Allowed

Sri Praneyata Sharma v. the Manager

Karnataka HC7 Apr 2022MFA/10203/2011

Case brief

AI extract

What is this about?

The High Court allowed an appeal against a Motor Accident Tribunal order dismissing a compensation claim. The Court set aside the impugned order, held that the factum of the accident wasproved, and remanded the matter to the Tribunal solely for assessing the compensation quantum without re-adjudicating the accident details.

What did the court decide?

The appeal is allowed; the impugned judgment and award are set aside; the case is remanded to the Tribunal for assessment of compensation.

Sri Praneyata Sharma Vs the Manager — Motor Accident Claims | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 7^TH DAY OF APRIL, 2022

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BEFORE

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THE HON'BLE Mr. JUSTICE HANCHATE SANJEEVKUMAR

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M.F.A.NO.10203/2011(MV)

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BETWEEN :

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SRI PRANEYATA SHARMA D/O PRAMOD SHARMA AGED ABOUT 16 YEARS THE APPELLANT IS MINOR REP. BY HER NATURAL GUARDIAN MOTHER NAMRATH P.SHARMA W/O PRAMOD SHARMA AGED ABOUT 43 YEARS NO.S-101, INNOVATIVE NATURA APARTMENT, VINAYAKA LAYOUT, ANANTPUR GATE, BANGALORE-65.

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...APPELLANT

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(BY SRI P.MAHADEVA SWAMY, ADV.,)

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AND

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1 . THE MANAGER THE ORIENTAL INSURANCE CO., LTD., DO.11, NO.663, 1^ST FLOOR 1^ST MAN, DEFENCE COLONY, 100 FEET ROAD, INDIRANGAR 1^ST STAGE, BENGALURU-23.

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2 . SRI ANJANEYULU P.S.R NO.202, BLOCK II, R.K.APARTMENTS, HOYSALA NAGAR, BANGALORE-16.

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…RESPONDENTS

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(BY SRI.O MAHESH, ADV., FOR R1 APPEARING THROUGH VC; R2-SERVED)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:31.01.2011 PASSED IN MVC NO.1677/2010 ON THE FILE OF COURT OF SMALL CAUSES & MACT, (ACMM-21) BANGALORE DISMISSING THE CLAIM PETITION FOR COMPENSATION.

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

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JUDGMENT

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The present appeal is filed by the

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appellant/claimant challenging the judgment and award dated 31.01.2011 in MVC.No.1677/2010 passed by the Court of Small Causes & MACT, (ACMM21), Bengaluru. The Tribunal has dismissed the claim petition filed by the claimant. Being aggrieved by the dismissal of the claim petition, the claimant has preferred the present appeal before this Court.

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Brief facts of the case are as under:

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On 29.12.2009 at about 6.30 p.m., the appellant/claimant being a cyclist was crossing the Double Road near Sheshadripuram School east west wise by observing the traffic rules. When she was crossing the road, all of a sudden, the driver of the Car bearing Reg.No.KA-53-N-3664 drove the same in a rash and negligent manner without observing the traffic rules and regulations and took sudden left turn and hit the appellant/claimant. Due to the impact, the appellant/claimant fell down and sustained fracture of left tibia and abrasions all over the body. Immediately after the accident, the appellant/claimant was shifted to Neha Prakash Hospital and later on, she was shifted to Columbia Asia Hospital for further treatment and then shifted to Sagar Apollo Hospital, wherein she took treatment as an inpatient and underwent surgery of internal fixation towards fracture and till today, she is taking treatment as an outpatient.

