Partly allowed

Ismail v. the Manager

Karnataka HC6 Jun 2024MFA/3077/2019

Case brief

AI extract

What is this about?

Claimant injured in a 2016 motor cycle-car collision sought compensation; Tribunal dismissed his claim. The appellate court found FIR, charge sheet, wound certificate and IMV report proved the accident, assessed 5% whole-body disability and awarded Rs.1,50,000/- with 6% interest.

What the court decided

AI extract

Ismail Vs the Manager — Insurance | Karnataka HC (2024)

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NC: 2024:KHC:19675 MFA No. 3077 of 2019

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 6^TH DAY OF JUNE, 2024

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BEFORE

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THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR MISCELLANEOUS FIRST APPEAL NO. 3077 OF 2019 (MV-I)

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BETWEEN:

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ISMAIL S/O HUSSAIN SAAB, AGED ABOUT 30 YEARS R/O BEHIND JAIL, SRINAGAR, HASSAN-573201.

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…APPELLANT

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(BY SRI. GIRISH B. BALADARE, ADVOCATE)

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AND:

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THE MANAGER RELIANCE GENERAL INS. CO. LTD., KRITIKA ARCADE, N.R. CIRCLE, HASSAN-573 201.

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Digitally signed by B K MAHENDRAKUMAR Location: HIGH COURT OF KARNATAKA

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K. VASANTHAMOULYA S/O KORAGA, MAJOR, NO.1241, RAJAGHATTA VILLAGE, KASABA HOBLI, HASSAN TALUK AND DISTRICT-573 201

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…RESPONDENTS (R1 - SERVED; V/O DATED 30.03.2023 NOTICE TO R2 IS DSPENSED WITH)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 11.10.2018 PASSED IN MVC NO.646/2017 ON THE FILE OF THE III ADDITIONAL DISTRICT JUDGE AND M.A.C.T., HASSAN, DISMISSING THE CLAIM PETITION FOR COMPENSATION.

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NC: 2024:KHC:19675 MFA No. 3077 of 2019

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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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The appellant-claimant having sustained road traffic accident when he was riding his motor cycle on 26.12.2016 due to rash and negligent driving by the driver of the car filed a claim petition under Section 166 of the IMV act to award just and proper compensation.

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The respondent-Insurance Company entered appearance and filed objections denying the claim of the appellantclaimant that he sustained injuries in a road traffic accident.

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The Trial Court after examining the evidence on record held that the claimant has failed to prove that he sustained injuries in a road traffic accident, and accordingly dismissed the claim petition.

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Respondents including the Insurance company though served with notices have not appeared in person or through their respective counsel.

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Learned counsel for the claimant has placed on record the documents exhibited before the Tribunal. The Appellant filed the claim petition stating that, on 26.12.2016 when he was proceeding on his motor cycle, at that time the driver of the car drove the same in a rash and negligent manner and dashed against the motor cycle as a result of which, the appellant-claimant

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NC: 2024:KHC:19675 MFA No. 3077 of 2019

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sustained injuries. Immediately, a passerby jameel and the driver of the car shifted him to the Mangala Hospital, Hassan.

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Ex.P.2 is a letter/Communication issued by the Mangala Hospital to the Sub-Inspector of Traffic Police Station, Hassan, stating that the claimant by name Ismail is admitted to the hospital on 26.12.2016 with the history of road traffic accident, and registration number of the offending vehicle was described in the said communication. On the same day, the said communication was received by the jurisdictional Police, and on 27.12.2016, the Police recorded the statement of the claimant and thereafter seized the offending vehicle. The Police after investigation submitted the charge sheet against the driver for rash and negligent driving.

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The claimant to prove his case examined himself as P.W.1 and the doctor who had treated him as P.W.2. The evidence of P.W.1 and P.W.2 was not controverted, and nothing was elicited in their examination to disbelieve that the claimant sustained injuries in the road traffic accident. The IMV report at Ex.P.7 also indicated that damage was caused to the motor cycle on which the claimant was riding, and the damage was also caused to the offending vehicle due to the accident.

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The Tribunal based on the presumption that the driver of the offending vehicle after having shifted the claimant to the hospital for treatment in all probability could not have returned back to the accident spot and parked the said car on the side of the

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4 - NC: 2024:KHC:19675 MFA No. 3077 of 2019

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road, dismissed the claim. The said finding is hypothetical and not based on the evidence on record.

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The Tribunal also erroneously observed that the appellant-claimant who was riding the motor cycle without driving license fell down from the motor cycle, and sustained injuries, as suggested by the learned counsel for the Insurance Company, cannot be ruled out.

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Ex.P.1-FIR, Ex.P.2-Communication, Ex.P.4-Charge sheet, Ex.P.6-Wound Certificate, Ex.P.7- IMV report, and Ex.P8 Discharge summary, clearly establishes that the claimant sustained injuries in a road traffic accident due to the rash and negligent driving by the driver of the offending vehicle. Therefore, the impugned order passed by the Tribunal dismissing the claim petition stating that the claimant has not proved that he sustained accidental injuries, is contrary to evidence on record.

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Ex.P.6-wound certificate and Ex.P.8-Discharge summary indicated that the claimant had sustained the following injuries:

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Lacerated wound over chin

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Lacerated wound over hand and swelling Pain over Knee. Fracture of carpel bone Ligament injury knee.

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5 - NC: 2024:KHC:19675 MFA No. 3077 of 2019

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PW.2 the doctor who examined and treated the claimant assessed the disability at 10% to Right upper limb, and 10% to Right Lower Limb. Taking into account that the claimant was an agriculturist, and carrying on scrap business, the permanent disability to the whole body is assessed at 5%. The claimant was aged about 28 years as on the date of the accident, and notional income for the year 2016 is assessed at Rs.9,500/- p.m which comes to Rs.96,900/- ( 9,500 X 12 x17x 5/100) towards loss of future income.

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The claimant was an inpatient for a period of 4 days, and considering the nature of injuries sustained by the claimant, he is entitled for compensation towards loss of income during the laid up period, towards pain and sufferings, and medical expenses. The claimant is entitled for compensation of Rs.53,100/- under these heads. In all, the claimant is entitled for total compensation of Rs.1,50,000/- with 6% interest.

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The impugned Judgment dated 11.10.2018 passed by the III Additional District Judge and MACT at Hassan, in MVC No.646/2017 is hereby set aside, and the claim petition in MVC No.646/2017 is allowed in part.

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The appellant -claimant is entitled for total compensation of Rs.1,50,000/- with interest at 6% p.a. from the date of petition till actual deposit.

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NC: 2024:KHC:19675 MFA No. 3077 of 2019

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The respondent No.1-Insurance company to pay compensation amount with interest within a period of 3 months from the date of receipt of certified copy of this order.

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Accordingly, the appeal is disposed of.

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Sd/JUDGE

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Ismail v. the Manager

Case brief

What is this about?

What the court decided

Ismail v. the Manager

Case brief

What is this about?

What the court decided

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