The Manager Vs Sri Channappa

SRI VASANTHA S/O BASAVARAJAPPA, AGED ABOUT 27 YEARS, R/O KODAKANI VILLAGE SORABA TALUK SHIVAMOGGA DISTRICT - 577 429 RIDE OF BIKE BEARING NO.KA-15/R-3849

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SRI MALTHESH H E S/O ESHWARAPPA, AGED ABOUT 32 YEARS, R/O KODAKANI VILLAGE, SORABA TALUK SHIVAMOGGA DISTRICT- 577 429

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HC-KAR

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OWNER OF BIKE BEARING NO.KA-15/R-3849

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THE MANAGER THE ORIENTAL INSURANCE COMPANY LTD., VINAYAKA COMPLEX GARDEN AREA, 1ST CROSS, B.H.ROAD, SHIVAMOGGA CITY - 577 201.

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…RESPONDENTS

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(BY SRI. B S UMESH, ADVOCATE FOR R3 R1 & R2 IS SERVED )

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 04.07.2016 PASSED IN MVC NO.12/2015 ON THE FILE OF THE SENIOR CIVIL JUDGE AND AMACT, SORABA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION AND ETC.

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IN MFA NO. 7280/2016

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BETWEEN:

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THE MANAGER M/S THE ORIENTAL INSURANCE COMPANY LIMITED VINAYAKA COMPLEX GARDEN AREA 1ST CROSS, SHIVAMOGGA CITY THROUGH ITS REGIONAL OFFICE 2ND FLOOR, SUMANGALA COMPLEX LAMINGTON ROAD, HUBLI-580 020 REPRESENTED BY ITS REGIONAL MANAGER

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...APPELLANT

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(BY SRI. B S UMESH, ADVOCATE)

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AND:

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SRI CHANNAPPA S/O BANGARAPPA AGED ABOUT 41 YEARS OCC:AGRICULTURIST RESIDING AT KODAKANI VILLAGE SORAB TALUK SHIVAMOGGA DISTRICT-576 429

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SRI VASANTHA

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HC-KAR

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S/O BASAVARJAPPA AGED ABOUT 26 YEARS RESIDING AT KODAKANI VILLAGE SORAB TALUK SHIVAMOGGA DISTRICT-576 429

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MALTHESH H E S/O ESHWARAPPA AGED ABOUT 31 YEARS RESIDING AT KODAKANI VILLAGE SORAB TALUK SHIVAMOGGA DISTRICT-576 429

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...RESPONDENTS

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(BY SRI. G M NATARAJ, ADVOCATE FOR R1 R2 & R3 ARE SERVED)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 4.7.2016 PASSED IN MVC NO.12/2015 ON THE FILE OF THE SENIOR CIVIL JUDGE, AMACT, SORABA, AWARDING A COMPENSATION OF ₹5,97,000/- WITH INTEREST @ 6% P.A ON THE COMPENSATION FROM THE DATE OF PETITION TILL THE REALIZATION THERE OF.

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THESE APPEALS, COMING ON FOR FURTHER SUBMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE C.M. POONACHA

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ORAL JUDGMENT

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MFA No.3328/2017 is filed by the claimant under Section

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173(1) of the Motor Vehicle Act, 1988¹ , challenging the judgment and award dated 04.07.2016 passed in MVC.No.12/2015 by the Senior Civil Judge and Addl. MACT,

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1 Hereinafter referred to as ‘M.V.Act’

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HC-KAR

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Sorab² , seeking for enhancement of compensation. MFA No.7280/2016 is filed by the insurer under Section 173(1) of the Act challenging aforesaid judgment and award dated 04.07.2016 challenging fastening of liability on it to pay the compensation awarded. Hence, both the appeals are taken up together for consideration.

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For the sake of convenience, the parties herein are referred as per their rank before the Tribunal.

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The relevant facts in a nutshell leading to the present appeals are that claiming compensation for the injuries sustained in a road traffic accident which occurred on 07.03.2014, the claimant filed a claim petition, whereunder it is the case of the claimant that when he was going for agricultural work of his villager Hoovappa's land from his house, on the left side of the road, a Royal Enfield Motor Cycle being driven by its rider, came in a rash and negligent manner, hit the claimant and caused the accident in question.

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2 Hereinafter referred as ‘the Tribunal’

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HC-KAR

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The rider, owner and insurer of the offending motor cycle were arrayed as respondent Nos.1, 2 and 3 respectively in the claim proceedings. The respondent Nos.1 and 2 before the Tribunal filed statement of objections whereunder, they denied the assertion made in the claim petition regarding the occurrence of the accident.

