IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF AUGUST, 2019 BEFORE THE HON'BLE MR. JUSTICE S.G.PANDIT M.F.A.No.10437/2010 [MV] BETWEEN:
THE DIVISIONAL MANAGER THE NATIONAL INSURANCE CO. LTD., DIVISIONAL OFFICE MELGIRI PLAZA MCC ‘B’ BLOCK DENTAL COLLEGE ROAD DAVANGERE.
REP. BY THE MANAGER NATIONAL INSURANCE CO. LTD., REGIONAL OFFICE SUBHARAM COMPLEX 2ND FLOOR, 144, M.G.ROAD BANGALORE-01.
(BY SRI.M NARAYANAPPA, ADV.) AND:
1. SRI KRISHNA S/O SRINIVAS DAIVAGNA AGED ABOUT 56 YEARS GOLDSMITH R/O THALAVARAGALLI D.NO.137/1, DAVANAGERE.
... APPELLANT 2. SRI ARUNKUMAR B T S/O THIPPESWAMY G M DRIVER OF MOTOR CYCLE BEARING REGN.NO.KA-17-W-6482 R/O BOMMENAHALLI VILLAGE KODAGANUR, DAVANAGERE TQ.
3. SRI RAJESH N.M. S/O NAGAPPA OWNER OF MOTOR CYCLE BEARING REGN.NO.KA-17-W-6482 R/O BOMMENAHALLI VILLAGE KODAGANUR, DAVANAGERE TQ.
(BY SRI.B M HALASWAMY, ADV. FOR R1 SRI CHANDRASHEKAR, ADV. FOR R2 & 3) ... RESPONDENTS THIS M.F.A. FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:24.07.2010 PASSED IN MVC NO.1073/2008 ON THE FILE OF THE I ADDITIONAL CIVIL JUDGE (SR.DN) AND MACT-V, DAVANAGERE, AWARDING A COMPENSATION OF RS.80,000/- WITH INTEREST @ 7% P.A. FROM THE DATE OF PETITION TILL REALIZATION.
THIS M.F.A. COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T The Insurance Company is before this Court aggrieved by the judgment and award dated 24.07.2010 passed in MVC No.1073/2008 on the file of I Addl.Civil Judge (Sr.Dn.) and MACT-V, Davanagere.
2. The 1st respondent herein filed claim petition under Section 166 of the Motor Vehicles Act, 1988, seeking compensation for the injuries suffered by him in the Road Traffic Accident that occurred on 07.06.2008. The claimant states that on 07.06.2008 when the claimant along with his son was walkng on the extreme left side of the road on P.B. Road, Davangere, at that the Motor Bike bearing Reg.No.KA-17/W-6482 came in a rash, negligent manner and dashed against the claimant. Due to which he fell down and sustained grievous injuries and was taken to Bapuji Hospital. Where he was inpatient up to 21.06.2008. Subsequently for further treatment he was admitted to City Central Hospital, Davangere, as patient from 15.07.2008 to 23.07.2008.
3. On issuance of summons, the 3rd respondent – Insurance Company appeared and filed its objection denying the petition averments. The insurer specifically contented that there is delay of 45 days in registering the complaint and in the absence of supporting material to substantiate the delay, the claim petition deserves to be dismissed. It is also contended that the offending vehicle was not involved in the accident in question and the claimant in collusion with police, to claim compensation has implicated the Motor Bike. The claimant examined himself as PW.1 and got marked the documents Exs.P1 to P151. The insurer examined two witnesses as RW.1 and RW.2 and got marked the documents R.1 to R.4. The Tribunal on assessing the material on record, awarded total compensation of a sum of Rs.80,000/- along with interest at 7% p.a. from the date of petition till the date of deposit. Aggrieved by the impugned judgment and award the appellant- Insurance Company is before this Court in this appeal.
4. Heard the learned counsel for the appellant - Insurance Company and learned counsel for the respondents. Perused the appeal papers and the lower court records.
