Allowed

Sri Mahanthesh v. Sri Venkatesha Kamalakar

Karnataka HC11 Jul 2023MFA/1621/2023

Case brief

AI extract

What is this about?

This court heard two miscellaneous first appeals filed under Section 173(1) of the MV Act challenging a motor vehicle accident award. The claimant appealed for enhanced compensation, while the insurer appealed to dismiss the claim. The court found the claimant failed to prove the accident was caused by the uninsured rider's negligence given medical records indicating a self-fall. The insurer's app

What did the court decide?

MFA No. 440/2023 (Insurer) allowed; MFA No. 1621/2023 (Claimant) dismissed; Impugned award in MVC No. 373/2020 set aside; Amount refunded to Insurer.

Sri Mahanthesh Vs Sri Venkatesha Kamalakar — Insurance | Karnataka HC (2023)

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NC: 2023:KHC:23988-DB MFA No. 1621/2023 C/W MFA No. 440/ 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11^TH DAY OF JULY, 2023 PRESENT

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THE HON'BLE MRS. JUSTICE K.S.MUDAGAL

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AND

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THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR

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MISCELLANEOUS FIRST APPEAL NO. 1621/2023 (MV-I)

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C/W

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MISCELLANEOUS FIRST APPEAL NO. 440/2023 (MV-I)

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IN M.F.A. NO.1621/2023

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BETWEEN:

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SRI MAHANTHESH S/O VENKATESHAPPA, AGED ABOUT 24 YEARS, AGRICULTURIST, R/O AT HIRIYUR VILLAGE, ANDANUR POST, HOLALKERE TALUK-577526.

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Digitally signed by K S RENUKAMBA Location: High Court of Karnataka

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PETITIONER IS SUFFERING FROM DIFFUSE AXONAL INJURY AND VOCAL PROBLEM-REP. BY HIS NEXT FRIEND-MOTHER RATHNAMMA W/O VENKATESHAPPA, AGED ABOUT 46 YEARS, HOUSE WIFE, R/O HIRIYUR VILLAGE, ANDANUR POST, HOLALKERE TALUK-577 526, CHITRADURGA DIST. …APPELLANT

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(BY SRI. HARISH N.R., ADVOCATE)

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AND:

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SRI VENKATESHA KAMALAKAR S/O SEENAPPA YADEHALLY, AGED ABOUT 42 YEARS, R/O DODDA SIGE VILLAGE, BHADRAVATHI TALUK-577 301,

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NC: 2023:KHC:23988-DB MFA No. 1621/2023 C/W MFA No. 440/ 2023

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SHIMOGA DISTRICT, OWNER OF THE VEHCLE BEARING REG NO.KA-14/ET-2661.

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THE DIVISIONAL MANAGER, THE LIBERTY GENERAL INSURANCE CO. LTD, NO.21/15, "THE LAND MARK", 4^TH FLOOR, NEAR TRINITY METRO,

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M G ROAD, BENGALURU-560 001. …RESPONDENTS

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(BY SRI. RAVI S. SAMPRATHI, ADVOCATE FOR R2; R1 SERVED)

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THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 06.09.2022 PASSED IN MVC NO. 373/2020 ON THE FILE OF THE SENIOR CIVIL JUDGE AND J.M.F.C., HOLALKERE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN M.F.A. NO.440/2023

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BETWEEN:

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THE DIVISIONAL MANAGER, M/S LIBERTY GENERAL INSURANCE CO. LTD., NO.21/15 "THE LANDMARK" 4^TH FLOOR, NEAR TRINITY METRO, M G ROAD, BENGALURU -560 001. …APPELLANT

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(BY SRI. RAVI S. SAMPRATHI, ADVOCATE)

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AND:

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SRI MAHANTHESH S/O VENKATESHAPPA, AGED ABOUT 25 YEARS, R/O HIRIYUR VILLAGE, ANDANUR POST, HOLALKERE TALUK,

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RESPONDENT NO. 1 IS SUFFERING FROM DIFFUSE AXONAL INJURY AND VOCAL PROBLEM REP. BY HIS NEXT FRIEND MOTHER

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SMT. RATHNAMMA

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W/O VENKATESHAPPA, AGED ABOUT 47 YEARS, HOUSE WIFE, R/O HIRIYUR VILLAGE, ANDANUR POST, HOLALKERE TALUK.