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The respondent No.3 - insurer in its statement of objections has also denied the occurrence of the accident. The insurer has specifically contended that the claim made is patently false and a delayed complaint was lodged on 08.03.2014 without giving the vehicle number of the person who caused the accident, subsequently, in collusion with respondent Nos.1 and 2 it is falsely shown that the insured vehicle was involved in the accident only for the purpose of claiming compensation.

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The claimant examined himself as PW.1. Exs.P1 to 16 documents were marked in evidence. A doctor was examined as CW.1. Exs.C1 and C2 have been marked. The Tribunal by its judgment and award dated 04.07.2016 partly allowed the claim petition and awarded a total compensation of

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HC-KAR

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₹5,97,000/- together with interest @ 6% p.a. Being aggrieved, the insurer has filed MFA No.7280/2016 and claimants have filed MFA No.3328/2017.

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Learned counsel Sri.B.S.Umesh, appearing for the

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insurer assailing the findings of the Tribunal on issue No.1 framed by it contends that the insured motor cycle was not involved in the accident, contends as under;

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i) That the accident occurred on 07.03.2014, whereas the

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complaint was lodged on a subsequent date i.e., on 08.03.2014 at 1 p.m. by the claimant;

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ii) That when the complaint (Ex.P.1) was lodged, the relatives of the claimant and more particularly one Shashikumar, (younger brother of the claimant) and Tejappa (elder brother’s son of the claimant) were present and the said statement (Ex.P.1) is recorded in the hospital by the police authorities;

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iii) That a further statement (Ex.P.3) has been recorded on 17.05.2014, wherein the vehicle number and the name of the rider have been mentioned, whereas in the

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HC-KAR

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statement dated 08.03.2014 (Ex.P.1), it is merely mentioned that the motor cycle hit the claimant and went away;

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iv) That a panchanama dated 17.05.2014 (Ex.P.7) was recorded on the same day as the further statement, wherein it is stated that the owner on his own has brought the vehicle to the police station and the seizure of the vehicle is shown;

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v) That the statement of Shashikumar (Ex.P.10) and Tejappa (Ex.P.11) were recorded on 17.05.2014, wherein they do not state that they have seen the insured motor cycle which caused the accident in question;

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vi) That inconsistent statements have been made by PW.1 in his cross-examination with regard to the case put forth by the claimant;

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vii) That the owner of the insured motor cycle is from the same village as that of the claimant;

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viii) That although the owner and rider of the vehicle have

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denied the occurrence of the accident in the statement of

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HC-KAR

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objections filed before the Tribunal, they have pleaded guilty in the criminal proceedings and have paid the requisite fine;

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ix) That no other witness apart from the claimant has been examined in the claim proceedings;

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x) That the outcome of the criminal proceedings cannot be the basis in the claim proceedings to accept the case of the claimant and that the claimant in the claim proceedings ought to independently plead and prove the averments made in the claim petition;

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xi) The reference made to Ex.P.13 wherein it is stated that the claimant was taken to a local hospital and thereafter to the hospital which issued Ex.P.13, whereas in the statements/evidence of the claimant there is no averment that the claimant initially took treatment in a local hospital.

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By making the aforementioned submissions,

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learned counsel for the insurer vehemently contends that the claimant had miserably failed in demonstrating that the

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HC-KAR

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accident occurred in the manner as averred in the claim petition and that the inconsistencies as have been pointed out

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clearly demonstrate that the insured vehicle has been implicated by the claimant in collusion with the owner and rider for the purpose of claiming compensation from the insurer.

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Per contra learned counsel Sri.G.M.Natraj, vehemently opposing the submissions made on behalf of the insurer contends that the insurer has not adduced any oral or documentary evidence to, in any manner, falsify the case put forth on behalf of the claimant. That the police authorities have investigated the complainant and filed a charge sheet against the accused and also that the accused has admitted the accident and pleaded guilty in the criminal Court. That the finding of the Tribunal on negligence is just and proper. It is further contended that in the statement of objections filed before the Tribunal, the owner and rider of the vehicle have merely denied the negligence in causing the accident, and further averred that due to the bad condition of the road they have not noticed that the insured motor cycle had hit the claimant causing the accident in question. It is also contended

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HC-KAR

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that the Tribunal having adequately appreciated the oral and documentary evidence available on record and having recorded a finding that the accident has occurred as averred in the claim petition, the said finding ought not to be interfered with by this Court in the present appeal. It is further contended that the quantum of compensation awarded is on the lower side and the learned counsel seeks for enhancement of the quantum of compensation.

