Allowed

Bajaj Allianz General Insurance Company Ltd. v. P S Manjunath

Karnataka HC26 Nov 2020MFA/9717/2010

Case brief

AI extract

What is this about?

The Karnataka High Court allowed an appeal by an insurer against a compensation award. The court found the Commissioner perverse for ignoring contradictions in the claimant's medical reports that indicated the injury occurred from a 'self fall' prior to the alleged accident, rather than a road traffic accident during employment.

What did the court decide?

The impugned award of the Commissioner dated 14.05.2010 is set aside. The claim petition is dismissed. The deposit amount is refunded to the appellant.

Bajaj Allianz General Insurance Company Ltd. Vs P S Manjunath — Insurance | Karnataka HC (2020)

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M.F.A.NO.9717/2010

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 26^TH DAY OF NOVEMBER 2020

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BEFORE

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THE HON’BLE MRS JUSTICE K.S.MUDAGAL

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MISCELLANEOUS FIRST APPEAL NO.9717/2010 (WC)

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BETWEEN:

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BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LTD NO.363, SRI. HARI COMPLEX SEETHA VILAS ROAD MYSORE – 24 REPRESENTED BY REGIONAL OFFICE BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LTD T B TOWERS, NEXT TO JAIN TEMPLE RESIDENCY ROAD, BANGALORE … APPELLANT

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(BY SMT.H.R.RENUKA, ADVOCATE)

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AND:

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P.S.MANJUNATH S/O SEETHARAMAIAH AGED ABOUT 33 YEARS NO.78, GANESH NAGAR N.R.MOHALLA B BLOCK, MYSORE

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E.INDUDHARA S/O ESHWARAPPA AGED ABOUT 38 YEARS NO.5562, I MAIN, II CROSS, VIJAYANAGAR, II STAGE MYSORE – 17 … RESPONDENTS

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(R-1 IS SERVED AND UNREPRESENTED,

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NOTICE TO R2 IS HELD SUFFICIENT V/O DATED 03.09.2015 )

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M.F.A.NO.9717/2010

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THIS MFA IS FILED UNDER SECTION 30(1) OF W.C. ACT AGAINST THE JUDGMENT DATED 14.05.2010 PASSED IN WCA-1/NFC/CR-167/2007 ON THE FILE OF THE LABOUR OFFICER AND COMMISSIONER FOR WORKMEN COMPENSATION, MYSORE DISTRICT, MYSORE, AWARDING A COMPENSATION OF RS.2,12,825/-

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THIS MFA COMING ON FOR HEARING THIS DAY, THE COURT THROUGH VIDEO CONFERENCE DELIVERED THE FOLLOWING:

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J U D G M E N T

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Aggrieved by the award dated 14.05.2010 in WCA/NFC/CR-167/2007 passed by the Workmen's Compensation Commissioner, Mysore the Insurer has filed the above appeal. By the impugned award, the Commissioner has granted compensation of Rs.2,12,825/- to the first respondent payable by the appellant.

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The appellant was respondent No.2, respondent No.1 was the claimant and respondent No.2 was respondent No.1 in the proceedings before the Commissioner. For the purpose of convenience, the parties will be referred to henceforth with their ranks before the Commissioner.

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M.F.A.NO.9717/2010

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Respondent No.1 was the owner of goods

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auto bearing No.KA-09/A-4515 and respondent No.2 was the insurer of the same. Claimant contended that respondent No.1 had employed him to the said autorickshaw as the driver and on 10/11/2006 at about 11.15 a.m. when he was proceeding in the said goods auto with the load of PVC Pipes, the vehicle met with an accident near Nirmithi Kendra, Hebbal Industrial Layout, Mysore. He claimed that in the said accident he suffered fracture of his left leg, underwent surgery for the same and has suffered permanent disability. Thus he claimed compensation of Rs.8,00,000/-.

