Karnataka High Court
The Oriental Insurance Co Ltd vs Sri Ningappa on 27 September, 2022
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
1 MFA NO.7205/2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR
M.F.A.NO.7205/2014 (MV-I)
BETWEEN:
THE ORIENTAL INSURANCE CO LTD
C. NANJAPPA COMPLEX,
SUBHASH SQUARE,
HASSAN.
NOW REPRESENTED BY REGIONAL OFFICE,
HUBLI 2ND FLOOR,
"SUMANGALA COMPLEX"
LAMINGTON ROAD, HUBLI-580020.
REPRESENTED BY ITS
ASSISTANT MANAGER,
SRI. BALAKRISHNA K. NAYAK
... APPELLANT
(BY SRI. ASHOK N.PATIL, ADVOCATE)
AND:
1 . SRI NINGAPPA
S/O VEERABHADRAPPA,
AGED ABOUT 66 YEARS,
R/O CHATTANAHALLI VILLAGE,
YAGATI HOBLI,
KADUR TALUK,
CHIKMAGALUR DISTRICT-577101.
2 . SRI S.D KIRAN
S/O DASEGOWDA,
AGED ABOUT 27 YEARS,
2 MFA NO.7205/2014
DRIVER OF THE VEHICLE BEARING
REG.NO. KA-03-ED-2365
R/O DODDAMETIKURKI VILLAGE,
ARASIKERE TALUK,
HASSAN DISTRICT-573201.
3 . SRI. VELAYUDHAN
S/O LATE PACCHAMA,
AGED ABOUT 55 YEARS,
OWNER OF THE VEHICLE BEARING
REG. NO.KA-03-ED-2365,
R/O DINNEKOPPALU, ALUR TALUK,
HASSAN DISTRICT.
... RESPONDENTS
(BY SRI.P.NATARAJU, ADVOCATE FOR R1,
R2-NOTICE DISPENSEDWITH, V/O DATED 03.02.2021)
THIS M.F.A IS FILED UNDER SECTION 173(1)
OF MV ACT AGAINST THE JUDGMENT AND AWARD
DATED 26.07.2014 PASSED IN MVC NO.50/2008
ON THE FILE OF THE SENIOR CIVIL JUDGE, MACT,
KADUR, CHIKMAGALUR DISTRICT, AWARDING
COMPENSATION OF Rs.83,445/- WITH INTEREST @ 6%
P.A. FROM THE DATE OF PETITION TILL DEPOSIT.
THIS M.F.A. COMING ON FOR HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The appeal is filed by the Insurance Company challenging the judgment and award dated 26.07.2014 passed in MVC.No.50/2008 by the Senior 3 MFA NO.7205/2014 Civil Judge and MACT at Kadur, Chikmagalur District, questioning the quantum of compensation.
2. It is not in dispute that an accident occurred, which resulted in the injuries to the respondent No.1/claimant. It is also not in dispute that the claimant suffered grievous injuries.
3. The learned counsel for the appellant- Insurance Company submitted that there is enormous delay of 75 days in filing the complaint, but there is no proper explanation and also there is no iota of evidence to explain such delay. Therefore, submitted that the claim made by the claimant is false one. Further submitted that even after lodging the complaint after 75 days by the son of the claimant, but in the complaint, the number of motor cycle and name of the rider is shown, but there is no evidence as to how this vehicle number and name of the rider came to have been known by the son of the claimant. 4 MFA NO.7205/2014 Further submitted that, even though, in the complaint, it is stated that as he was taking treatment in the hospital for 75 days, he could not lodge the complaint in time. But to prove this delay, there is no evidence produced by the claimant. Therefore, submitted that the claim made by the claimant is to be rejected on two grounds, because there is no proper explanation for causing delay in lodging the complaint and involvement of motor cycle as stated in the complaint is not proved. Therefore, submitted that the Tribunal is wrong in awarding compensation as there is perverse approach by the Tribunal. Hence, prays to allow the appeal by setting aside the judgment and award passed by the Tribunal.
4. On the other hand, learned counsel for respondent No.1-claimant submitted that in the complaint it is stated that due to medical treatment taken in the hospital for 75 days, the delay of 75 days has caused in lodging the complaint and this is the 5 MFA NO.7205/2014 explanation given. Further submitted that from Exs.P.3-wound certificate, P.9-medical bills, P.10- medical prescriptions, P.11-outpatient record and P.12-medical certificate, it is proved that the claimant had taken treatment in various hospitals. Therefore, lodged the complaint on 02.08.2007. Therefore, submitted that mere delay is not a ground to reject the claim made by the claimant and in this regard, he places reliance on the judgment of the Hon'ble Apex Court in the case of Ravi vs. Badrinarayan & Others1. Therefore, submitted that the Tribunal after considering this principles of law and evidence on record has rightly allowed the claim petition and awarded compensation, which needs no interference. Therefore, prays to dismiss the appeal.
5. Further submitted that the claimant examined the doctor-C.W.1 who has stated that the 1 2011 AIR SCW 1530 6 MFA NO.7205/2014 claimant had suffered injuries in the road traffic accident. Therefore, his evidence is also sufficient to prove that the claimant had suffered injuries in the road traffic accident that occurred on 18.06.2007. Therefore, submitted that the evidence of R.W.2 is believable and also other evidences. Hence, submitted that the Tribunal is correct. Hence, prays to dismiss the appeal.