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The submissions of the learned counsels have been considered and the material on record including the records of the Tribunal has been perused. The questions that arise for consideration are:

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i. Whether the finding of the Tribunal holding that the claimant has proved the accident as averred in the claim petition and answering issue No.1 in the affirmative is just and proper?

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ii. In the event question No.1 is answered in the affirmative, whether the quantum of compensation awarded by the Tribunal is liable to be enhanced?

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HC-KAR

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Re. question No.(i):

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The claimant in the claim petition has averred that

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when he was going to do agricultural work in Hoovappa’s land from his house, when he was walking on the left side of the road, the motorcycle belonging to respondent No.2 came from the back side and since the said motorcycle was being driven by respondent No.1 - rider of the vehicle in a rash and negligent manner, the said vehicle hit the claimant causing the accident in question. The rider and owner of the motorcycle entered appearance before the Tribunal and filed statement of objections, whereunder, it is stated that the accident did not occur due to the negligent riding of the rider of the motorcycle. It is averred that the road where the accident occurred was in a bad condition and not motorable since the same was having many pits and the rider of the vehicle did not notice the occurrence of the accident.

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The insurer in the statement of objections has specifically contended that the claim is a false one and since a delayed complaint was given without a vehicle number or stating the person who caused the accident, though the owner

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HC-KAR

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and rider of the motorcycle are from the same village as that of the claimant, that in collusion with the owner of the motorcycle, it has been falsely shown that the accident occurred as averred in the claim petition, only to claim compensation from the insurer. The other averments in the claim petition were also denied.

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The claimant was examined as PW1, wherein he has reiterated the assertions made in the claim petition. It was further averred that after the accident, he was taken to a private hospital by an ambulance with the help of one Shashi Kumar and Tejappa. The accident is stated to have occurred on 07.03.2014 and the statement of the claimant has been recorded on 08.03.2014, whereunder it is averred that a motorcycle hit the claimant and went away, at which time the younger brother of the claimant, namely Shashi Kumar and the brother’s son of the claimant, namely Tejappa were present. Thereafter, a further statement of PW.1 was recorded on 17.05.2014 (Ex.P3), whereunder, the claimant mentions the number of the insured motorcycle. The Panchnamma (Ex.P7) was recorded on the same day, wherein it is stated that the

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HC-KAR

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owner has brought the vehicle to the police station. The Statement of Shashi Kumar (Ex.P10) and Tejappa (Ex.P11) have also been recorded on 17.05.2014. It is pertinent to note that the said witnesses have not stated that they have witnessed the accident.

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In the cross-examination of PW1, initially he has stated that he has not seen the motorcycle when the accident occurred. That his relatives Shashi Kumar and Tejappa have seen the motorcycle. That the rider of the motorcycle has admitted his guilt in the criminal proceedings and paid the fine. That at the time when the police authorities recorded his statement in the hospital, the witnesses Shashi Kumar and Tejappa were present.

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The Police authorities pursuant to the complaint have registered the charge sheet against the rider of the motorcycle. It is forthcoming from Ex.P12 that in the criminal case, the rider of the motorcycle has pleaded guilty, pursuant to which, he was convicted of the offences and sentenced to pay a fine. The insurer, apart from cross-examining PW1, has

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HC-KAR

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not independently adduced any oral or documentary evidence with regard to the involvement of the vehicle.

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Learned counsel for the claimant vehemently contends that the police having filed a charge sheet against the rider of the motorcycle that the rider and owner of the motorcycle not having denied the accident in the claim proceedings and the rider of the motorcycle having pleaded guilty in the criminal proceedings, the finding of the Tribunal is just and proper. Reliance is placed by the learned counsel for the claimants on the judgments of the Hon'ble Supreme Court in the case of Sunitha v. Rajasthan State Road Transport Corporation³ and Ranjeet v. Abdul Kayam NEB⁴ to contend that the standard of proof to be borne in mind is that of preponderance of probabilities and not of proof beyond reasonable doubt. That once a charge sheet has been filed against the driver and the driver has been held to be negligent, no further evidence is required to prove negligence.

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The learned counsel for the claimant also places

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reliance on the judgment of the Hon'ble Supreme Court in the

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3 AIR 2019 SC 994

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4 SLP (C) No.10351/2019, DD 25.2.2025

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HC-KAR

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case of Bimla Devi v. Himachal Road Transport Corpn

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ltd.,⁵ which case arose in a fact situation where the claimant filed a claim petition wherein when the deceased was standing on the side of the road, a bus which was parked in the road was reversed without any indication when it hit the deceased. It was the contention of the respondents in the said case that the deceased has died the previous evening and a dead body of a person wrapped in a blanket was lying some distance away, whereafter, the driver was falsely implicated. In the said fact situation, the Hon'ble Supreme Court held that the Tribunal has rightly taken a holistic view of the matter and it was necessary that strict proof in a particular manner may not be possible and that the claimants were merely to establish their case on the touchstone of preponderance of probabilities.

