Allowed

Sri H M Karun v. M/S SBI General Insurance

Karnataka HC19 Jun 2023MFA/5475/2015

Case brief

AI extract

What is this about?

The High Court allowed the first appeal against the Motor Accident Claims Tribunal order dismissing the claim petition. The Court found the Tribunal erred in rejecting the claim due to FIR delay and lack of MLC, relying on Supreme Court precedent. The Court awarded compensation of Rs. 1,75,000/- with interest.

What did the court decide?

Compensation of Rs. 1,75,000/- awarded with interest at 6% per annum; impugned judgment set aside.

Sri H M Karun Vs M/S SBI General Insurance — Medical Negligence | Karnataka HC (2023)

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NC: 2023:KHC:21145 MFA No. 5475 of 2015

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 19^TH DAY OF JUNE, 2023

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BEFORE

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THE HON'BLE MR JUSTICE G BASAVARAJA

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MISCELLANEOUS FIRST APPEAL NO. 5475 OF 2015 (MV-I)

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BETWEEN:

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SRI H M KARUN S/O H P MANOHAR AGED ABOUT 25 YEARS R/O NO. 306, 4TH CROSS 4TH MAIN, D GROUP LAYOUT SRIGANDHADAKAVALU BENGALURU-560091

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…APPELLANT

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(BY SRI.H. S. SUHAS, ADVOCATE)

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AND:

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Digitally signed by HARSHITHA B Location: High Court of Karnataka

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M/S SBI GENERAL INSURANCE CO LTD., REGISTERED OFFICE AT "NATARAJ" NO.101, 201 AND 301, JUNCTION OF WESTERN EXPRESS HIGHWAY, AND ANDHERI KURLA ROAD, ANDHERI EAST MUMBAI-400069.

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SRI RAVI POOJARI MAJOR S/O SRI NAKARA POOJARI R/O SHIVAPURA MALLEBETTU,

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NC: 2023:KHC:21145 MFA No. 5475 of 2015

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KARKALA TALUK UDUPI DISTRICT-581163.

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…RESPONDENTS

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(BY SRI. B. PRADEEP, ADVOCATE FOR R1; R2 SERVED)

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THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:10.06.2015 PASSED IN MVC NO.1551/2014 ON THE FILE OF THE JUDGE, COURT OF SMALL CAUSES & XXVI ACMM, (SCHH-09), MACT, BANGALORE, DISMISSING THE CLAIM PETITION FOR COMPENSATION.

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

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JUDGMENT

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Appellant/claimant has preferred this appeal against the judgment and award dated 10.06.2015 passed by the Small Causes and Motor Accident Claims Tribunal, Bengaluru, in MVC No.1551/2014.

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The parties are referred to as per their ranks before the tribunal.

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The brief facts of the case are that on 27.06.2013 at

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about 7.00 p.m. when the petitioner was proceeding in two wheeler bearing registration No.KA-02-ET-9838, near

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Punith Forum, on Bengaluru-Mysore Road, Bidadi, a canter bearing registration No.Ka-20-C-4166 came in a rash and negligent manner and dashed to the motor bike, in which the petitioner was proceeding, due to which the petitioner fell down and sustained injuries. The petitioner was hospitalized and taken treatment as an inpatient in the hospital and incurred huge medical expenses. The petitioner was working as an accountant in Professional Telecom and earning Rs.12,000/- per month. Due to the accidental injuries, petitioner is permanently disabled, lost his earning capacity and put to irreparable loss and hardship. The accident was due to the rash and negligent driving of the offending canter by its driver. The respondents, being the owner and insurer of offending canter, are liable and responsible to pay compensation to the petitioner. On all these grounds, sought for allowing this appeal.

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To substantiate the claim of the petitioner, 3 witnesses were examined as PW1 to PW3. 20 documents

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were marked as Exs.P-1 to P-20. On closure of petitioner's side evident, one Sadananda is examined as RW1. On hearing the arguments on both sides, the Tribunal has dismissed the claim petition. Being aggrieved by this judgment and award passed by the Tribunal, the appellant/claimant has preferred this appeal.

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Learned counsel appearing on behalf of appellant has submitted his arguments that Tribunal has not properly appreciated the evidence on record in a proper and perspective manner. After thorough investigation the IO has submitted the charge sheet against the driver of the offending vehicle for the commission of offences punishable under Section 279, 338 of IPC and Section 187 of Motor Vehicles Act. The same is not challenged by the other side. Respondents have not placed any acceptable legal evidence before the Tribunal to discard the contents of the charge sheet. However, the Tribunal has dismissed the claim petition which is contrary to law and facts. On all these grounds, sought for allowing this appeal.

