In The High Court Of Karnataka At Bengaluru DATED THIS THE 20TH DAY OF NOVEMBER, 2019 BEFORE The Hon’ble Mr.Justice B.M.Shyam Prasad Miscellaneous first Appeal No. 4510 of 2010 Between:
M/S CHOLAMANDALAN MS. GENERAL INSURANCE CO LTD CHENNAI-500 001 BY CHOLAMANDALAM, MS. GENERAL INSURANCE CO LTD, ‘DARE HOUSE’, II FLOOR,NO.2, N.S.C BOSE ROAD, CHENNAI-600 001 ... APPELLANT (BY SRI. O. MAHESH ., ADVOCATE) And:
1. K. L. MUNE GOWDA, SON OF LAKSHMAN AGED ABOUT 26 YEARS, RESIDENT OF KALINAYAKANAHALLI, HEMARNAHALLI POST,SIDLAGHATTA TQ. KOLAR DIST.NOW R/A P.C.EXTENSION, KOLAR.
1(a). K.H. LAKSHMANA, AGED ABOUT 55 YEARS.
1(b). SMT. NARYANAMMA, WIFE OF K.H. LAKSHMAN AGED 48 YEARS.
1(c). C.RAMANJI, SON OF K.H. LAKSHMAN AGED 28 YEARS.
(AMEDNDED VIDE COURT ORDER DATED 21.10.2013) 2. A. BALAKRISHNA SON OF LATE ACHAPPA MAJOR, VENKATESWARA MOTOR SERVICE, MAYURA CIRCLE, SIDLAGHATTA.
... RESPONDENTS (BY SMT. SUSANA R. REDDDY., ADVOCATE FOR R1(A-C);
SRI. H.A. MANJUNATHA PRASANNA., ADVOCATE FOR R-2) THIS MISCELLENEOUS FIRST APPEAL IS FILED UNDER SEC. 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 24.03.2010 PASSED IN MVC NO. 38/2008 ON THE FILE OF PRESIDING OFFICER, FAST TRACK COURT-1, KOLAR, C/C OF I ADDITIONAL SESSIONS JUDGE & MACT, KOLAR, AWARDING A COMPENSATION OF RS. 97,400/- WITH INTEREST AT 6% FROM THE DATE OF PETITION TILL REALISATION.
THIS MISCELLENEOUS FIRST APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
Judgment This appeal is filed by the Insurer of a passenger bus bearing registration No.KA-40/2342 calling in question the judgment and award dated 24.03.2010 in MVC No.38/2008 on the file of the I Additional District and Sessions Judge and MACT, Kolar (for short, ‘the Tribunal’). This claim petition in MVC No.38/2008 is filed by the deceased K.L.Mune Gowda who suffered injuries in a road accident on 30.8.2007. The Tribunal by its impugned judgment and award dated 24.3.2010 has allowed the claim petition awarding a sum of Rs.97,400/- along with the interest at the rate of 6% per annum from the date of petition till realisation. The appellant – Insurer and the owner of the aforesaid offending vehicle are held jointly and severally liable to pay compensation. The claimant – deceased K.L.Mune Gowda breathed his last after the date of the impugned judgment and award by the Tribunal.
2. The only question that is canvassed by the learned counsel for the Insurer is that the Tribunal, despite the evidence on record to establish that the offending vehicle is falsely implicated by the deceased claimant, has fastened the liability on the appellant – Insurer to pay compensation. The learned counsel for the appellant – Insurer submits that the Insurer’s consistent case is that, even according to the deceased claimant, the accident was caused by a KSRTC bus and not by the offending vehicle.
But the offending vehicle is falsely implicated. The Tribunal has rejected the appellant’s defence holding that the deceased – claimant had suffered grievous injuries and the deceased claimant could not have fabricated the information to falsely implicate the offending vehicle. The learned counsel in support of his submission has emphasized the following circumstances in vindication of the appellant’s defense.
a) The complaint is lodged by the deceased claimant two days after the accident on 30.8.2007, and even in his complaint he has stated that he did not personally know which vehicle was involved in the accident and it is only based on the statement of his brother that he has learnt that the offending vehicle caused the accident.
b) The brother who is supposed to have given the information to the deceased claimant is not examined.
c) The deceased claimant was taken to the Hospital in Siddlaghatta immediately after the accident, but there is no reference to the vehicle which caused the accident in the MLC Register extract issued by this Hospital, and it is only in the MLC register issued by M/s.
