M/S Icici Lombard General Insurance Company Vs Sri Mathew P I

M/S ICICI LOMBARD GENERAL INSURANCE COMPANY LIMITED, NO.89, 2ND FLOOR, S V R COMPLEX, HOSUR MAIN ROAD, MADIWALA, BANGALORE - 560 068. REP BY ITS MANAGER LEGAL.

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…APPELLANT

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(BY SRI.K.S.LAKSHMINARASAPPA., ADVOCATE FOR SRI.A M VENKATESH.,ADVOCATE)

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AND:

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Digitally signed by KORLAHALLI BHARATHIDEVIKRISHNACHARYA Location: HIGH COURT OF KARNATAKA

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SRI MATHEW P I, S/O SRI IDUKULA, AGED ABOUT 51 YEARS, R/AT P NO.28, GNR RESIDENCY PARK, NEAR DIAMO P U COLLEGE, T. C. PALYA, K. R. PURAM, BANGALORE - 560 036.

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SRI KANTHARAJ G, S/O MUNIYAPPA, MAJOR, R/O NO.287, GUNJUR(V) & (P),

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HC-KAR

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SARJAPURA ROAD, VARTHUR, BANGALORE - 560 087. (R C OWNER OF MOTORCYCLE BEARING REG NO.KA-01/X-7582)

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…RESPONDENTS

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(BY SRI. H.MUJTABA., ADVOCATE FOR R-1; SRI. KANTHARAJ G.M., SERVED BUT UNREPRESENTED)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:22.04.2014 PASSED IN MVC NO.2679/2012 ON THE FILE OF IX ADDITIONAL SMALL CAUSES JUDGE & XXXIV ACMM, COURT OF SMALL CAUSES, MEMBER, MACT-7, BANGALORE, AWARDING COMPENSATION OF RS.3,06,500/- WITH INTEREST AT THE RATE OF 6% P.A FROM THE DATE OF PETITION TILL PAYMENT.

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THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE UMESH M ADIGA

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ORAL JUDGMENT

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This is insurer's appeal, challenging the judgment and award dated 22.04.2014 passed in MVC No.2679/2012 by the IX Additional Small Causes Court and Additional MACT, Bangalore, (SCCH-7) (hereinafter referred to as ‘the Tribunal’ for short).

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For the sake of convenience, the parties are referred to as per their ranking before the Tribunal.

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NC: 2025:KHC:20358 MFA No. 6579 of 2014

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HC-KAR

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Brief facts of the case are that on 12.12.2011 at about 7.15 p.m. claimant met with an accident on Bengaluru to Kolar NH-4 Road, due to rash and negligent riding of the motorcycle bearing Reg.No.KA-01-X-7582 by its rider. As a result, the claimant sustained facture of the left tibia and fibula and other minor injuries. He was shifted to the Hosmat Hospital, Bengalore, for treatment, wherein he was admitted from 13.12.2011 to 15.12.2011 and he underwent surgery. Again he was admitted on 09.03.2012 to 12.03.2012, to the said hospital and he underwent another surgery on 22.08.2012 for removal of the implants. He was aged about 45 years, working as a Supervisor and earning Rs.13,000/- p.m. Due to injuries sustained in the accident, he has been suffering from permanent disability, which has affected his earning capacity. With these reasons, he prayed to award compensation of Rs.10,00,000/-.

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Respondent No.1 is insurer and respondent No.2 is owner of the said vehicle. Both have filed written statements denying the contentions of the claimant. Respondent No.2 has further contended that the said vehicle was insured with respondent No.1 and respondent No.1 is liable to pay the

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HC-KAR

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compensation in case the claim petition is allowed. With these reasons, respondent No.1 prayed to dismiss the claim petition, against him.

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Respondent No.2, in addition to denial of petition

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averments, contended that it was not liable to pay compensation and prayed to dismiss the claim petition against it.

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From the rival contentions of the parties, the Tribunal framed the necessary issues for its determination.

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The claimant to prove his case examined 2 witnesses as PWs.1 and 2 and got marked 17 documents as Exs.P1 to P17. Respondents examined 2 witnesses as RWs.1 and 2 and marked 2 documents as Exs.R1 and R2.

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The Tribunal, after hearing both the parties and appreciating the materials available on record held that the accident had taken place due to rash and negligent riding of the motorcycle by its rider. The Tribunal assessed the age, income, disability etc., and awarded the following amount of compensation.