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Respondent No.1 in his written statement admitted the relationship of employer and employee, but denied the occurrence of the accident, the injuries alleged by the claimant etc. However, he claimed that since the vehicle was insured with the second respondent, if at all any compensation is awarded, the second respondent is liable to indemnify the same.

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M.F.A.NO.9717/2010

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The second respondent contested the petition denying the jural relationship, occurrence of the accident, injuries and consequential disability. The second respondent further claimed that on the date of the accident, the vehicle was not insured and the claimant was not holding valid driving licence, therefore it was not liable to pay compensation.

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Before the Commissioner, petitioner got examined himself and one Dr.Marulasiddappa who allegedly treated him. The representative of the second respondent was examined and three documents were marked.

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The Commissioner on hearing the parties by the impugned award held that the accident arose out of the employment and during the course of the employment. The Commissioner assessed the wages at Rs.3000/- per month, loss of earning capacity at 60%, the age of the claimant as 35 years and applied 195.06 factor awarded compensation of Rs.2,25.825/-. The Commissioner further held that the vehicle was

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M.F.A.NO.9717/2010

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covered with the Insurance policy issued by the second respondent, therefore it was liable to pay the compensation.

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Aggrieved by the said order, the second respondent Insurer has preferred the above appeal. This Court admitted the appeal to consider the following substantial question of law:

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“In holding that the claimant suffered injuries during the course of employment and those injuries arose out of the employment, whether the Commissioner acted contrary to the recitals in Exs.P7, P9 and 10 and the judgment of the Hon'ble Supreme Court in Oriental Insurance Company vs. Premlata Shukla and others (2007) 13 SCC 476 ?”

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Smt.H.R.Renuka, learned counsel for the

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appellant seeks to assail the award of the Commissioner on the following grounds:

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i) The claimant’s own documents Ex.P7 wound certificate and P10 discharge summary show that the alleged injuries were not due to the accident occurred in Mysore, but they were due to the accidental fall by himself in Srirangapatna.

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M.F.A.NO.9717/2010

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ii) Even according to the doctor the claimant was treated from 11.10.2006, therefore the whole story of accident was a fraud not only on the other side, but also on the Court.

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iii) While appreciating the evidence the Commissioner acted contrary to the judgment of the Hon’ble Supreme Court in Premlata Shukla’s case referred to supra .

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In the claim petition, the claimant contended that the accident occurred on 10.11.2006. Even that date is corrected in para 2 of the petition. It reveals that initially it was typed as 10.12.2006 and that was corrected as 10.11.2006. According to the claim petition, soon after the accident claimant was shifted to K.R.Hospital, Mysore for treatment.

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Ex.P9 the discharge card-cum-identity card

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states that the claimant was admitted into the hospital as inpatient on 11.12.2006 and he was discharged on 06.01.2007. Again the date was corrected from 03.01.2007 to 06.01.2007. In Ex.P10 the discharge

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M.F.A.NO.9717/2010

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summary/follow up sheet maintained in K.R.Hospital, Mysore the date of admission into the Hospital is shown as 11.10.2006. That was much before the alleged accident dated 10.11.2006. In page 18 of the said case

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sheet the history is mentioned as ‘self fall - 12 days back’ .

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In Ex.P10 under the caption ‘Investigation

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Reports’, the history is mentioned as follows:

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“self fall on 11.10.2006 at about 11.15 am. near Srirangapatna sustained injury to right leg”

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The certified copy of the FIR is not produced. Ex.P7 the copy of the wound certificate submitted by the claimant himself reveals it is purportedly issued on the date of his appearance before the Chief Medical hospital in K.R.Hospital, Mysore. The Medical Officer, K.R.Hospital Mysore states that the Insurer first appeared before the Medical Officer in K.R.Hospital on 20.12.2006 on 11.35 a.m. The original

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of the said document is not produced. Apparently in the

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M.F.A.NO.9717/2010

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said documents, the “history of road traffic accident when he was driving the goods auto” is interpolated.

