Dismissed

M/S Icici Lombard General Insurance Company Ltd, v. Kiran @ Kirankumar

Karnataka HC14 Oct 2022MFA/2459/2017

Case brief

AI extract

What is this about?

The Court dismissed the appeal filed by an Insurance Company against a Motor Vehicles Tribunal award. The Court held that hospital records established the claimant's history of injury from a bus collision, rejecting the insurer's doubt about the accident's authenticity.

What did the court decide?

The appeal is dismissed and the amount, if deposited, is to be transmitted to the Tribunal.

M/S Icici Lombard General Insurance Company Ltd, Vs Kiran @… — Insurance | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14^TH DAY OF OCTOBER, 2022

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BEFORE

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THE HON'BLE MR. JUSTICE H.P. SANDESH

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M.F.A.NO.2459/2017 (MV-I)

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BETWEEN:

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M/S. ICICI LOMBARD GENERAL INSURANCE COMPANY LTD., REGIONAL OFFICE, NO.86, 2^ND FLOOR S.V.R. COMPLEX, HOSUR MAIN ROAD, MADIVALA, BENGALURU. NOW REP. BY ITS MANAGER LEGAL M/S. ICICI LOMBARD GIC LTD., REGIONAL OFFICE THE ESTATE, 9^TH FLOOR DICKENSON ROAD, M.G.ROAD BENGALURU-560 042. … APPELLANT

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(BY SRI B.C.SHIVANNE GOWDA, ADVOCATE)

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AND:

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1 . KIRAN @ KIRANKUMAR S/O LATE NAGARAJU AGED ABOUT 22 YEARS R/O MUDDINAPALYA MAGADI MAIN ROAD BENGALURU-560 091

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2 . NARASE GOWDA S/O NARASAIAH MAJOR, R/O CHOLANAYAKANAHALLI MAGADI TALUK RAMANAGARA DISTRICT. ... RESPONDENTS

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(BY SRI R. SHASHIDHAR, ADVOCATE FOR R1; R2 IS SERVED)

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THIS M.F.A., IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 11.11.2016 PASSED IN MVC NO.498/2013 ON THE FILE OF THE VII ADDITIONAL JUDGE AND XXXII ACMM, COURT OF SMALL CAUSES, BENGALURU, AWARDING COMPENSATION OF RS.3,50,200/- WITH INTEREST AT 8% P.A., FROM THE DATE OF PETITION TILL ITS REALISATION.

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THIS M.F.A., COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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Heard the learned counsel appearing for the appellantInsurance Company and the learned counsel appearing for respondent No.1-claimant.

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This appeal is filed challenging the judgment and award dated 11.11.2016 passed in M.V.C.No.498/2013 on the file of VII Additional Judge & XXXII ACMM and Court of Small Causes, Bengaluru (SCCH-3) [‘the Tribunal’ for short].

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The parties are referred to as per their original rankings before the Tribunal to avoid confusion and for the convenience of the Court.

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The factual matrix of the case of the claimant before the Tribunal is that on 17.11.2012 at about 3:45 p.m, the injured was traveling as a passenger in Bhavani Bus bearing

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registration No.KA-42-2706, from Bengaluru to Magadi on Magadi Bengaluru main road near Thagachaguppe, at that time, the driver of the said bus drove the same in a high speed, rash and negligent manner and dashed against the Bus bearing registration No.KA-57-F-250. Due to the impact, he has sustained severe injuries. Immediately, he was shifted to Victoria Hospital and thereafter he was referred to the Lakshmi Hospital, Sunkadakatte, Bengaluru. He underwent wound debridgement as well as skin grafting. Due to the accidental injuries, he has suffered permanent disability and working as a data entry operator and earning Rs.10,000/- per month.

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In pursuance of the claim petition, notice was issued to respondent No.1, he failed to appear before the Court and placed ex-parte and respondent No.2 is the Insurance Company resisted the claim petition.

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The claimant in order to substantiate his case, he examined himself as P.W.1 and examined the Doctor as P.W.2 and also examined the another witness as P.W.3 and got marked the documents as Exs.P1 to P17. On the other hand, the respondent - Insurance Company has examined two witnesses

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viz., R.W.1-officer of the Insurance Company and R.W.2, who is an Investigating Officer and got marked the documents as Ex.R1 and Ex.R2.

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The Tribunal after considering both oral and documentary evidence placed on record, allowed the claim petition granting compensation of Rs.3,50,200/- with interest at 8% p.a. from the date of petition till its realization. Hence, the present appeal is filed by the Insurance Company.