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SRI VENKATESH KAMALAKAR S/O SEENAPPA YADEHALLY, AGED ABOUT 43 YEARS, R/O DODDA SIGE VILLAGE, BHADRAVATHI TALUK, SHIMOGA DISTRICT …RESPONDENTS

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(BY SRI. HARISH N.R., ADVOCATE FOR R1; R2 SERVED)

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THIS MFA FILED U/S.173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DT.06.09.2022 PASSED IN MVC NO.373/2020 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., HOLALKERE, AWARDING COMPENSATION OF RS.27,08,000/- WITH INTEREST AT 6 PERCENT P.A. FROM THE DATE OF PETITION TILL REALIZATION.

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THESE APPEALS COMING ON FOR FINAL HEARING THIS DAY, K.S.MUDAGAL J,. DELIVERED THE FOLLOWING:

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JUDGMENT

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Challenging the award in MVC No. 373/2020 passed by

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the Senior Civil Judge and JMFC., Holalkere, the claimant has preferred MFA No.1621/2023 and the Insurer has preferred MFA No.440/2023.

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2. The appellant in MFA No.1621/23 was the claimant. Respondents in the said case were respondent Nos.1 and 2 before the Tribunal. For the purpose of convenience, the parties will be referred to henceforth according to their ranks before the Tribunal.

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3. On 23.11.2019, the claimant was admitted in S.S. Institute of Medical Sciences and Research Centre, Davanagere, with certain injuries namely, Diffuse head injury with diffuse axonal with blunt trauma chest with lung contusion and hemothorax . The same is evidenced from Ex.P.16 the admission record of S.S. Institute of Medical Sciences and Research Centre, Davanagere, regarding the injury suffered by the claimant on 23.11.2019.

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4. On 28.11.2019 Kubendrappa, the uncle of the claimant filed complaint as per Ex.P.2 in Chikkajajur Police Station of Holalkere Taluk, Chitradurga District. He alleged that on the illfated day, the claimant was travelling on the motorcycle bearing registration No. KA-14/ET-2661 with one Lohith S/o Rajappa. It was further alleged that Lohith was carelessly riding the motorcycle in high speed and to avoid she-buffalo coming

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on the road, he applied sudden brake, the claimant fell down and suffered grievous injuries. Based on the said complaint, Chikkajajur Police registered FIR as per Ex.P.1 against the said Lohith. After six months of the complaint on 02.06.2020 the police filed charge sheet as per Ex.P.7 against the said Lohith for the offences punishable under Sections 279 and 338 of IPC.

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5. The claimant filed MVC No.373/2020 before the Senior Civil Judge & JMFC., Holalkere, alleging that the accident occurred due to the actionable negligence on the part of the rider of motor cycle bearing registration No.KA-14/ET-2661. Consequently, the claimant has suffered grievous injuries and total permanent physical disability. It was contended that the claimant has suffered total permanent physical disability, therefore, his mother filed the petition as the next friend of the claimant. The claimant contended that, due to the accident, he has suffered permanent physical disability, loss of future earnings, etc., therefore respondents are liable to pay him Rs. 50,00,000/- (Rupees Fifty lakhs only) as compensation. Respondent Nos.1 & 2 are owner and insurer of Bike No.KA14/ET-2661.

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6. Respondent Nos.1 and 2 filed their counter to the claim petition denying the occurrence of the accident as alleged by the claimant. They denied the injuries suffered by the claimant, permanent physical disability, his age, occupation, income and their liability to pay the compensation.

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7. Before the Tribunal, to substantiate his claim, the claimant got examined his mother as P.W.1 and the Doctor, who treated him in Shivamogga as PW 2 and got marked Exs. P1 to P18. Respondent No.1 did not adduce any evidence. On behalf of respondent No.2, it’s Panel Investigator, was examined as R.W.1 and Exs.R1 to R3 were marked.