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Learned counsel appearing for the

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appellant/claimant submitted that while answering issue No.1, the Tribunal went on making observations on hypothetical basis and the reasons and observations assigned by the Tribunal are merely on surmises and conjectures. Therefore, the observations and findings assigned by the Tribunal are not correct. Further submitted that, if the police have not carried out the investigation properly and if the hospital authorities have not sent the Medico Legal Case Register Extract to the police station that cannot be found fault with the claimant, since the claimant is injured and she does not have any control over some aspect. Further more, the claimant is 15 years old girl and soon after the accident, the claimant was admitted to the hospital for a period of 5 days. Therefore, there may be some delay in lodging the complaint and that cannot alone be made as a ground to reject the claim petition. Therefore, prays to allow

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the appeal as findings given by the Tribunal are not correct.

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On the other hand, learned counsel appearing for respondent No.1 - Insurance Company submitted that the involvement of Maruthi Car bearing Reg.No.KA-53-N-3664 is not proved and the Tribunal has expressed its doubt correctly, which needs no interference. Further submitted that the Tribunal has elaborately discussed regarding the factum of accident and involvement of the car. Therefore, the Tribunal has rightly come to the conclusion that there is doubt regarding involvement of the car in the accident and has correctly dismissed the claim petition. Therefore, prays to dismiss the appeal.

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Further submitted that there is a delay of four days in lodging the complaint before the police. Therefore, there might have been chances of manipulation of involvement of car just to get

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compensation. Further more, soon after the accident, the claimant was admitted to the hospital, then there could have been chances of sending information to the police in the form of Medico Legal Case Register, but in the present case, there is no evidence to show that the Medico Legal Case was informed to the police. Therefore, it creates doubt and that is rightly appreciated by the Tribunal. Further submitted that there are no eye witnesses examined to prove the accident. Therefore, the accident itself is doubtful including involvement of the car.

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Further submitted that there is non-

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compliance of Section 39 of Cr.P.C., as there is no information to the police regarding the accident. Hence, on this ground also, the appeal is liable to be dismissed. Further submitted that as per the complaint averments, it is submitted that the petitioner took first aid treatment at Neha Prakash Hospital and then shifted to Columbia Asia Hospital,

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but there is no document to show that the claimant took treatment at Neha Prakash Hospital. Therefore, the factum of accident itself is disputed. The factum of accident and the injuries sustained by the claimant are suspected one and it is rightly appreciated by the Tribunal. Therefore, learned counsel for respondent No.1-Insurance Company submitted that the Tribunal has rightly answered issue No.1 as the accident has not occurred and in the said accident, the claimant has not suffered injuries. Therefore, the Tribunal has rightly dismissed the claim petition, which needs no interference. Therefore, prays to dismiss the appeal.

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The Tribunal has dismissed the claim

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petition. The Tribunal while answering issue No.1 had observed that the claimant has not examined any eye witnesses regarding occurrence of the accident. Therefore, disbelieved the evidence of P.W.1 regarding occurrence of the accident. Further the Tribunal had observed that there is delay of four days

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in lodging the complaint before the police. Therefore, it created doubt in its mind regarding occurrence of the accident and injuries sustained by the claimant. On this ground also the claim petition was dismissed by the Tribunal. Further the Tribunal had observed that the claimant had taken first aid treatment in Neha Prakash Hospital and then she was shifted to Columbia Asia Hospital and later on to Sagar Apollo Hospital. Therefore, what was the necessity for the claimant to admit to Columbia Asia Hospital and later on to Sagar Apollo Hospital, when she had taken first aid treatment in Neha Prakash Hospital. Therefore, on this ground also the Tribunal rejected the claim petition.

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8. Further the Tribunal observed that when

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the claimant had taken first aid treatment in Neha Prakash Hospital, then it was not necessary for the claimant to take treatment at Columbia Asia Hospital. Therefore, the Tribunal has got doubt itself and thus,

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dismissed the claim petition. Further the Tribunal found fault with the claimant that after taking treatment in Columbia Asia Hospital, then what was the necessity to admit to Sagar Apollo Hospital from Columbia Asia Hospital. Therefore, on these reasons, the Tribunal has dismissed the claim petition.

