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Judgment
H.P. Sandesh, J
Though the matters are listed for admission today, with the consent of both the learned counsel for the parties, they are taken up for final disposal.
These two appeals are filed by the Insurance Company and the claimant, challenging the judgment and award dated 17.01.2013 passed in
M.V.C.No.1636/2009, on the file of the Additional District and Sessions Judge and Additional M.A.C.T., Chitradurga ('the Tribunal' for short).
The parties are referred to as per their original rankings before the Tribunal to avoid confusion and for the convenience of the Court.
The factual matrix of the case is that it is the case of the claimant that he had sustained the injuries in the road accident that had taken place on
07.11.2006 at about 6.45 p.m. near M.G. Circle, Hiriyur Town due to the rash and negligent riding of the motor cycle bearing registration No.KA-06-
X-641 by its rider. As a result, he sustained fracture and subjected to surgery. The claimant was a school teacher and due to the accident, he could
not attend his duty for a period of two months. The said claim petition was opposed by the Insurance Company by filing a detailed statement of
objection and the main contention which was taken in the said statement of objections is that the vehicle has been falsely implicated in order to get the
compensation and to make a wrongful gain.
The claimant, in order to substantiate the claim, examined himself as P.W.1 and also the doctor as P.W.2. The claimant also got marked the
documents at Exs.P1 to P9. The respondent-Insurance Company also examined its official as RW.1 and got marked the documents Exs.R1 and R2.
The Tribunal, after considering both oral and documentary evidence, allowed the claim petition by granting compensation to the tune of Rs.85,000/-
with interest at the rate of 6% per annum. The said award has been challenged by the Insurance Company by filing an appeal in MFA No.4600/2013.
The main contention of the appellant/Insurance Company in the appeal in MFA No.4600/2013 is that the Tribunal has failed to consider the material
on record with respect to the fact that there was a delay of 4 months in lodging the complaint. Though the accident had taken place on 07.11.2006, the
complaint was lodged on 06.03.2007. The Tribunal was also required to analyze the contents of the document at Ex.R2, which is the certificate issued
by the Orthopedic Surgeon stating that they do not have any medico legal documents relating to the case of the claimant. The delay in filing the
complaint would itself clearly discloses that it is nothing but a false implication of the vehicle in order to make a wrongful gain.
Learned counsel appearing for the appellant/Insurance Company would reiterate the grounds urged in the appeal memo and also would contend that
the complaint is filed after lapse of 4 months from the date of the accident. The claimant, being a teacher has given the explanation that the rider of
the motorcycle has assured to meet the medical expenses but later, he failed to do so and hence, there was a delay in lodging the complaint. When
there is a delay of 4 months in lodging the complainant, the reason so explained by the claimant is not acceptable. Learned counsel appearing for the
appellant/Insurance Company would vehemently contend that the Tribunal has failed to appreciate the material available on record, particularly, the
document at Ex.R2.
Per contra, learned counsel appearing for the claimant, who is an appellant in MFA No.7287/2013, would vehemently contend that the Tribunal has
failed to award the just and reasonable compensation and without taking note of the nature of the injuries and the fracture suffered by the claimant,
the Tribunal has erroneously awarded a compensation of Rs.25,000/- under the head of 'injuries, pain and sufferings'. Learned counsel would further
contend that the 'loss of income during the laid up period' is also not considered by the Tribunal. Instead an amount of Rs.3,000/- is awarded towards
the 'incidental and miscellaneous expenses', which is on the lower side. Learned counsel would further contend that the fact of the treatment being
taken by the claimant at Bengaluru though he was the resident of Hiriyur, has also not been taken note of by the Tribunal while awarding the
compensation. Hence, it requires interference of this Court. Learned counsel would also vehemently contend that in order to substantiate the
contention made by the Insurance Company that the vehicle was falsely implicated, nothing has been elicited in the evidence and also no documentary
evidence is placed before the Court to come to the conclusion that the vehicle has been falsely implicated.
Having heard the arguments of the learned counsel for the Insurance Company and the learned counsel for the claimant, the points that would arise
for the consideration of this Court are:-
(i) Whether the appellant/Insurance Company has made out the ground that the vehicle has been falsely implicated in the case in order to make a
wrongful gain by the claimant?
(ii) Whether the Tribunal has committed an error in not awarding the just and reasonable compensation and whether it requires interference of this
Court ?