5. The learned counsel for the appellant – Insurance Company would submit that there is delay of 56 days in filing the complaint and registering the FIR. Accident had taken place on 07.06.2008, where as the complaint was lodged on 02.08.2008. The learned counsel further submits that there is no proper explanation offered for such an inordinate delay. The reason that the 1st respondent had assured the claimant to settle the claim and as he failed to settle the claim, the claimant filed complaint on 02.08.2008, cannot be believed. It is also further submitted that the injuries suffered by the claimant are not grievous and the claimant could have lodged the complaint on the date of accident or subsequently. But there is inordinate delay in filing the complaint, looking into the injuries suffered. It is his further submission that the Motorbike bearing Reg.No.KA-17/W-6482 is not involved in the accident and that there was collusion with the police and therefore, there was delay in filing the complaint. He submits that since there is delay in lodging the complaint and as there is no proper explanation offered for the delay, the Tribunal ought to have dismissed the claim petition.
6. Having heard the learned counsel for the appellant and on perusal of the lower court records the only question which arises for consideration is as to “Whether the Tribunal is justified in holding issue No.1 with regard to occurrence of the accident in the affirmative?”
Anwser to the above question is in the affirmative for the following reason :-
The one and only ground urged by the appellant – Insurance Company is that there is inordinate delay in filing the complaint and no proper explanation is offered for the inordinate delay in filing the complaint or registering the FIR, cannot be the reason to oppose the claim. The delay in filing the complaint or registering the FIR cannot be fatal to the claim petition looking into the surrounding circumstances and the explanation offered by the claimant. Admittedly the accident had taken place on 07.06.2008. Further the learned counsel for the appellant relied upon Ex.P.4 - the seizure mahazar to contend that the mahazar would not indicate from where the vehicle was seized. The spot mahazar and seizure mahazar would come into picture only subsequent to the filing of the complaint or registering the FIR. In the present case, admittedly even though accident had taken place on 07.06.2008, the complaint has been lodged on 2.8.2008 after more than 56 days from the date of accident, the explanation offered by the complainant is that 1st respondent driver had assured that he would settle the claim and had requested not to lodge any complaint. As the 1st respondent driver had failed to settle the claim and even to pay the hospital charges, it became necessary for the claimant to file the complaint on 02.08.2008. It would be necessary to notice that Ex.R2 – the Medico Legal Case report sent to the Inspector of Police, Davangere from the Bapuji Hospital, where the claimant was initially treated, wherein the claimant has stated that immediately on occurrence of accident, he was taken to Bapuji Hospital on 07.06.2008. The Bapuji Hospital has registered a medico legal case on 07.06.2008 and has made entry in the register and has sent the acknowledgement to the Inspector of Police on the same day. RW.1 is the Doctor, who was examined from Bapuji Hospital. In his evidence he has deposed that the claimant was admitted to hospital due to injuries suffered in a road traffic accident. There is no challenge to Ex.R.2 by the Insurance Company. RW.1 in his evidence has also made it clear that medico legal case was registered on the same day and the same was intimated to the police as per Ex.R.2. The discharge summary Ex.P.9 would indicate that the claimant was admitted to City Central Hospital with history of injuries in a road traffic accident. The Bapuji Hospital’s discharge card - Ex.P.8 would also indicate that the claimant has suffered injuries in a road traffic accident involving the motorbike bearing Reg.No.KA-17/W-6482. PW.1 the claimant in his evidence has made it clear that 1st respondent had come to his house and had requested not to file any complaint and had assured them to take care of the hospital charges, when he failed to do so, the claimant was compelled to file the complaint. The said explanation when looked into along with Ex.R2 and medical records, the explanation offered could be accepted and mere delay in filing the FIR and complaint would not be fatal to the claimant. In the peculiar facts of the case the Tribunal on detailed discussion has rightly allowed the claim petition.
7. No ground is made by the Insurance Company to interfere with the impugned judgment and award passed by the Tribunal. Accordingly the appeal is dismissed.
The amount in deposit be transmitted to the concerned Tribunal.
Sd/- JUDGE NG* CT:bms