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Reliance is also placed by the learned counsel for the claimant on a Division Bench judgment of this Court in the

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case of Sumangala & Ors., v. Virupakshi & Anr.,⁶ wherein this Court noticing that where there was discrepancy in the final report in the registration number of the vehicle, the proper

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5 2009 (13) SCC 530

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6 Judgment dated 15.6.2011 passed in MFA No.30219/2011 (Circuit Bench, Gulbarga)

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HC-KAR

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course for the insurer would have been to apply to the higher authorities to get the matter re-investigated and challenge the final report by seeking a writ of mandamus for re-investigation. The said recourse not having been availed, only on the basis of some discrepancies, it cannot be argued that the contents of the final report should be discarded, as the final report was submitted by the police, which is an independent state agency.

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However, the learned counsel for the insurer contends that notwithstanding the fact that the insurer has not adduced any independent oral or documentary evidence, from the records produced by the claimant itself, if it is able to be demonstrated that the insured vehicle has been implicated in the accident, the claim petition is liable to be rejected. It is further contended that records of the criminal Court cannot be considered to be a binding adjudication of the involvement of the vehicle, if there are other materials on record, to demonstrate the contrary. Learned counsel for the insurer relies on Division Bench judgments of this Court in the case of Veerappa & Anr., v. Siddappa & Anr.,⁷ and Divisional

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7 ILR 2009 KAR 3562

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HC-KAR

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Manager, M/s.Oriental Insurance Co.Ltd., v. Rayan Fernandes & Anr.,⁸

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It is pertinent to note here that pursuant to the statement of the claimant recorded on 08.03.2014 by the police authorities, whereunder the number of the motorcycle was not mentioned by the claimant, the claimant has given a further statement on 17.05.2014, whereunder the number of the insured motorcycle was furnished. However, the claimant has not mentioned as to how and in what manner he learnt about the number of the motorcycle. In the cross-examination, PW1 has admitted that when the accident occurred he did not notice the vehicle which caused the accident. While the claimant has stated that the vehicle number was known to his relatives, namely Shashi Kumar and Tejappa, whose statements were recorded as Exs.P10 and P11, in the said statements, the said witnesses have not stated that they were aware of the number of the motorcycle. It was also stated that the said witnesses were present when the accident occurred. It is also pertinent to note here that on the date when the further statement was recorded on 17.05.2014, the owner of the motorcycle 8 Judgment dated 5.1.2021 passed in MFA No.7279/2016 c/w MFA No.7110/2016

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voluntarily brought the motorcycle to the police station, consequent to which, the panchnama was drawn. Thereafter, after filing of the charge sheet, the rider and owner of the vehicle have pleaded guilty in the criminal proceedings.

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It is forthcoming from the aforementioned that pursuant to the statement of the claimant (Ex.P1) whereunder the FIR was lodged, thereafter consequent to the recording of the further statement (Ex.P3) and the statement of the witnesses (Exs.P10 and 11), the panchnama was drawn (Ex.P7), the charge sheet has been filed. Hence, it is clear that there was no tangible investigation done by the police authorities.

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It is also pertinent to note here that the rider and owner of the vehicle in the statement of objections filed in the claim proceedings have not denied the involvement of the insured motorcycle in the accident. It has been merely stated that the rider was not aware of the accident due to the bad condition of the road. However, in the criminal proceedings, they have pleaded guilty, as is forthcoming from (Ex.P12).

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HC-KAR

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Although, it is the vehement contention of the learned counsel for the claimant that having regard to the settled position of law that the material should be viewed from a holistic perspective, inasmuch as the charge sheet having been filed and the accused having pleaded guilty in the criminal proceedings and no other witnesses having been examined by the insurer, the finding of the Tribunal ought not to be interfered with, it is pertinent to note here that on a reappreciation of the various inconsistencies in the case of the claimant as have been demonstrated by the insurer, which have been noticed above, even on a preponderance of probabilities the same, points to a situation where the insured vehicle has been implicated without any tangible investigation by the police authorities. The claimant has also not examined any other witness to prove his case apart from PW1.

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In this context, it is pertinent to notice the observations made by the Division Bench of this Court in the case of Veerappa⁵ , which is as follows:

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“ 17. In the instant case there is an attempt on the part of the 1^st respondent/owner to collude with the claimants with the fond hope of saddling the insurance company to pay compensation. Though we feel sorry for the deceased and claimants, our sympathy should not offend the law.