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8. The Tribunal on hearing the parties by the impugned award, relying on the police records, held that the occurrence of the accident due to actionable negligence of Lohith in riding bike No.KA-14/ET-2661 was proved. The Tribunal relying on the evidence of PW2 held that the claimant has suffered 70% permanent physical disability, assessed his income notionally at Rs.14,000/-. Considering his age as 22 years applied '18' multiplier and awarded compensation of Rs.21,16,800/- under the head of loss of future earnings.

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9. The Tribunal awarded Compensation of Rs.27,07,970/-

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in all, with interest thereon at 6% p.a. on different heads as

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per the table below:

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Sl. No.	Heads	Amount
1	For Pain and suffering	Rs. 1,00,000/-
2	Medical expenses	Rs. 3,60,170/-
3	Attendant charges	Rs. 9,000/-
4	Conveyance charges	Rs. 20,000/-
5	Food, diet and nourishment charges	Rs. 10,000/-
6	Loss of income during laid up period	Rs. 42,000/-
7	Loss of future earning capacity on account of permanent physical disability	Rs.21,16,800/-
8	Loss of amenities and enjoyment of life	Rs. 50,000/-
	TOTAL	Rs.27,07,970/-

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Submissions of Sri Ravi S.Samprathi, learned Counsel for the Insurer-R2:

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10. The claimant's own document Ex.P2 the complaint, discloses that there was delay of five days in filing the complaint after the accident. The claimant suffered the injuries by self fall while driving the motorcycle. The claimant in collusion with the owner of the vehicle, police and other authorities managed to get the charge sheet filed after six months. Claimant's own documents Ex.P.8 Discharge Summary, Ex.P.10-attested copy of MLC Extract and Ex.P16 -

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Case sheet and other documents issued by S.S. Institute of Medical Science and Research Centre Hospital, Davanagere, show that the claimant suffered injuries while riding the motorcycle by self fall. In addition to that, Exs.R1 to R3, the documents produced by respondent No.2 prove that the insured vehicle is falsely implicated in the case after deliberations. The compensation computed by the Tribunal is inflated one. The claim petition shall be dismissed.

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Submissions of Sri Harish N.R., learned counsel for the claimant:

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11. Regarding the incident, the claimant's uncle filed a complaint against Lohith. In the complaint, he has explained the delay. Since the claimant had suffered grievous injuries and required immediate medical attendance, such delay occurs. On investigation, the police filed the charge sheet against the rider of the motorcycle Lohith. Neither respondent No.1 nor respondent No. 2 in their pleadings dispute that the injuries were accidental injuries. Respondent No.1 did not even dispute the involvement of the vehicle. Since the proceedings were summary proceedings, the Tribunal was justified in relying on Exs.P1 to P7. RW.1 was not an eye witness. Therefore,

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respondent No.2 failed to rebut the evidence of claimant regarding the involvement of the insured motorcycle. The evidence regarding the permanent disability suffered by the claimant at 100% was also not rebutted. The Tribunal was not justified in reducing the same to 70%. Having regard to the nature of the injuries suffered by the claimant, the compensation awarded on all the heads is on the lower side. The compensation payable to the claimant shall be enhanced and the insurer's appeal shall be dismissed.

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12. Considering the submissions on both side and on examination of the records, the points that arise for consideration of this Court are:

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1. Whether the finding of the Tribunal that the claimant suffered injuries due to rash and negligent driving of Motorcycle No. KA-14 ET2661 by the rider of the said vehicle while he was travelling on the said vehicle as pillion rider, he suffered disability, is just and proper?

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2. Whether the compensation awarded is just and proper?

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ANALYSIS

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13. According to the claimant, on 23.11.2019 at 3:00 p.m. when he was travelling as pillion rider on motorcycle bearing No.KA-14/ET-2661 which was ridden by one Lohith,

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he rode the motor cycle rashly and negligently so as to endanger human life & caused the accident. When the claimant came before the Tribunal with such allegation, the burden was on him to prove the same. The pleadings of respondent Nos.1 and 2 show that they had disputed involvement of the vehicle in the accident. To prove involvement of the vehicle No.KA14/ET-2661 and one Mr. Lohith being rider and claimant being the pillion rider of the same at the relevant time, the mother of claimant is examined as PW.1. But she is not the eye witness to the incident.