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The main contention of the learned counsel appearing for the appellant - Insurance Company is that the injured immediately after the accident was taken to the Government Hospital at Magadi but no document has been placed before the Court. Later he was admitted to the Victoria Hospital at 3:40 p.m, on 17.11.2012. Though it is mentioned as RTA, he claims that he was a passenger in Bhavani Bus, no document has been placed before the Court that he was traveling in the Bus. The Investigating Officer admits that five persons were sustained simple injuries. But on the other hand as per the Wound Certificate that the petitioner does indicate that he was sustained deep laceration over the right shoulder on

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lateral aspect, measuring 3 x 2 cms. X-ray of right shoulder shows fracture of head of humerous. When two buses were colluded with each other, all of a sudden in Lakshmi Hospital, the bus number was mentioned. In the Victoria hospital, the bus number was not mentioned.

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The learned counsel appearing for the appellant – Insurance Company would vehemently contend that the medical history was furnished by the petitioner ought to have been considered by the Tribunal and the same has not been considered. The very sustaining of the injury in the said accident is doubtful and the same has not been considered by the Tribunal. The learned counsel also would submit that the accident was occurred at 3:35 p.m, and the injured was admitted in the Victoria Hospital at 4:30 p.m. Hence, it is very clear that it is a case of concoction.

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Per contra, the learned counsel appearing for the respondent – claimant would submit that immediately after the accident the injured was taken to the Victoria Hospital, wherein, he has given the history. In the history, it is mentioned as RTA and involvement of two buses. Thereafter, he was admitted in

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Lakshmi Hospital, wherein also the history was given. The documents, which have been placed before the Court clearly disclose that the involvement of two buses in the accident and the injuries sustained by the claimant. The Tribunal considered the material on record and came to the right conclusion that the claimant sustained the injuries in the accident.

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Having heard the arguments of the respective

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counsel and on perusal of the grounds urged in the appeal and the materials available on record, the points that would arise for consideration of this Court are:

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(i) Whether the Tribunal has committed an error in entertaining the claim petition by disbelieving the contention of the Insurance Company and whether it requires an interference of this Court?

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(ii) What order?

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Point No.(i):

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Having heard the respective counsel and on perusal

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of the material available on record, the injured, who has been examined as P.W.1. He reiterates that he was traveling from Bengaluru to Magadi. When the bus reached near

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Thagachaguppe, an accident was occurred and he rushed to the Government Hospital, Magadi for the first aid and he was referred to Victoria Hospital and Panacea Hospital. Thereafter he was shifted to Sri Lakshmi Hospital, Sunkadakatte, Bengaluru. This petitioner was cross-examined. In the cross-examination, it is elicited that in order to show that he was traveled in the bus on 17.11.2012, he has not produced any document. It is suggested that he was not travelled in the said bus and the same was denied. However, he says that the width of the road is 40 feet and there was no any road median. He was sitting behind the driver of the bus, in order to show that he has been called as Kiran @ Kiran Kumar, no document has been produced. It is suggested that his name has not been shown in the chargesheet that he was injured. Hence, he has not traveled in the bus and the said suggestion was denied and he is not having any difficulty to produce the charge-sheet and also he admits that in any of the documents which he has produced before the Court does not disclose his name. The claimant also examined the Doctor as P.W.2. P.W.2 says that the injured admitted to the hospital on 18.11.2012 and seen by his team and found the injuries and conducted the surgery. He assessed the disability.

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He was subjected to cross-examination. In the cross-

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examination, he says that in Ex.P11, his name found. The document-MLC extract and attested copy of intimation to the Police got marked as Exs.P16 and P17. In the crossexamination, he admits that he is not aware as to who has written the contents in the case sheet – Ex.P15 and also he does not know the contents of Ex.P16 – MLC extract.

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On the other hand, the respondents have examined one witness as R.W.1, who is a legal retainer. He was subjected to cross-examination. In the cross-examination, he admits that they used to appoint their private investigator to investigate the case and they are not produced any investigation report. He admits that in the discharge summary issued by Lakshmi Hospital, Bengaluru, at Ex.P5, it is stated that the alleged history of RTA, bus No.KA-47-2706 hit by another bus No.KA-57-F-250 and also admits that in MLC register, the said aspect is mentioned as the history of injury and not filed the complaint challenging the police records. He admits that five persons were injured in the said accident and also admits that the bus driver who gave the complaint is Kiran Kumar and the petitioner name

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is also Kiran Kumar. Further, he admits the records produced by the petitioner, wherein, it is stated that he sustained injuries in the accident on the date of the accident when he was traveling in Bhavani Bus.