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The doctor who examined the claimant in his chief-examination itself stated that the claimant appeared in the hospital on 11.10.2006, but he gives the history as Road traffic accident. The said statement is contrary to the medical records Exs.P9 and P10. In the cross-examination he stated that he has not given treatment to claimant for the accident which occurred on 10.11.2006 and he does not know if on 10.11.2006 the claimant met with an accident.

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The Commissioner overlooks such material contradictions in the claimant’s own documents Exs.P7, P9 and P10 and relies upon Ex.P1 to P6 viz., the FIR, complaint, spot mahazar, Motor Vehicle Inspector’s report, sketch of scene of offence allegedly drawn in the case and Ex.P8 the charge sheet. The Commissioner failed to note that those documents were not even certified copies issued by the jurisdictional Court.

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M.F.A.NO.9717/2010

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Further the accident allegedly took place on

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10.11.2006. The complaint was purportedly filed on 05.01.2007 by another inmate of the said vehicle. The other person who filed the complaint was not examined. Delay in filing the complaint was not explained. Ex.P1 does not indicate when the FIR reached the Magistrate.

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In the light of the claimant’s own documents and evidence of the doctor (his own witness) to the effect that the claimant was treated much prior to the alleged date of accident, the Commissioner was not justified in ignoring those documents. The claimant cannot approbate and reprobate. He cannot seek to rely on Exs.P7, P9 and P10 to claim that in the accident he has suffered permanent disability, due to the injuries mentioned in those documents and at the same time, seek to reject the other contents of the documents regarding date and history of injuries.

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In Premlata Shukla’s case referred to supra the Hon’ble Supreme Court in para 13 and 14 of the judgment held as follows:

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M.F.A.NO.9717/2010

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“13. However, the factum of an accident could also be proved from the First Information Report. It is also to be noted that once a part of the contents of the document is admitted in evidence, the party bringing the same on record cannot be permitted to turn round and contend that the other contents contained in the rest part thereof had not been proved. Both the parties have relied thereupon. It was marked as an Exhibit as both the parties intended to rely upon them.

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Once a part of it is relied upon by both the parties, the learned Tribunal cannot be said to have committed any illegality in relying upon the other part, irrespective of the contents of the document been proved or not . If the contents have been proved, the question of reliance thereupon only upon a part thereof and not upon the rest, on the technical ground that the same had not been proved in accordance with law, would not arise.”

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(Emphasis supplied)

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Further, referring to the judgment in

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Hukam Singh and others vs. Smt.Udham Kaur¹ in

1 1969 PLR 908

M.F.A.NO.9717/2010

para 15 of the aforesaid judgment, it was held that when the parties themselves have allowed certain statements to be placed on the record as a part of their evidence, it is not open to them to urge later in the same Court or in a Court of appeal that the evidence produced was inadmissible. It was further held that to allow the parties to do so would amount to permitting them approbate and reprobate.

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In the light of the observations made with regard to the entries in Ex.P7, P9 and P10 and the judgment of the Hon'ble Supreme Court in Premlata Shukla’s case the Commissioner was wholly unjustified in supplying his own hypothesis that the doctors might have mistakenly or accidentally made such entry in those records. Therefore the finding of the Commissioner that claimant suffered injuries due to road traffic accident in the course of his employment is contrary to the Hon’ble Supreme Court’s judgment in Premlata Shukla’s case and suffers perversity. The

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M.F.A.NO.9717/2010

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substantial question of law No.1 is answered accordingly. The appeal is allowed.

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The impugned award of the Commissioner dated 14.05.2010 in CR No.167/2007 is hereby set aside. The claim petition of the claimant is hereby dismissed. The amount in deposit shall be refunded to the appellant.

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Sd/JUDGE

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akc

Bajaj Allianz General Insurance Company Ltd. v. P S Manjunath

Case brief

What is this about?

What did the court decide?

Bajaj Allianz General Insurance Company Ltd. v. P S Manjunath

Case brief

What is this about?

What did the court decide?

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