Karnataka High Court
T H Chandru S/O Ningaiah vs Hemanthkumar S/O B Lakshmegowda on 3 September, 2022
Author: N S Sanjay Gowda
Bench: N S Sanjay Gowda
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MFA No. 2135 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE N S SANJAY GOWDA
MISCELLANEOUS FIRST APPEAL NO.2135 OF 2012(MV)
BETWEEN:
T.H.CHANDRU,
S/O NINGAIAH,
AGED ABOUT 32 YEARS,
R/O THAGADUR VILLAGE,
NUGGEHALLI HOBLI, CHANNARAYAPATNA TALUK,
HASSAN DISTRICT - 573 201.
...APPELLANT
(BY SRI.K.MAHESH, ADVOCATE)
AND:
1. HEMANTHKUMAR,
S/O B.LAKSHMEGOWDA,
R/O 7TH CROSS, K R PURAM, HASSAN,
Digitally HASSAN DISTRICT - 573 201.
signed by (OWNER AND RIDER OF THE HERO HONDA
PANKAJA S
SPLENDOR BIKE BEARING NO.KA-13-Q-5506).
Location:
High Court
of Karnataka THE MANAGER,
2. BAJAJ ALLIANZ GEN. INS. CO. LTD.,
B.M.ROAD, HASSAN,
HASSAN DISTRICT - 573 201.
(POLICY NO.0G-09-1712-1802-00001017
DATED 24.01.2009)
...RESPONDENTS
(BY SRI.H.N.KESHAVA PRASHANTH, ADV., FOR R2;
R1 SERVED)
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MFA No. 2135 of 2012
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 8.8.2011 PASSED IN MVC
NO.170/2011 ON THE FILE OF THE PRESIDING OFFICER, FAST
TRACK COURT, CHANNARAYAPATNA, DISMISSING THE CLAIM
PETITION FOR COMPENSATION.
THIS APPEAL COMING ON FINAL HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. The claimant is in appeal challenging the dismissal of his claim petition.
2. The Tribunal has dismissed the claim petition on the ground that the complaint was lodged to the police 27 days after the claimant was discharged and the police had filed a charge sheet within three days of lodging the compliant.
3. The Tribunal has also observed that PW2 - the doctor who had treated the claimant at SSM Hospital had stated that the claimant had come to the SSM Hospital from S.C.Hospital, Hassan and since the claimant had not stated anything about undergoing treatment at S.C. Hospital, it was doubtful whether the accident ever took place.
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4. The doctor who has treated the claimant has stated in his cross examination as follows:
"CfðzÁgÀ£ÀÄ £ÀªÀÄä D¸ÀàvÉæUÉ 16-8-08 gÀAzÀÄ §A¢gÀÄvÁÛ£É. DvÀ£ÀÄ 15-8-08 gÀAzÀÄ J¸ï.¹ D¸ÀàvÉæUÉ zÁR¯ÁVzÀÝ ªÉüÉAiÀÄ°è C¥ÀWÁvÀzÀ §UÉÎ ¥ÉÆðøÀjUÉ ªÀiÁ»w ¤ÃrzÀÝ «ZÁgÀ w½zÀÄ §A¢gÀÄvÀÛzÉ. DzÀ PÁgÀt £ÀªÀÄä D¸ÀàvÉæ¬ÄAzÀ ¥ÉÆðøÀjUÉ ªÀiÁ»w ¤Ãr®è. J¸ï.¹ D¸ÀàvÉæ¬ÄAzÀ ¥ÉÆðøÀjUÉ ªÀiÁ»w ¤ÃqÉzÀÝ §UÉÎ £Á£ÀÄ zÁR¯É £ÉÆÃr®è. F ¢£À £Á£ÀÄ JA E¯ï ¹ jf¸ÀÖçgï vÀA¢®è. ¸ÁQë ªÀÄÄAzÀĪÀgÉzÀÄ D¸ÀàvÉæAiÀÄ £ËPÀgÀgÀÄ UÉÊgÀÄ ºÁdgÁVgÀĪÀ PÁgÀt ¸ÀzÀj zÁR¯ÉUÀ¼À£ÀÄ vÀgÀ®Ä DV®è JAzÀÄ ºÉüÀÄvÁÛgÉ."
