Karnataka High Court
S T Deepu vs The New India Assurance Co Ltd on 20 July, 2018
Author: Krishna S Dixit
Bench: Krishna S.Dixit
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF JULY, 2018
BEFORE
THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT
M.F.A. NO. 2006 OF 2010 (MV)
C/W
M.FA. NO. 1763 OF 2010 (MV)
IN M.F.A NO. 2006 OF 2010:
BETWEEN:
S T DEEPU
S/O KLT SREEDHAR RAJ
AGED ABOUT 35 YEARS
R/A NO.48, 12TH A CROSS
VYALIKAVAL
BENGALURU - 03. ... APPELLANT
(BY SRI.SHRIPAD V SHASTRI, ADVOCATE)
AND:
1. THE NEW INDIA ASSURANCE CO.LTD.,
R.O.2B, UNITY BUILDING
ANNEXE MISSION ROAD
BENGALURU - 27.
2. MR.NAGI REDDY
S/O RAM REDDY
MAJOR,
R/A SRINIVAS NAGAR
KODAD DIST, KALGOND DIT
ANDHRA PRADESH
... RESPONDENTS
(BY SRI.M NARAYANAPPA, ADVOCATE FOR R1,
2
VIDE ORDER DATED 16/02/2012,
NOTICE TO R2 DISPENSED WITH)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND
AWARD DATED 26.09.2009 PASSED IN MVC NO.6746/2006
ON THE FILE OF CHIEF JUDGE, COURT OF SMALL CAUSES,
PRINCIPAL MACT, BENGALURU, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
IN M.F.A NO. 1763 OF 2010:
BETWEEN:
THE NEW INDIA ASSURANCE CO LTD
NO.143,OLD CLUB ROAD,KHANNAM,
THROUGH ITS REGIONAL OFFICE,
UNITY BUILDING ANNEXE,
MISSION ROAD, BENGALURU - 27
REP BY ITS DEPUTY MANAGER
SRI C.R. SUBRAMANYA ... APPELLANT
(BY SRI. B C SEETHARAMA RAO, ADVOCATE)
AND:
1. SRI S T DEEPU
AGED ABOUT 35 YEARS
S/O LATE SREEDHAR RAJ
R/AT NO.48, 12TH A CROSS
VYALIKAVAL
BENGALURU - 03.
2. MR NAGI REDDY MAJOR
S/O RAM REDDY,
R/O SRINIVASNAGAR
KODAD DISTRICT,KALGOND DISTRICT
3
ANDHRA PRADESH
(OWNER OF LORRY
NO.AP.24/V-3007) ... RESPONDENTS
(BY SRI.SRIPAD V SHASTRI, ADVOCATE FOR R1)
THIS MISCELLANEOUS FIRST APPEAL FILED UNDER
SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND
AWARD DATED 26.09.2009 PASSED IN MVC NO.6746/2006
ON THE FILE OF PRINCIPAL MACT & CHIEF JUDGE, COURT
OF SMALL CAUSES, BENGALURU, AWARDING A
COMPENSATION OF RS.2,40,400/- WITH INTEREST @ 6% P.A.
FROM THE DATE OF PETITION TILL REALISATION.
THESE APPEALS HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT, THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING
JUDGMENT
The insurer's appeal in M.F.A. No.1763/2010 and the claimant's appeal in M.F.A.No.2006/2010 lay a challenge to the very same judgment and award dated 26.09.2009 allowing claimant's M.V.C.No.6746/2006, whereby a compensation of Rs.2,40,400/- has been awarded with 6% interest per annum, and with the usual condition of bank deposit of Rs.1,00,000/- therefrom.
2. The brief facts of the case are that:
4
a) On 07.06.2006 at around 11.20 a.m. the claimant was riding his motorcycle bearing Registration No.KA-04-S-6660 opposite Asian Paint Store in Bhadrappa Layout, Bengaluru; the offending transport vehicle ie., lorry bearing Registration No.AP-24-V-3007 coming as it was in a rash and negligent manner, dashed the motorcycle from behind; consequently the claimant fell down and sustained grievous injuries.
b) The claimant filed M.V.C.No.6746/2006 seeking a compensation of Rs.8 lakhs. The insurer filed his Objection Statement resisting the claim. To prove his claim, claimant got examined himself as PW-1 and Dr.Harshad M.Shah as PW-2. An independent witness Narayana Reddy was examined as PW-3. In the evidence of the claimant's side 15 documents came to be marked as Exs. P-1 to P-15 which included the police papers, medical records and the driving license. From the side of the insurer, one A.M.Shekhariah was examined as RW-1 and three documents came to be marked in his evidence. 5
c) The M.A.C.T. after looking to the respective stand of the litigating parties and after weighing the evidentiary material has entered the impugned judgment and award. The same are challenged both by the claimant and the owner of the vehicle on the grounds of inadequacy of compensation and higher compensation respectively.
