of dismissal of
the claim petition against the owner is not proper and he
has to pay the compensation. Hence, the order of the
Tribunal needs modification.
15. Adverting to the argument of the learned counsel
for the owner of the vehicle that, the policy of Insurance is
intact and even if the Raffiq is taken as a rider of the
motor cycle it is a case of pay and recovery. As observed
supra, it is a case of fraud played by the owner of the
vehicle and therefore he cannot say that it is a case for
pay and recovery. Mere holding the valid policy is not
sufficient and he cannot escape from his liability;
16. Regarding quantum of compensation is
concerned, medical records shows that the petitioner has
suffered fracture of Left Greater Trochanter, fracture of
superior and inferior of pelvic ram and fracture of anterior
column. She was under hospitalization for a period of 20
days on two occasions, one was in M.S Ramaiah Hospital
and thereafter at Raja Vilas Hospital, Bangalore. The
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medical bills are produced at Rs.85,300/-. PW.2
Dr.B.H.Banaraji, the Orthopedics Surgeon has assessed
the disability of 45% to the limb, 15% to the whole body
and the Tribunal has considered disability at 15% to the
whole body and same is proper. The petitioner is a 65
years old home maker and at that age having sustained
the injuries, she has to be compensated with Rs.30,000/-
towards pain and suffering, Rs.30,000/- towads loss of
amenities and discomfort, attendant charges food and
nourishment and conveyance at Rs.15,000/- together,
medical bills of Rs.85,300/- the amount of towards loss of
income during laid up period of six months comes to
Rs.24,000/-(4,000x6). The accident is of the year 2007, a
person with no proof of income will not earn less than
Rs.4,000/- p.m. Therefore, the notional income of the
petitioner is to be considered at Rs.4,000/-. Future loss of
income on account of injury will comes to Rs.50,400/-.
(4,000 x 12 x 7 x 15%). Total compensation comes to
Rs.2,34,700/- as against Rs.1,55,300/- assessed by the
Tribunal and thereby the enhancement is Rs.79,400/-. It is
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the just compensation that the petitioner is entitled to, in
the facts and circumstances of the case.
17. In view of the above discussion, appeal merits
consideration, in the result, the following:
ORDER
i) The appeal is allowed;
ii) The impugned judgment and awarded is
set aside;
iii) The claim petition filed by the petitioner
under Section 166 of the Motor Vehicles
Act, 1988 is allowed against the owner of
the vehicle;
iv) The petitioner is entitled to total
compensation of Rs.2,34,700/- with
interest at 6% p.a. from the date of
petition till the date of deposit;
v) Owner of the vehicle is directed to pay the
compensation within eight weeks from
receipt of certified copy of this order.
Sd/-
(T.G. SHIVASHANKARE GOWDA)
JUDGE