5. A reading of the said cross examination indicates that the doctor was under the impression that the M.L.C intimation was given by the S.C.Hospital to which the claimant had first gone on 16.08.2008 and the doctor has deposed that it is for that reason this hospital did not give intimation to the police. The medical record produced by the claimant consistently indicates of a record being made that it was a case of a road traffic accident. The doctor has -4- MFA No. 2135 of 2012 also categorically stated that he treated the claimant for more than 15 days from 16.08.2008.
6. It is to be stated here that merely because the M.L.C intimation is not produced, it cannot leads to an inference that no accident took place. It is also to be borne in mind that if the hospital authorities fail to intimate the police, that would not lead to the inference that no accident occurred.
7. Strictly speaking, under the provisions of the Motor Vehicles Act, it is not an absolute necessity for a motor vehicle accident victim to lodge an FIR. All that is required to be established in a claim under the Motor Vehicles Act is as to whether the accident occurred and there was any injury sustained or a death occurred as a result of the motor vehicle accident, for which, the claimant is required to be compensated. The manner of proving this motor vehicle accident could be in very many ways, including production of the medical records. Merely because there is -5- MFA No. 2135 of 2012 a delay in lodging of the complaint, the claim petition cannot be dismissed.
8. In this case, it is to be noticed that the claimant was hospitalized from 16.08.2008 to 25.08.2008. The injuries suffered by the claimant was a fracture of femur and he had also undergone a surgical procedure. The evidence on record also indicates that he had suffered an infection and obviously not in a position to move around. In a situation where the claimant has become a victim of a motor vehicle accident, and had suffered a fracture, it will have to be kept in mind that primary intention of the victim would be to ensure that he recovers from the injury and the lodging of the complaint would not be an immediate priority for him.
9. In the present case, as stated above, the claimant was hospitalized for more than 10 days and his brother has lodged a complaint thereafter. The injuries suffered by him indicate that it can only be in relation to the motor -6- MFA No. 2135 of 2012 vehicle accident and this is borne out from the record of the doctors in their case sheets.
10. In this view of the matter, I am of the view that the Tribunal has erred in coming to the conclusion that the accident had not been established.
11. The observation of the Tribunal that the charge sheet was filed within three days of the complaint being lodged and this causes a serious doubt of the accident cannot also be accepted, having regard to the fact that the owner of the offending motor cycle did not specifically deny the occurrence of the accident. In his objections, he denied all the averments and ultimately stated that his vehicle was covered with an insurance policy and the insurance company would be liable for the compensation.
12. It is to be stated here that the owner of the vehicle also did not chose to step into the box to establish his defence. The insurer also did not summon the owner or adduced any other evidence to indicate that no accident occurred.
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13. In the light of the evidence adduced by the claimant and also the medical records, the finding of the Tribunal cannot be sustained and it is accordingly set-aside and it is held that the accident did occur between the insured vehicle and the claimant.
14. As far as the compensation is concerned, the Tribunal has awarded the following compensation.
Sl. Description Amount
No. (in Rs.)
1 Pain and suffering 30,000-00
2 Medical Expenses 60,000-00
3 Loss of income during the 13,500-00
period of treatment
4 Loss of amenities 5,000-00
TOTAL 1,08,500-00
15. In my view, having regard to the nature of injuries suffered by the claimant, which was a fracture of femur, the compensation awarded is just and proper and does not require any enhancement.
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16. Consequently, the appeal is allowed in part. The dismissal of the claim petition by the Tribunal is set-aside and the claimant is held entitled to a compensation of Rs.1,08,500/-, which shall carry interest at the rate of 6% per annum from the date of petition till its realization.
17. The Insurance Company is directed to deposit the compensation amount within eight weeks from the date of receipt of a copy of this order.
18. The amount in deposit shall be transferred to the Tribunal for disbursal in terms of the impugned award.
SD/-
JUDGE GH List No.: 1 Sl No.: 33