3. Since both these appeals arise from the very same judgment and award and both involve the very same parties, the identical questions of law and facts would arise. Therefore as requested by both the sides, these appeals are heard together and are disposed of by this common judgment.
4. Learned counsel for the appellant-insurer submits that the entire claim is founded on bogus documents and spurious records and thus the claimant has abused the process of the Court and therefore in addition to the claimant being non-suited, exemplary costs should be imposed on him. In support of his submission, he contends that the earliest medical record placed on record show that the claimant had sustained the injuries because 6 of fall from his own motorcycle near the parked lorry; the F.I.R. was lodged one month after the alleged incident with no plausible explanation for the delay brooked in such lodging; even Ex.P-3, which is a mahazar also does not mention as to how the accident occurred except stating that the lorry is involved and strangely the registration number is not mentioned.
5. The learned counsel for the claimant, per contra, submits that the claimant himself was examined as PW-1 and the doctor who treated him was examined as PW-2; he has produced 15 documents on record, which include the F.I.R. and the charge sheet; since he was hospitalized for a period of one month there is a delay of one month in lodging the F.I.R. The police have investigated into the matter and have filed the charge sheet, which prima facie supports the case of claimant. Lastly, he submits that the M.A.C.T. being an expert statutory body in its accumulated wisdom has looked into all the aspects of the matter and only thereafter has recorded a finding as to the accident and the consequential injuries and therefore due deference 7 should be shown to its views; he also submits that another view is possible, constitutes no ground for indulgence in appellate jurisdiction. Elaborating his submissions in support of his appeal, the counsel claims enhancement of compensation pointing out that what has been awarded is too meagre to be mentioned.
6. Having heard the learned counsel for the claimant and the learned counsel for the insurer. I have also perused the original L.C.R. and the appeal papers.
7. The contention of the learned counsel for the insurer that the earliest version of the claimant as found from the medical records should be taken, stands to reason. In the medical records placed on record by the insurer in the Ex.R series, nothing has been mentioned about the happening of the accident as the cause of the injuries. No explanation is offered as to this lapse. In the records that came into existence at the earliest point of time, what is mentioned is only the lorry sans its registration number or minimum identity characteristics. This too generates a 8 thick ring of doubt as to the involvement of the lorry in question.
8. Secondly, the accident happened on 07.06.2006 and the F.I.R. is lodged on 06.07.2006 ie., exactly a month after the incident; since it is allegedly a medico-legal case, the need for the claimant himself visiting the police station for lodging the F.I.R. does not merit acceptance, inasmuch as police would be visiting the injured in the hospital itself. Therefore, the explanation that delay in lodging the F.I.R. is because of hospitalization becomes doubtful.
9. The version of the claimant in the course of his deposition also does not generate credibility and confidence. The contention of the learned counsel for the appellant that ordinarily once the charge sheet is filed, the version arising therefrom should gain acceptance, appears to be attractive at the first blush. However, deeper consideration of other vital evidentiary material nullifies the so called version arising from the said charge sheet allegedly in support of the claimant. Nothing has been stated as to what happened to the criminal case, even at 9 this length of time. Therefore much mileage cannot be derived by the mere factum of the filing of the charge sheet, that too, when the same is without complete police papers.
10. In the above circumstances, the entire case of the claimant becomes doubtful. I am at loss to know why the documents placed on record by the insurer were not duly adverted to by the M.A.C.T. Had they been adverted, perhaps, the result of the case would have been different. Be it as it may. But, I should hasten to add that there is no sufficient material to hold that this is a case of concocted evidence. The proceedings before the M.A.C.T. being summary in nature, it is bit difficult to entertain the contention as to the concoction of documents, merely on the basis of what is available on record. However, the case of the claimant, I hold, is not probabalized by the evidentiary material on record even going by the 'Rule of Preponderance of Probability'.
11. In the above circumstances, I make the following: 10
ORDER The claimant's appeal in M.F.A.No.2006/2010 stands dismissed.
The insurer's appeal in M.F.A.No.1763/2010 is allowed. The impugned judgment and award are set at naught.
The amount in deposit in the Registry shall be refunded to the appellant-insurer, forthwith.
Sd/-
JUDGE Snb/