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In the present case, the appellant/claimant was 15 years old girl at the time of the accident. The facts are that the appellant being a cyclist was crossing double road near Sheshadripuram School east west wise, at that time, the driver of Maruthi Car drove the same in a rash and negligent manner and dashed against the appellant/claimant and she sustained injuries. It is pertinent to note that the appellant was minor aged about 15 years old at the time of the accident. Upon going through the reasons and observations made by the Tribunal, all are found to be on hypothetical basis and the reasons are found to be given on mere surmises and conjectures. The

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observations of the Tribunal is that the appellant had taken first aid treatment in Neha Prakash Hospital and then what was the necessity for once again taking first aid treatment at Columbia Asia Hospital is the observation made by the Tribunal, which is not correct. Perhaps, in Neha Prakash Hospital, the appellant might have not got sufficient treatment. Therefore, the appellant might have shifted to Columbia Asia Hospital. Just because the Columbia Asia Hospital is also well equipped hospital, it does not mean that there was no necessity to get treatment in further higher centre. Therefore, in this regard, the Tribunal found fault with admitting to Sagar Apollo Hospital. These observations made by the Tribunal are on hypothetical basis. If the hospital authorities have not sent the Medico Legal Case Register to the police or even the police after receipt of Medico Legal Case Register did not come to the hospital and have not taken the first information statement from the

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claimant, then that cannot be found fault with the appellant/claimant when there is negligence on the part of the hospital authorities or police. Therefore, under these circumstances, there may be delay of four days in lodging the complaint and there may be some genuine reasons.

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In the present case, the appellant was minor aged 15 years old and immediately, after the accident, she was shifted to Neha Prakash Hospital. Therefore, immediately after the accident, there was no chance of lodging the complaint before the police. In the accident cases, the paramount thing is, soon after the accident it is to get medical treatment rather than going and lodging the complaint before the police. In the present case, there is a delay of four days in lodging the complaint. The appellant/claimant cannot be found fault with saying that the claim petition is not genuine one. In this regard, I place reliance on the judgment of the Hon’ble Supreme

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Court in the case of Ravi Vs. Badrinarayan and Others reported in AIR 2011 SC 1226, wherein at

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paragraph Nos.20 and 21 it is observed as under:

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“ 20. It is well-settled that delay in lodging FIR cannot be a ground to doubt the claimant's case. Knowing the Indian conditions as they are, we cannot expect a common man to first rush to the Police Station immediately after an accident. Human nature and family responsibilities occupy the mind of kith and kin to such an extent that they give more importance to get the victim treated rather than to rush to the Police Station. Under such circumstances, they are not expected to act mechanically with promptitude in lodging the FIR with the Police. Delay in lodging the FIR thus, cannot be the ground to deny justice to the victim. In cases of delay, the courts are required to examine the evidence with a closer scrutiny and in doing so; the contents of the FIR should also be scrutinized more carefully. If court finds that there is no indication of fabrication or it has not been concocted or engineered to implicate innocent persons then, even if there is a delay in lodging the FIR, the claim case cannot be dismissed merely on that ground.

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21. The purpose of lodging the FIR in such type of cases is primarily to intimate the police to initiate investigation of criminal offences. Lodging of FIR certainly proves factum of accident so that the victim is able to lodge a case for compensation but delay in doing so cannot be the main ground for rejecting the claim petition. In other words, although lodging of FIR is vital in deciding

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motor accident claim cases, delay in lodging the same should not be treated as fatal for such proceedings, if claimant has been able to demonstrate satisfactory and cogent reasons for it. There could be variety of reasons in genuine cases for delayed lodgment of FIR. Unless kith and kin of the victim are able to regain a certain level of tranquility of mind and are composed to lodge it, even if, there is delay, the same deserves to be condoned. In such circumstances, the authenticity of the FIR assumes much more significance than delay in lodging thereof supported by cogent reasons.”