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HC-KAR

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Sl.No	Heads	Amount
1.	Loss of future income arising out of 10% disability	Rs.75,600/-.
2.	Pain and sufferings	Rs.30,000/-.
3.	Loss of amenities of life	Rs.20,000/-
4.	Loss of income during laid up period	Rs.9,000/-
5.	Actual medical expenses	Rs.1,36,900/-
6.	Future medical expenses	Rs.20,000/-
7.	Conveyance	Rs.5,000/-
8.	Attendant charges	Rs.5,000/-
9.	Food, nourishment & diet charges	Rs.5,000/-
	Total	Rs.3,06,500/-

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Being aggrieved by the said finding, the insurer

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preferred this appeal on the grounds mentioned in the appeal memo.

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I have heard the arguments of learned counsel for

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the appellant as well as learned counsel for respondent No.1.

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The only question that arises for determination is:

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"1. Whether the Tribunal erred in holding that the accident took place due involvement of the motor cycle, bearing Reg.No.KA-01-X-7582?"

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HC-KAR

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Learned counsel for the appellant contends that in the medical records there is no reference regarding history of the injury sustained by the claimant. The claimant has not produced the statement allegedly given by him to the doctor. PW.1 in his cross-examination has stated that he had forgotten the vehicle number after the accident, but his friend, who was present at the spot of the accident, told him the registration number of the said vehicle. The said person was not examined and looking at the mahazar, the concerned police officials seized the vehicle even without giving notice to the owner of the vehicle. The rider of the vehicle faced trial before the criminal Court in the case registered by the police, relating to the accident in question and he was acquitted by the criminal Court. It clearly indicates that the said vehicle was falsely implicated in this case. Even looking at the charge sheet, there are no eyewitness to the incident. With these reasons, he prayed to set aside the impugned judgment.

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Learned counsel for claimant/respondent No.1 supports the impugned judgment and submits that the Tribunal considered all these facts and allowed the claim petition. Since it was not a criminal trial before the Tribunal prima facie proof

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HC-KAR

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of accident was sufficient. Therefore, acquittal of the rider of the motorcycle by criminal Court is not a ground for denial of the compensation. The said charge sheet was not challenged by the rider or owner of the said vehicle, on the ground that the said vehicle was falsely implicated. With these reasons, he prayed to dismiss the appeal.

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I have anxiously scanned the materials produced before the Court. P.W-1 has stated that he told the doctor in the hospital about the history of his injuries. Undisputedly, the said history is not found in the medical records. That does not mean that claimant had not sustained injuries in the vehicle accident, as stated in the petition. It may be failure of the concerned hospital or doctor to note the history of the incident wherein the claimant sustained the injuries.

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P.W-1 was thoroughly cross-examined by the insurer about the accident, but nothing was brought out to disbelieve this evidence. It is argued that the claimant has deliberately not produced medical records from the concerned hospital to support the truth. The said submission presupposes that there were records in the hospital about the history of

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HC-KAR

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incident wherein the claimant had sustained injury. If those documents are favourable to it, then a insurer could have produced the same to disprove the case of the claimants.

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A criminal case was registered against the rider of the motorcycle for the accident in question. Claimant has produced copy of the FIR, complaint, Mahazars, motorcycle inspection report, wound certificate and charge sheet as per Exs.P.1 to P.7. It is also pertinent to note that the complaint was given by the claimant.

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A person present near the spot of accident filed the complaint. He had seen the vehicle number involved in the accident and sent the claimant to the hospital. He lodged complaint on the next day of the accident and also given reasons for delay in lodging complaint. The police investigated about the incident and filed charge sheet. The said charge sheet was not challenged by the owner or rider of the offending vehicle. The above said materials prima facie prove that claimant had sustained injuries in a vehicle accident, involving the offending vehicle.

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HC-KAR

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Ex.R.1 is a copy of the order sheet evidence and judgment passed in C.C. No.2038/2012 by the Additional Chief Judicial Magistrate, Bangalore (R) District, Bangalore; no where it is stated in the Ex.R-1 that the vehicle was falsely implicated in this case. On the contrary, reasons assigned by the learned Magistrate show that there was no reliable evidence to believe the story of the prosecution. Therefore, it was not a honourable acquittal. In view of these reasons, the contentions of the insurer that the vehicle was falsely implicated in this case is merely a assumption and surprise. The Tribunal has properly appreciated the materials and rightly allowed the claim petition. For the aforesaid reasons, I answer the above said question in

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the negative.

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