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HC-KAR

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When the owner of the vehicle admitted the accident and had no objection for award of compensation, in order to see that in future such admissions are not made, it is proper for us to direct the 1^st respondent who has made a categorical admission that his vehicle was involved in the accident, to pay compensation. It serves dual purpose. The claimants if they intend to recover compensation from the owner of the vehicle, this award would enable them to do so. It would also act as a sufficient deterrent to such owners who are planted in the case to foist liability on the Insurance Company, if they are made to pay from their pockets. ….. ”

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(emphasis supplied)

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Having regard to the finding recorded by the Division Bench and the fact that the owner has admitted the accident, it is just and proper that the owner be directed to pay the compensation awarded by the Tribunal.

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Hence, question No.(i) framed for consideration is

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answered in the negative .

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Re. question No.(ii):

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The claimant is aged 40 years as on the date of accident i.e. on 07.03.2014. Hence, the applicable multiplier is 15 as has been rightly assessed by the Tribunal.

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It is averred that the claimant is an agriculturist. However, no documents are produced to demonstrate his

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HC-KAR

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income. The Tribunal has assessed the notional income of the claimant at ₹4,500/- per month. However, having regard to the date of the accident, it is just and proper that the notional income of the claimant is re-assessed as ₹8,500/- per month.

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It is forthcoming from the wound certificate (Ex.P9), discharge summary(Ex.P13), the testimony of the doctor(CW-1) as well as other medical evidence on record that the claimant has sustained crush injury of the left ankle. The claimant was treated as an inpatient from 07.03.2014 to 11.03.2014. It is noticed that the left leg of the claimant has been amputated below the knee. The doctor has assessed the whole body disability of claimant as 48.3 %. The tribunal has reassessed the whole body disability of the claimant as 48%. Upon re-appreciation of the material on record and keeping in mind the percentage of loss of earning capacity, mentioned in Part-II of Schedule–I of the Employees’ Compensation Act,1923, it is just and proper that the disability of the claimant be assessed at 50%.

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In view of the aforementioned, the compensation is reassessed as follows:

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HC-KAR

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i) Having regard to the nature of injuries sustained, the compensation towards pain and suffering is reassessed as ₹75,000/- as against ₹25,000/awarded by the Tribunal;

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ii) The Tribunal awarded medical expenses of ₹15,000/- as per actual medical bills which is just and proper;

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iii) Having regard to the nature of injuries sustained and the period of treatment, the compensation towards food, nutrition and attendant charges is reassessed as ₹10,000/- as against ₹750/- awarded by the Tribunal;

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iv) The laid up period is assessed as 3 months and loss of income during laid up period is assessed as ₹25,500/-(₹8500X3);

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v) The Tribunal has awarded future medical expenses at ₹50,000/- which is just and proper;

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vi) Having regard to the nature of injuries sustained and the extent of disability, it is just and proper to award compensation of ₹50,000/- towards loss of amenities.

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HC-KAR

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vii) The loss of future earning capacity/disability is reassessed as ₹7,65,000/-(₹8,500X12X15X50%).

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In view of the same, the compensation is

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reassessed as follows:

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Sl. No.	Heads	Amount awarded by the Tribunal (₹)	Amount awarded by this Court (₹)
1.	Pain and suffering	25,000-00	75,000-00
2.	Medical expenses	15,000-00	15,000-00
3.	Attendant and convenience charges	750-00	10,000-00
4.	Loss of income during laid up period	-	25,500-00
4.	Loss of future income	5,05,440-00	7,65,000-00
5	Future medical expenses	50,000-00	-
	Total	5,96,190-00	8,90,500-00

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Accordingly, question No.(ii) framed for

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consideration is answered in the affirmative . The Claimant is entitled to an enhanced compensation of ₹2,94,310-00

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(₹ 8,90,500/- - ₹5,96,190/-)rounded of to ₹2,94,500-00.

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Hence, the following:

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ORDER

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i) Both the appeals are partly allowed;

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HC-KAR

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ii) The judgment and award dated 04.07.2016 passed in MVC.No.12/2015 by the Senior Civil Judge and Addl. MACT, Sorab is modified to the extent of holding that the claimant shall be entitled to a total compensation of ₹8,90,500/- together with interest at 6% p.a., and that the compensation together with accrued interest shall be paid by the owner of the motorcycle (respondent No.2 before the Tribunal). The claim proceedings against respondent No.3 - insurer stands rejected.

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iii) The amount deposited by the appellant in MFA No.7280/2016 be refunded to the appellant;

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