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NC: 2023:KHC:21145 MFA No. 5475 of 2015

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As against this, Sri.B.Pradeep, learned counsel for the respondent/insurance company has submitted his arguments that Tribunal has properly appreciated the evidence on record in accordance with law and facts. In the evidence of Investigating Officer - RW1 has clearly stated that he has not received MLC from the concerned hospital. Hence, he has not registered MLC but after receiving the complaint only the IO started investigation and submitted the charge sheet. That there is 1 month delay in filing the complaint. That there are no grounds to interfere with the impugned judgment and award passed by the Tribunal. On all these grounds, sought for dismissal of this Appeal.

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Having heard the arguments of both sides and on perusal of the records, the following points would arise for consideration:

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(1) Whether the claimant/appellant has made

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out grounds to interfere with the impugned judgment and award?

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NC: 2023:KHC:21145 MFA No. 5475 of 2015

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(2) What order/award?

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My answer to the above points are as under:

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(1) Affirmative

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(2) As per final order

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I have carefully gone through the materials placed before this Court. On the basis of the complaint Ex.P-1 filed by the complainant - H.P.Manohar, who is the father of the injured, Bidadi police have registered the case in Crime No.272/2013 against the driver of the vehicle bearing No.KA 20 C 4166 for the commission of offences punishable under Section 279 and 337 of IPC and Section 187 of MV Act and submitted the FIR to the court. Thereafter police have rushed to the spot and conducted spot panchanama on 26.02.2013 in the presence of panchas as per Ex.P-2. Thereafter, IO has recorded the statement of witnesses and obtained MV report as per Ex.P-4 and obtained wound certificate - Ex.P-5 and discharge summary - Ex.P-6 and after thorough investigation the IO has submitted the charge sheet as per Ex.P-3 against the driver of the offending vehicle for the offences punishable under Section 279 and 337 of IPC and Section 187 of MV Act.

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9. Respondent No.1 summoned the IO and examined him as

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RW1. RW1 has clearly deposed as to the filing of charge sheet against the accused for the alleged commission of offences, but he has deposed that he has not received any MLC regarding admission of petitioner in the hospital. Hence, this witness is treated as hostile witness and with the permission of the Court he was cross examined. During the cross examination made by the petitioner he has clearly admitted that after registration of the case he had sent an official to the hospital where the petitioner was admitted and verified the documents at the hospital relating to the admission of the petitioner. Further he has admitted that he has issued notice to the owner of the offending vehicle under Section 133 of the MV Act and owner has given reply for the said notice. Further he has deposed that the driver of the offending vehicle has pleaded guilty before the JMFC Court, Ramanagara and paid the fine amount.

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A perusal of this evidence of RW1 it is crystal clear that after filing the charge sheet the driver of the offending vehicle appeared before the jurisdictional Magistrate and pleaded guilty of the alleged offences. Though the driver of the offending

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vehicle has pleaded guilty for the alleged commission of offences the Tribunal has objected the claim of the claimant on the ground that the MLC was not sent to the police and delay in filing the complaint. A perusal of Ex.P-5 - wound certificate issued by the BGS Hospital reveals that H.M.Karun, S/o.Manohar is admitted to the hospital accompanied by 108 Ambulance with the history of road traffic accident on 27.06.2013. The petitioner got discharged against the medical advise and admitted to the KIMS Hospital and Research Centre. Ex.P-6 - discharge summary reveals that he is admitted to the hospital on 28.06.2013 and the date of operation was 01.07.2013 and date of discharge was 02.07.2013. This discharge summary also reveals that petitioner admitted to the hospital with the history of road traffic accident on 27.06.2013. When the petitioner has admitted to the hospital with the history of road traffic accident it is the duty of the concerned medical officer to register the case as Medico Legal Case and intimation has to be given to the jurisdictional police but he has not done so. The father of the petitioner Manohar has lodged a complaint to the police on 26.07.2013. On the basis of this complaint the SHO of Bidadi Police have registered the case in

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Crime No.272/2013 against the driver of the offending vehicle for the offences punishable under Section 279 and 337 of IPC and Section 187 of MV Act. In Column No.3(c) of the FIR, it is clearly explained as to the delay in filing the complaint, which is not considered by the Tribunal. In this regard I have gone through the judgment of Hon'ble Apex Court in the case of RAVI v. BADRINARAYAN & ORS. reported in 2011 ALL SCR 532 , wherein in para 21 of this judgment the Hon'ble Apex Court has observed as under:

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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 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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11. PW1 has deposed in his evidence regarding the delay in filing the complaint. Respondent No.2 has not appeared

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before the Court and he was placed exparte. Respondent No.1-insurance company has not placed any acceptable legal evidence before the Tribunal to discard the evidence placed by the petitioner. Instead of that respondent - insurance company has examined the IO - Sadananda as RW1, who has supported the case of the petitioner. Respondent - insurance company has not taken any legal steps against the IO who has submitted the charge sheet against the driver of the offending vehicle.