6. The Tribunal has allowed the claim petition in part by awarding compensation of rs.83,445/- with interest at the rate of 6% p.a., from the date of petition till its realization. The Tribunal held that the claimant had suffered injuries in the road traffic accident that occurred on 18.06.2007 by observing that the evidences produced by the claimant are believable. Further the Tribunal by placing reliance on the judgment of the Hon'ble Apex Court in the case of Ravi vs. Badrinarayan & Others (stated supra) has held that the delay in lodging the complaint cannot be 7 MFA NO.7205/2014 fatal to the claim proceedings. Hence, held that the accident was caused and the claimant has suffered injuries in the said accident and accordingly, awarded compensation.
7. In the present case, the accident is said to have occurred on 18.06.2007. The complaint is lodged before the police on 02.08.2007. There is delay of 75 days in lodging the complaint. In the complaint- Ex.P.2, an explanation is given that, since the claimant was taking treatment in several hospitals, therefore, could not file the complaint before 02.08.2007 and hence, lodged the complaint only on 02.08.2007. In this regard, the learned counsel for respondent No.1-claimant submitted that, initially soon after the accident, the claimant was shifted to the Government Hospital at Kadur on 18.06.2007 and on the very same day admitted to Balaji Nursing Home, Kadur. Then on the next day admitted to Vishwamanava Hospital, Birur, on 19.06.2007 and 8 MFA NO.7205/2014 remained in the said hospital till 30.06.2007 and then once again admitted to the Government Hospital, Kadur, on 01.07.2007 till 02.08.2007 and thereafterwords taken treatment in SSIR Hospital, Davanagere. Therefore, it is submitted by the learned counsel for respondent No.1 that the claimant has taken treatment in several hospitals till 02.08.2007. To substantiate this, the claimant has not produced any documentary medical evidence to prove that he had taken treatment at various hospitals. The claimant could have very well produced the discharge summaries or inpatient records issued by the hospitals as above stated, but that have not been produced. Further more, the claimant atleast ought to have put minimum effort for summoning the medical records issued from the hospitals by invoking the provision under Order XVI Rule 6 of CPC, but this minimum exercise has not been done by the claimant. Therefore, absolutely, there is no evidence on the part 9 MFA NO.7205/2014 of the claimant to prove as to why such enormous delay of 75 days in lodging the complaint.
8. The Hon'ble Apex Court in the case of Ravi vs. Badrinarayan & Others (stated supra), it was held that mere delay in lodging the complaint is not a ground to throw away the claim petition, provided there must be sufficient explanation in causing such delay. But, in the present case, there is no explanation by the claimant and proof for the said delay. When it is the case of the claimant that he has taken treatment in various hospitals being inpatient as above stated, then the burden lies on the claimant to produce the medical records issued from the hospital authorities or atleast ought to have put minimum effort for summoning the medical records issued from the hospital authorities. But this has not been done by the claimant. Therefore, in the absence of proof regarding delay caused, the judgment of the Hon'ble 10 MFA NO.7205/2014 Apex Court in the case of Ravi vs. Badrinarayan & Others (stated supra) is not helpful to the claimant.
9. Further in Ex.P.3-wound certificate issued by the Government Hospital, Kadur, even though, it is stated as road traffic accident occurred on 18.06.2007 and in the course of cross-examination, the claimant has admitted that he does not know the number of motor cycle and the name of the rider, but in the complaint Ex.P.2 the number of motor cycle and name of the rider is mentioned. It is also stated in the said complaint that one person who had seen the accident had taken the claimant to the hospital, but the said eye witness who has taken the claimant to the hospital has not been examined before the Tribunal. The complainant is none other than the son of the claimant and then the complainant also could have been examined before the Tribunal in order to prove as to how he came to know the number of motor cycle and the name of rider of motor cycle, but the 11 MFA NO.7205/2014 complainant, even though, he is the son of the claimant is not examined before the Tribunal. Just because, the eye witness is examined in the Criminal Court, that does not mean that the said evidence can be considered in the claim proceedings initiated under Section 166 of the MV Act. This argument of the learned counsel for respondent No.1- claimant is a mis-concieved one. The Tribunal had observed in its judgment that the Investigation Officer had filed the charge sheet. Hence, the accident is proved.
10. But upon perusal of the records and also the annexures stated in the judgment of the Tribunal, no charge sheet material is filed by the claimant, but the Tribunal has wrongly observed that the charge sheet is filed. Therefore, the Tribunal is not correct in appreciating the evidence on record.
11. Further the documentary evidence Ex.P.9-9 medical bills, Exs.P.10-Medical prescriptions, P.11- 12 MFA NO.7205/2014 outpatient record and P.12-medical certificate, P.13- Two x-ray films and P.14-insurance premium paid receipt, but these documents do not prove that the claimant had sustained injuries in the road traffic accident and having taken treatment in various hospitals as inpatient, but the Tribunal has wrongly relied on these documents by coming to the conclusion that it was a road traffic accident and the claimant had suffered injuries. Therefore, on all these reasons, it is not proved that the claimant had suffered injuries in the road traffic accident and the motor cycle No.KA.03/ED.2365 was involved in the accident. Therefore, the observations and findings of the Tribunal in this regard is found to be perverse one. Hence, the judgment and award passed by the Tribunal is liable to be set aside. Consequently, the appeal is liable to be allowed. Hence, I proceed to pass the following 13 MFA NO.7205/2014 ORDER The appeal is allowed.
The impugned judgment and award dated 26.07.2014 passed in MVC.No.50/2008 by the Senior Civil Judge and MACT at Kadur, Chikmagalur District, is hereby set aside.
The amount deposited by the appellant- Insurance company shall be refunded to the appellant-Insurance Company and transmit the TCR to the Tribunal along with copy of this order forthwith.
No order as to costs.
Sd/-
JUDGE PB