Point No.1:-
Having heard the respective counsel and also on perusal of the records, there is no dispute with regard to the fact that the accident had occurred on
07.11.2006 at about 6.45 p.m. On perusal of the complaint and FIR, it is clear that the complaint was given on 06.03.2007 in terms of Ex.P1. The
other documents relied upon by the claimant are Ex.P2 - the spot panchanama, Ex.P3 - seizure mahazar and Ex.P4 - IMV Report, in order to prove
the accident. No doubt, the defence has been taken in the statement of objections filed by the Insurance Company that the vehicle has been falsely
implicated in the case. But in the cross-examination of P.W.1, nothing is elicited with regard to the implication of the said vehicle. No doubt, the
respondent has examined its official as RW.1 in the case on hand, but the Investigating Officer has not been examined. When the respondent-
Insurance Company has disputed the very accident itself and contended that the vehicle has been implicated in the case, the same could have been
elicited by examining the Investigating Officer but nothing has been done, except relying upon the documents Exs.R1 and R2. Ex.R1 is the copy of the
insurance policy, which would not come to the aid of the Insurance Company with regard to the defence that has been taken up by them. However,
the document at Ex.R2, which is the certificate issued by the Jayanagar Orthopaedic Center discloses with regard to the surgery which the claimant
had undergone and the date of admission and discharge from the hospital.
The only contention raised by the Insurance Company is that there are no medico legal documents related to the case. Even if such documents are
available, the same would not come to the aid of the Insurance Company in proving its contention that the vehicle is falsely implicated in the case to
make a wrongful gain. In the absence of any documentary evidence or the rebuttal evidence on record, the contention of the Insurance Company
cannot be accepted. Hence, point No.1 is answered in the negative.
Point No.2:-
The contention which is raised by the learned counsel for the claimant is that the Tribunal has committed an error in awarding the compensation of
Rs.25,000/- under the head of 'injury, pain and sufferings'. In support of his contention, he relied upon the document at Ex.P5 - wound certificate with
regard to the surgery. The main document, which is at Ex.R2 produced by the respondent-Insurance Company discloses that the claimant was
subjected to surgery at Jayanagar Orthopaedic Center and he was an inpatient for a period of 15 days for having undergone surgery. On perusal of
Ex.R2, it discloses that the claimant had suffered tibial condylar fracuture (L) and abrasion over the right elbow. Taking note of the treatment
undergone by the claimant, it is appropriate to enhance the compensation awarded under the head of 'injury, pain and sufferings' to Rs.35,000/- as
against Rs.25,000/-. Since the accident had taken place in the year 2006, the Tribunal has also considered the medical expenses based on the records.
Hence, there are no grounds to interfere with regard to awarding an additional compensation under the head of 'medical expenses'.
Taking note of the compensation awarded under the head of 'incidental and miscellaneous expenses' which is to the tune of Rs.3,000/-, it is clear
that the Tribunal has failed to take note of the fact that the accident had taken place at Hiriyur Town and thereafter, the claimant was shifted to
Bengaluru, where he took treatment being an inpatient for a period of 15 days and also undergone surgery. When such being the case, awarding an
amount of Rs.3,000/- under the head of 'incidental and miscellaneous expenses, which includes food, nourishment and conveyance etc., appears to be
meagre and requires to be enhanced to Rs.10,000/- as the accident is of the year 2006.
The Tribunal further awarded an amount of Rs.20,000/- under the head of 'loss of amenities' but in respect of 'loss of income during the laid up
period' is concerned, no compensation has been awarded. P.W.1 in the cross- examination has categorically admitted that after 2 months of the
accident, he had reported to his duty. When such being the case, the Tribunal ought to have awarded compensation under the head of 'loss of income
during the laid up period'. The fact that the claimant is a school teacher is not in dispute. However, in order to substantiate the same, no document has
been produced before the Tribunal showing his income. The Tribunal while assessing the 'loss of amenities', taken note of the fact that he was a
school teacher. In the absence of any documentary proof regarding loss of income for a period of two months and the accident had taken place in the
year 2006, it is appropriate to award an amount of Rs.20,000/- for two months on guess work. Accordingly, the claimant is entitled to a total
compensation of Rs.1,22,000/- as against Rs.85,000/-.
In view of the discussion made above, I pass the following:-
ORDER
(i) The appeal in MFA No.4660/2013 is dismissed.
(ii) The appeal in MFA No.7287/2013 is allowed in part. The judgment and award passed by the Tribunal in MVC No.1636/2009 is modified by
granting a compensation of Rs.1,22,000/- with interest at the rate of 6% per annum from the date of petition till realization.
(iii) Respondent-Insurance Company is directed to deposit the amount within 8 weeks' from today.
(iv) The amount in deposit made by the Insurance Company is ordered to be transmitted to the Tribunal, forthwith.
(v) Registry to transmit the Trial Court Records to the concerned Tribunal, forthwith.