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Further, upon perusing the complaint given by P.W.1 the reasons for lodging the complaint is that

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she was taking treatment in the hospital. Therefore, she could not lodge the complaint and that was the genuine reason stated by P.W.1 mother of the appellant and it is found to be genuine and sufficient reason, but this is not rightly appreciated by the Tribunal. Therefore, the observation of the Tribunal is highly on technicality. Further the Tribunal has expected that if the accident has occurred that should have been happened in an exact manner. This observation of the Tribunal is not correct and no one

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can expect that the accident should happen in a particular manner only. Further the Tribunal has observed that the Motor Vehicle Inspector has examined the maruthi car and it got damage to its front left side and the head light got damaged, but the cycle has not got damage. On this ground also, the Tribunal has dismissed the claim petition, which is not correct. During the investigation by the police, the Motor Vehicle Inspector had inspected the car, which has got damage. There is prima facie evidence to show that the car is involved in the accident.

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Further the Tribunal has observed that eye witnesses are not examined. Just because, eye witnesses are not examined, that cannot be a ground to reject the claim petition. Soon after the accident, it is not possible for the injured person to know as to who are the persons witnessed the accident and it cannot be expected to make a thought as to who are the persons witnessed the accident. In case, the case

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is registered, it is highly improbable and impracticable observation made by the Tribunal as to who are the passerby who have witnessed the accident are scattered from the place and it is not possible for the claimant to see the persons who are the witnesses who have witnessed the accident. Further more, the police came to the spot after the accident. Therefore, it is not possible for the police to mention as to who are the eye witnesses. Therefore, on these circumstances, just because, eye witnesses are not examined that cannot be a ground to reject the claim petition. Therefore, after observing the evidence of P.W.1 and other materials, it is proved that the appellant had sustained injuries. Therefore, for the above stated reasons, the observations and reasons assigned by the Tribunal while dismissing the claim petition is highly on hypothetical basis and based on mere surmises and conjectures. Therefore, the

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judgment and award is liable to be set aside. Accordingly, it is set aside.

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Therefore, the findings given by the Tribunal on issue No.1 is not correct. Hence, issue No.1 framed by the Tribunal is considered once again by re-appreciating the evidence on record and it is proved that the appellant had sustained injuries on 29.12.2009 due to the rash and negligent driving of the car bearing Reg.No.KA-53-N-3664 by its driver and dashed against the appellant/claimant while crossing double road near Sheshadripuram School. Therefore, the findings on issue No.1 by the Tribunal is set aside and it is held that the appellant has proved the factum of accident as the car bearing Reg. No.KA-53-N-3664 involved in the accident as it dashed against the appellant/claimant and caused injuries. Accordingly, I answer issue No.1 in affirmative.

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The next question to be considered is whether the appellant is entitled for compensation. For this purpose, this Court is of the opinion to remand the case to the Tribunal for assessment of compensation as it involves appreciation of oral and documentary evidence. If the Tribunal finds it necessary to appreciate further oral and documentary evidence, then it is for the Tribunal to get further oral and documentary evidence. Therefore, for these reasons, the case is remanded to the Tribunal. Accordingly, the matter is remanded to the Tribunal. Hence, I proceed to pass the following

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ORDER

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Appeal is allowed .

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The judgment and award dated 31.01.2011 in MVC.No.1677/2010 passed by the Court of Small Causes & MACT, (ACMM-21), Bengaluru, is hereby set aside. The matter is remanded to the Tribunal for determining only compensation without going into the

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merits regarding the accident as the matter is of the year 2010.

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The parties are directed to appear before the Tribunal on 03.06.2022 without awaiting notice from the Tribunal.

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The registry is directed to transmit the TCR along with the copy of this order to the Tribunal forthwith.

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No order as to costs.

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Sd/JUDGE

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Sri Praneyata Sharma v. the Manager

Case brief

What is this about?

What did the court decide?

Sri Praneyata Sharma v. the Manager

Case brief

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