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14. There was delay of five days in filing Ex.P.2 the complaint. It was contended that the complainant who was the uncle of the claimant was busy in attending the medical needs of the claimant, therefore, there was delay. Such explanation ought to have been proved by the claimant by examining the complainant. Kubendrappa the complainant was not the eye witness of the accident, as per the averment made in the complaint itself. According to him, one Manjunath, son of Venkatappa, informed him about the accident. Said Manjunatha was also not examined.

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15. In Ex.P.2 initially, it is mentioned that when the rider of the motorcycle along with the claimant was proceeding, all of a sudden a she-buffalo came across the road. Therefore, the rider applied the brake which led to the accident. Later, the words, ' high speed ' were inserted in the complaint. Ex.P.16 is the case sheet issued by S.S. Institute of Medical Science and Research Centre, regarding the admission of the claimant and treatment given to him in the said hospital. The said documents show that he was in-patient in hospital from 23.11.2019 to 25.11.2019. Thereafter, he was shifted to Justice K.S.Hegde Charitable Trust Hospital, NITTE, Mangaluru.

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16. Ex.P.8/Discharge Summary produced by the claimant shows that claimant was treated for 62 days in K.S Hegde Hospital between 26.11.2019 to 28.01.2020 as in-patient. No doubt, Ex.P.16 shows that complainant Kubendrappa himself admitted the claimant into hospital at Davanagere. The said documents bear the signature of said Kubendrappa, as the person who admitted the claimant to the hospital. In the first sheet, it is stated that, " Patient attenders give alleged history of RTA on 23.11.2019 at 3.00 p.m. near Kalaghatta, fall from two wheeler ". In the investigation column, the history is

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mentioned as: "self fall from bike with traumatic brain injury". It was contended that in casualty medical records Ex.P.16 though there is one field designated as "self fall" that was not for RTA. Therefore, it cannot be said that the case was not a Road Traffic Accident. It is not even case of the respondent that it is not a RTA. But according to them vehicle which is in dispute is KA-14/ET-2661.

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17. Admittedly, the accident took place at Kalaghatta within the limits of Holalkere, Chitradurga District. As per the address furnished by the claimant himself in the claim petition, respondent No.1 the registered owner of the said vehicle is the resident of Dodda Sige Village Bhadravathi Taluk, Shivamogga District. Therefore, it was for the claimant to explain how the said vehicle came to the scene of accident and how rider Lohit was concerned to the vehicle or it’s owner. Respondent No.2 contended that the claimant himself was the rider of the motorcycle and the accident occurred due to his own negligence when he was riding the motorcycle. Ex.P.10 is the MLC Register extract of S. S. Institute of Medical Sciences and Research Centre which is produced by the claimant himself. Exs.P.10 & 16 are the documents which came into existence

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soon after the accident. Therefore, the entries in those documents carry credibility. Even in Ex.P.10 history is mentioned as " alleged history of RTA fall from the bike at Kalaghatta, Holalkere, Chitraduga District ".

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18. The charge sheet may be prima facie evidence regarding the incident. But that is not conclusive proof barring the Court from considering other evidence on record. In this regard, the co-ordinate benches of this Court in the case of Veerappa & Another v/s Siddappa & Another¹ , Narendra.S.Chavan and others v/s Vaishali V.Bhadekar² and Mahadevi v/s. Shivaputra & anr.³ , have held that there is rampant malpractices in the field of motor accidents. It was further held that, instances of filing false claim petitions implicating the insured vehicles, in collusion with the owners of the vehicle, lawyers, medical practitioners, police and others is on rise. It was held that charge sheet is not the conclusive proof of negligence, involvement of the vehicle and Court has to examine/assess/evaluate all the evidence on the record in the integrated manner.