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The other witness is an Investigating Officer. In his evidence, he says that he was working as PSI., he investigated the matter and filed the charge-sheet. One Kiran Kumar K.N. s/o Narasimhaiah has lodged a complaint. The BMTC., bus driver has lodged a complaint in the case. Two buses are involved in the accident. Persons, who sustained injuries in the accident are made as witnesses in the crime case and also admits that the petitioner was not made as witness in the charge-sheet. He also admits that the petitioner in this case i.e., Kiran @ Kiran Kumar s/o. Late Nagaraju, aged about 18 years has not sustained any injuries. There were five persons sustained simple injuries, among whom one Wound Certificate he has received by Magadi Hospital, but Police have not collected the injury certificate of others.

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In the further cross-examination, he admits that when two vehicles are involved in the accident, the inspector will

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inspect both the vehicles during IMV inspection and also admits that it is their duty to collect the IMV report and he has collected the IMV report. He admits that only one intimation regarding the injured Munna is received, but in the complaint, there is no mention of said Munna who sustained the injuries. He admits though he has stated that five persons have sustained injuries, he has not enquired five persons and blindly he has filed the charge-sheet and the said suggestion was denied. The witness volunteers that other four persons have taken first aid in Magadi Government Hospital, he has not enquired as to whether the said four persons have taken treatment in Magadi Hospital.

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Having considered both oral and documentary

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evidence placed on record, it is clear that the accident was occurred on 17.11.2012 at 15:45 hours. The FIR was received on 17.11.2012. In the FIR, involvement of two vehicles in the accident is mentioned by mentioning both the vehicle numbers. Hence, it is clear that the accident was occurred between two vehicles and the same is not in dispute.

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The very contention of the Insurance Company is that this petitioner was not traveled in the said Bhavani Bus and

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the immediate records of Magadi Hospital, wherein, he took first aid, is not placed before the Court and the injured was shifted to the Victoria Hospital, wherein, it is mentioned the history as RTA and on the same day, he was shifted to Victoria Hospital and on the next day, he was shifted to Lakshmi MultiSpeciality Hospital and Medico Legal Register is marked as Ex.P4, wherein, the vehicle number given on the next day itself. He was an inpatient for a period of three days at Lakshmi Hospital, in terms of Ex.P5. Having taken note of admission of P.W.1 that he has not produced any document to show that he was traveled in the said Bus but the fact that immediately he was taken to the Victoria Hospital, wherein, the history is mentioned as RTA and on the very next day in the Lakshmi Hospital, history is also given with regard to the involvement of the vehicle.

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The learned counsel appearing for the respondentclaimant brought to the notice of this Court that the document Ex.P15–case sheet of Victoria Hospital, wherein, it is categorically mentioned that the accident was occurred and the history was given as RTA on 17.11.2012, wherein, the timings is

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mentioned as 4:00 p.m. The Victoria Hospital intimation was given and the Assistant Sub Inspector of Police, Victoria Hospital Police Station received the said intimation on 17.11.2012 itself. Merely because the Investigating Officer has not recorded the statement of witness, the same cannot be a ground that he has not sustained the injuries. In the immediate records of the Victoria Hospital, it is specifically mentioned that the history as RTA, where two bus colluded each other on 17.11.2012 at 3:30 p.m., near Magadi. When the injured was taken to the hospital, he has given the history that he has sustained the injury in the road traffic accident where two buses colluded with each other. The very contention of the Insurance Company cannot be accepted and the same is found in Ex.P15.

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The very contention that only in the Lakshmi Hospital records for the first time vehicle number was mentioned, the same cannot be a ground to interfere with. When he admitted to the Victoria Hospital, he has given the history that the involvement of vehicles and particularly vehicle numbers are also given. When such being the case, the Court also cannot expect the document with regard to when he was traveled in a

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private bus i.e., bus ticket. Hence, the very contention of the Insurance Company cannot be accepted and I do not find any force in the contention of the Insurance Company and the details of history was given on the date of accident itself at Victoria Hospital in terms of Ex.P15. Hence, the counsel submission is not accepted and I do not find any merit in the appeal filed by the Insurance Company.

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Point No.(ii):

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In view of the discussions made above, I pass the

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following:

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ORDER

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(i) The appeal is dismissed.

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(ii) The amount in deposit, if any, be transmitted to the concerned Tribunal forthwith.

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(iii) The Registry is directed to transmit the records to the concerned Tribunal, forthwith.

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Sd/JUDGE

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cp*

M/S Icici Lombard General Insurance Company Ltd, v. Kiran @ Kirankumar

Case brief

What is this about?

What did the court decide?

M/S Icici Lombard General Insurance Company Ltd, v. Kiran @ Kirankumar

Case brief

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