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12. Considering the evidence of petitioner and also keeping in mind the above decision of Hon'ble Apex Court, I am of the considered opinion that the petitioner has proved that accident occurred due to rash and negligent act on the part of the driver of the offending vehicle bearing registration No.KA-20-C-4166 and as result the petitioner has sustained injuries. Tribunal has not properly appreciated the evidence on record in accordance with law and facts in this regard.

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13. With regard to the quantum of compensation is concerned, the petitioner H.M.Karun is examined as PW1 and he has deposed in his evidence that after the accident he was admitted to the BGS Hospital, Uttarahalli Road, Kengeri, Bangalore, wherein x-rays were taken and treatment was given to him and noticed that there was fracture of dislocation of mandible. Thereafter, he was shifted to KIMS Hospital, V.V.Puram, Bangalore and admitted as inpatient, wherein x-rays were taken and he underwent operation. He was admitted as inpatient from 27.06.2013 to 02.07.2013 and took treatment for 6 days as inpatient. Thereafter, he was discharged on 02.07.2013 with doctor advice to take follow up treatment and to take

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bed rest for 6 months. Accordingly, he took treatment. Further he has deposed that prior to the accident he was hale and healthy, the injuries caused to him was grievous in nature and caused permanent disability to him. Prior to

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the accident he was working as an accountant in Professional Telecom, Vijayanagar, Bangalore and drawing a salary of Rs.12,000/- per month.

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PW2 - G.Santosh has deposed in his evidence that he is running Professional Telecom Firm at Rajajinagar, Bangalore and also that petitioner was working as accountant in his firm till 26.06.2013 and he has paid the salary of Rs.15,000/- per month by way of cash to H.M.Karun.

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PW3 - Dr.Riyaz Ulla has deposed in his evidence as to the treatment extended to the petitioner and also deposed as to the disability of the petitioner. Ex.P-5 is the wound certificate issued by the BGS Global Hospital which reveals that petitioner has sustained fracture of dislocation of mandible and doctor has opined that the injured are grievous in nature. Ex.P-6 - discharge summary issued by the KIMS Hospital & Research Centre, which reveals that petitioner was admitted to the hospital on 28.06.2013 and date of operation was 01.07.2013 and date of discharge was 02.07.2013. The nature of injuries is also explained in it. Ex.P-7 is the inpatient bill issued by the BGS Global Hospital. Exs.P-8 and P-9 are the receipts and bills

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produced by the petitioner. Ex.P-10 is the certificate issued by the Professional Telecom, in which it is stated that the petitioner was getting a salary of Rs.15.000/- per month. Ex.P-11 is the SSLC markscard of the petitioner. B.Com. markscards are also produced. Ex.P-17 is the medical records maintained by the KIMS Hospital. Ex.P-18 are is the x-ray of the petitioner.

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A perusal of the entire evidence placed on record it is crystal clear that PW3 the treated doctor has not issued the wound certificate, but he has deposed as to the 10% disability to the whole. It is fairly submitted by the appellant's counsel that now also the petitioner is working in other private sector. Therefore, petitioner is not entitled for compensation of loss of future income.

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Considering the nature of injures, pain and agony, period of taking treatment as mentioned, it is just and proper to award the compensation as under:

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NC: 2023:KHC:21145 MFA No. 5475 of 2015

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Sl. No.	Particulars	Amount
1.	Injury, pain and agony	25,000/-
2.	Loss of earning during treatment	15,000/-
3.	Attendant, food & nourishment, conveyance, transportation charges	15,000/-
4.	Loss of amenities and unhappiness	20,000/-
5.	Medical bills	1,00,000/-
	TOTAL	1,75,000/-

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In view of the above, I proceed to pass the following:

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ORDER

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(a) The appeal is allowed .

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(b) The judgment and award dated 10.06.2015 passed by the Court of Small Causes and Motor Accident Claims Tribunal, Bengaluru in MVC No.1551/2014 is set aside. The petitioner is entitled to total compensation of Rs.1,75,000/- with interest at the rate of 6% per annum

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from the date of claim petition till realization .

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(c) Respondent Nos.1 and 2 being the insurance company and owner of the vehicle, are jointly and severally liable to pay the compensation.

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(d) The insurer is directed to deposit the compensation along with interest at the rate of 6% per annum from the date of claim petition till realization.

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(e) The insurer is directed to deposit the compensation amount within a period of one month from the date of receipt of certified copy of this judgment.

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(f) After depositing the amount, appellant/petitioner is permitted to withdraw the entire amount as the matter is old one.

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(g) Advocate fee is fixed at Rs.2,000/-.

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(h) Draw an award accordingly.

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Sd/JUDGE

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DR List No.: 38 Sl No.: 21

Sri H M Karun v. M/S SBI General Insurance

Case brief

What is this about?

What did the court decide?

Sri H M Karun v. M/S SBI General Insurance

Case brief

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