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1 ILR 2009 KAR 3562

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2 (2009) 15 Supreme Court Cases 166

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3 MFA No.201689/2016,

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19. As already pointed out, the claimant's own documents Exs.P.8,10 & 16 show that the claimant was admitted in the said hospitals with a history of fall from the bike i.e., 'Self fall'. Ex.P.8 shows that the history was given by the patient's attender himself. As already noticed, Ex.P.16 bears the signature of the complainant himself. Since those documents were the claimant's own documents they bind him. In this regard, the Hon'ble Supreme Court in Oriental Insurance Company v/s Premlata Shukla and others⁴ has held that the parties on producing documents and relying on the same later cannot resile from such documents. To allow them to do so would indeed be permitting them both to approbate and reprobate. It was further held that they cannot ask the Court to rely only on one portion of the document which is favourable to them and discard the rest of the portion which is unfavourable to them. Accordingly, in this case also, claimants cannot approbate, reprobate together. An attempt was made to state that the entries are made by the Doctor and complainant has only put his signature on the same, therefore, the knowledge of those entries cannot be imputed to him. However, if that is the

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4 (2007) 13 SCC 476

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case, the claimant should have examined the author of the document to explain such entries as well as delay in filing the complaint.

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20. In the above facts and circumstances, relying on the judgment in the case of Parmeshwari V/s Amir Chand and Others⁵ the claimant’s counsel submits that the proceedings in MACT are summary in nature and the principle of strict proof as required in criminal case are not attracted. Absolutely, there is no dispute with the said proposition. However, the claimant has to discharge his initial burden of proving that on that day he was travelling on the insured vehicle and one Lohith was the rider and he caused the accident by rash and negligent driving of the said vehicle. As already noticed the claimant's own documents were in variance with charge sheet contents regarding the actionable negligence on the part of the alleged Lohith or involvement of the insured vehicle in the accident. To explain that he did not examine the claimant or any of the eye witnesses, therefore, the said judgment cannot be justifiably applied to the facts of the present case.

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5 (2011) 11 SCC 635

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21. Relying on the judgement of Hon'ble Supreme Court in Bimla Devi and Others V/S Himachal Road Transport Corporation and Others⁶ , it was contended that it was for the respondent Nos.1 and 2 to show why insured vehicle was involved in the criminal case. Reading of the said judgment shows that in that case the driver of the bus was negligent and the dead body of the victim wrapped in blanket, was found lying at the back of the bus. For the purpose of determining such issue the Court was required to apply the principle underlying the burden of proof in terms of the provision of Section 106 of the Indian Evidence Act, 1872. Therefore, the said judgment is not applicable to the facts of the present case.

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22. In Parameshwari 's case referred to supra the Hon'ble Supreme Court has held that doctors have no reason to make false entries in the medical records. Similarly, in this case also, nothing is attributed to the Doctors who made entries in Ex.P.8,10 and 16 regarding history of the injuries by the attendees of the deceased. The finding of the Tribunal regarding the claimant travelling as pillion rider on Motorcycle

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6 (2009) 13 SCC 530

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bearing No. KA-14/ET-2661, one Mr. Lohith, being the rider of the said vehicle and that accident occurred due to Lohith's actionable negligence is contrary to the evidence on record and the judgments of this Court and the Hon’ble Supreme Court discussed above. Therefore, the same is not sustainable. In the above facts and circumstances, the claimant ought to have examined the Doctors who treated him in S.S. Institute of Medical Sciences and Research Centre, Davanagere and Justice K.S.Hegde Charitable Trust Hospital, NITTE, Mangaluru. But instead of them he examined PW2, who is the Doctor at Shivamogga. PW.2 is said to have a clinic at Shivamogga. Though he claimed that the claimant after his discharge from the aforesaid hospitals, visited his clinic for the follow up treatment from 30.12.2021, he did not produce any follow up sheets. That also goes to show that the claimant selectively examined PW.2, who did not conduct surgery on him and treat him.

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23. Though the medical records show the claimant is aged 22 years, suffered grievous injuries and the Court has all sympathies for him, as he failed to establish that he suffered such injuries while he was travelling as a pillion rider on KA-

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14/ET-2661 or due to the actionable negligence of rider of that vehicle Mr. Lohith, he is not entitled to any compensation from respondent nos. 1 and 2.

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24. Therefore, the claim petition is liable to be dismissed.

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The appeal of the insurer succeeds and the appeal of the

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claimant is liable to be dismissed. Hence, the following:

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ORDER

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i) MFA No. 1621/2023 is hereby dismissed.

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ii) MFA No. 440/2023 is hereby allowed.