R.L. Jalappa Hospital and Research Centre, it is recorded that the accident was caused by a privately owned bus – the offending vehicle insured with the Insurer. This establishes that the offending vehicle was not involved in the accident and in a belated, and as an afterthought effort, the offending vehicle is falsely implicated.
3. The legal representatives of the deceased claimant, the respondents refuted these submissions. The learned Counsel has relied upon the following undisputed facts:
a) The deceased claimant, immediately after the accident, was taken to Government Hospital, Shidlaghatta and thereafter, to S.K. Hospital, Kolar and subsequently to R.L.Jalappa Hospital and Research Centre.
b) As per the MLC register issued by the Medical Officer, General Hospital, Shidlaghatta, where the deceased claimant was taken for treatment immediately after the accident, the authorities are informed that he was injured in a road accident. It is not stated before such authority that the accident was caused by a KSRTC bus. However, the discharge summary issued by R.L.Jalappa Hospital and Research Centre indicates that it was informed to the authorities that the deceased claimant was injured in an accident caused by a KSRTC bus.
c) The learned counsel emphasized that this could be an error inasmuch as the authorities in this Hospital recorded that the deceased claimant was hurt in his left leg, while in fact, it is not disputed that he was hurt in the right leg. The deceased claimant who was traumatized because of the injuries in the accident has informed the police on 2.9.2007 that the accident was caused by the offending vehicle and this information was given to him by his brother. The Tribunal, therefore, has rightly appreciated the evidence on record to conclude that the appellant could not have fabricated information about the involvement of the offending vehicle within two days.
4. In the light of these submissions, the question that arises for consideration in this appeal is:
“Whether any interference is called for with the Tribunal’s finding that the deceased claimant is able to establish that the accident was caused by the driver of the offending vehicle.”
5. The Insurer’s defence will have to be considered in the light of the evidence on record. The first information report is registered on the basis of the statement given by the deceased claimant recorded on 2.9.2007 at about 2.45 p.m. that is within 48 hours from the date of the accident.
The deceased claimant is categorical that he did not know the registration number of the vehicle which caused the accident, but he was informed by his brother that the offending vehicle caused the accident. This statement is impeached essentially on the ground that the information was lodged belatedly and therefore, there could be room for manipulation. However, the statement of the deceased claimant will have to be examined in the background of other evidence on record, and chief amongst them is the medical evidence and the evidence of one of the officers of the appellant – Insurer who is examined as RW.1.
6. The MLC register extracts issued by the Medical Officer, Government Hospital, Shidlaghatta is available on record. The history of the accident is recorded in this document only as a ‘road traffic accident’. There is no reference to the nature of the vehicle involved in the accident. The next document is the Discharge Summary issued by R.L.Jalappa Hospital and Research Centre, and this document does not refer to the involvement of KSRTC bus. As rightly argued by the learned counsel for the legal representatives of the deceased claimant, the Discharge Summary is defective in material aspects and this creates serious doubt about the veracity of the entries made. An officer of the Insurer, who is examined as RW.1, is categorical in his examination that the Insurer has appointed an investigator to look into the reasons for the accident, and a report is also secured. There would be no difficulty for the Insurer to place such Report on record. However, the Insurer has admittedly not placed this Report on record. The Insurer who wants to refute the claimant’s evidence does not place that material, which is in its custody, and could have raised doubts about the deceased claimant’s statement. The deceased claimant’s statement to the police, which is recorded after the accident with the delay of two days, cannot be doubted in the aforesaid circumstances. In the considered opinion of this Court, the Tribunal, on the scale of preponderance of probabilities, has rightly assessed the material on record in arriving its conclusion that the accident is caused by the offending vehicle.
For the foregoing reason, the appeal is dismissed.
Sd/- Judge SA Ct:sr