IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 19TH DAY OF FEBRUARY, 2019 BEFORE:
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MISCELLANEOUS FIRST APPEAL No.10891 OF 2010 [MV] BETWEEN Smt.Doddathayamma d/o Narasappa aged about 63 years r/o Santhepet Sira Town, Tumkur District. ... Appellant [By Sri Rajanna, Advocate] AND 1. S K Shivakumar s/o late Kenchappa Aged about 28 years r/o Kalidasanagara Sira Town Tumkur District.
2. Tata AIG General Insurance Co., Ltd., No.69, 2nd Floor JP and Devi Jambukeswar Millers Road, Bangalore Rep. by its Manager. ... Respondents [By Sri H S Lingaraj, Advocate for R2, R1 – served) This MFA is filed under Section 173(1) of MV Act against the judgment and award dated 29.7.2010 passed in MVC No.548/2009 on the file of the Senior Civil Judge and Additional MACT, Sira, dismissing the petition for compensation.
This MFA coming on for hearing this day, the Court delivered the following:
JUDGMENT Aggrieved by the judgment and award dated 29.7.2010 passed in MVC No.548/2009 on the file of the Senior Civil Judge and Additional MACT, Sira, thereby dismissing the claim petition filed by the claimant/appellant, the present appeal has been preferred.
2. I have heard the learned counsel appearing on both sides.
3. It is the case of the claimant that on 21.3.2008 at about 8.15 a.m. in front of the house of Vasantha Kumar, Santhepet while she was walking on the side of the road, at that time, a Tata Indica car bearing Regn. No.KA- 06/B-2542 driven by its driver in a rash and negligent manner, dashed against her, as a result of which, she sustained fracture injuries and she was taken to Government Hospital at Sira and then to other hospitals at Tumkur. It is her further case that at the time of accident, she was aged about 62 years and earning a sum of Rs.3,000/- p.m. by doing house hold work. On account of injuries sustained by her, she has spent sufficient amount for medical expenses and she is not in a position to attend regular work as before and she has suffered loss of income due to the accident etc.
4. Before the Tribunal, the injured/claimant got examined herself as PW1 and she got marked Exs.P1 to P13. The claim petition was opposed by the Insurance Company, however, no evidence was led.
5. The Tribunal after considering the evidence and material on record rejected the claim petition on the ground that there is inordinate delay in lodging the complaint regarding the accident and further on the ground that the Medical Officer has not intimated the police on her admission to the hospital. It is also observed by the Tribunal that the age of the claimant was shown as 49 years in some of the documents and in some of the documents, age was shown as 65 years and it was admitted by the claimant in her cross-examination that she was aged more than 75 years.
6. Learned counsel appearing for the appellant would contend that immediately after the accident, she got herself admitted to the hospital and she took treatment as an inpatient for a period of seven days and the hospital records shows that the injuries sustained by her is on account of road traffic accident. He submits that merely because there is delay in lodging the complaint could not be a ground to deny compensation, which she is legally entitled. Therefore, he submits that the judgment and award passed by the Tribunal thereby dismissing the claim petition is not justified and the same has resulted in miscarriage of justice.
7. On the otherhand, learned counsel for respondent No.2/Insurance Company submits that there is inordinate delay of 39 days in lodging the complaint and registration of FIR and there is no acceptable reasons shown for the said delay. He would submit that the Tribunal has rightly dismissed the petition in view of several infirmities in the evidence of the claimant. Therefore, he submits that the appeal be dismissed.
8. According to the appellant, she sustained injuries in a road traffic accident occurred on 21.3.2008 involving a car bearing Regn. No.KA-06/B-2542. Perusal of the wound certificate i.e.; Ex.P6 goes to show that the injured/ appellant, Doddathayamma, was examined by the doctor on 21.3.2008 for certain injuries, which are said to have been caused on account of the road traffic accident. Ex.P9 is the discharge card issued by Aditya Orthopedic and Trauma Center Laboratory, wherein it is stated that the patient by name Doddathayamma was admitted on 25.3.2008 and discharged on 29.3.2008. Ex.P8 – discharge card issued by Kasturba Hospital also goes to show the history as ‘hit by vehicle while walking near residence’. The aforesaid documents go to show that the appellant has sustained fracture of left femur. Even though the appellant has not examined any doctor in order to prove the said documents produced by her, however, it cannot be said that the appellant has not sustained any injuries on account of the accident in question. Merely because there is delay in lodging the complaint, the claim petition could not have been dismissed in the facts and circumstances of this case. The documents on record substantiates the fact that the appellant has sustained injuries in a road traffic accident involving a car bearing Regn. No.KA-06/B-2542, which was insured with the 2nd respondent/Insurance Company. As noted above, the appellant has not examined any doctor, as such, it is just and necessary to award a sum of Rs.25,000/- as global compensation inclusive of interest to the appellant. Accordingly, I pass the following:
ORDER Appeal is allowed in part.
The judgment and award dated 29.7.2010 passed in MVC No.548/2009 on the file of the Senior Civil Judge and Additional MACT, Sira, is set aside.
Appellant is entitled for a global compensation of Rs.25,000/- inclusive of interest.
Respondents are jointly and severally liable to pay the compensation.
Respondent No.2 shall deposit the amount within a period of four weeks from the date of receipt of a copy of this judgment.
Sd/- JUDGE Bkm.