IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR MFA NO. 4147 OF 2016 (MV) BETWEEN M/s ICICI Lombard General Insurance Company Limited Near Saraswathi Talkies Saraswathipuram Mysore – 570001. ... Appellant (By Sri. B.C. Shivanne Gowda for Sri A. M. Venkatesh., Advocate) AND 1. Prakash S/o B. K. Hanumegowda Aged about 34 years R/o B. Kodagahalli village Melukote Hobli Pandavapura Taluk Mandya District-5714017.
2. Venkatesh S/o Manigowda Aged about 45 years R/o Narayanapura Village Pandavapura Taluk Mandya District ... Respondents (By Sri Mahesh. R. Uppin – Advocate for R-1;
Sri H. C. Shivaramu – Advocate for R-2(Absent)) This MFA is filed under Section 173(1) of MV Act against the judgment and award dated 26.03.2016 passed in MVC No. 513/2009 on the file of the Principal Senior Civil Judge and JMFC, Pandavapura, awarding compensation of Rs.2,40,510 with interest at 9% p.a. from the date of petition till the date of deposit.
This MFA coming on for Hearing, this day, the Court delivered the following:
JUDGMENT Heard the learned counsel for the appellant and the learned counsel for Respondent No.1. But there is no representation for Respondent No.2.
2. The insurance company has preferred this appeal praying to set aside the judgment and award dated 26.03.2016 passed by the Prl. Senior Civil Judge & JMFC, Pandavapura in MVC No.513/2009.
3. The factual matrix of the appeal is that on 13.01.2008 when the claimant – Respondent No.1 was proceeding on a motorcycle bearing No.KA-11/R-2919 as a pillion rider on Pandavapura – Nagamangala road, the said motorcycle was being driven by Respondent No.2 herein at a high speed and in a rash and negligent manner and when he neared Banaghatta village, due to excessive speed, the rider of the motorcycle lost control over the same and as a result both the rider and pillion rider fell down and the claimant sustained grievous injuries. Immediately the claimant was admitted to Government Hospital, Pandavapura and later on was shifted to JSS Hospital, Mysuru for further treatment. He had sustained fracture of tibia and fibula and proximal phalanx of 1/3rd and was operated and inserted with plates and screws. It was contended that he spent a lot of money over medical expenses, conveyance and nourishment expenses and on account of the injuries suffered in the accident, the claimant has suffered partial permanent disability. It was further contended that the claimant was an agriculturist and was earning Rs.10,000/- per month and on account of the injuries suffered in the accident, his earning capacity was greatly reduced and hence, he filed a claim petition before the tribunal seeking for compensation.
4. On service of notice, the Insurance Company entered appearance and filed its written statement and contested the claim petition. It was contended that the accident had occurred due to the negligence of the claimant himself. The claimant – Respondent No.1 being a pillion rider on the Hero Honda Passion bearing Reg.No.KA-11-R-2919 at the time of the alleged accident, it was contended that the insured had not paid extra premium to cover the risk of a pillion rider and that the pillion rider does not come within the meaning of ‘third party’ and hence the Insurance Company was not liable to pay any compensation and hence sought for dismissal of the claim petition.
5. The owner of the motorcycle – Respondent No.2 though appeared through an Advocate did not file any written statement. In proof of the claim, the claimant examined himself as PW1, examined the Doctor as PW2 and an eye-witness as PW3 and got marked as many as 85 documents as Exhibits P1 to P85. Further, on behalf of the appellant – Insurance Company, an officer of the company was examined as RW1 and a Doctor was examined as RW2 and two documents were got marked as Exhibits R1 and R2. During the enquiry before the tribunal, the claimant has established the occurrence of the accident, injuries sustained by him, actionable negligence on the part of the rider of the offending bike and its insurance coverage with the appellant.
6. The Tribunal, after evaluation of the oral and documentary evidence has held that the accident had occurred due to rash and negligence of the offending bike. Taking the income of the injured at Rs.6,000/-
p.m. and his age being 27 years, multiplier was adopted at ‘17’ and as per the assessment of the Doctor, 10% was taken as the disability to the whole body to compute the compensation to be awarded. Thus, the Tribunal awarded a total compensation of Rs.2,40,510/- with interest at 9% per annum from the date of petition till the date of realization under the following heads.
Sl. No Headings Amount Rs.
1 Pain, Shock and agony Rs. 40,000/-
2 Medical expenses Rs. 16,110/-
3 Food, diet, Nourishment, Conveyance, and other incidental expenses 4 Loss of income during treatment period 5 Future medical expenses 6 Loss of income due to permanent liability 7 Disappointment and discomfort and loss of amenities Rs. 20,000/-
Rs. 12,000/- Rs. 10,000/- Rs. 1,22,400/- Rs. 20,000/-
TOTAL Rs.2,40,510/-
7. The learned counsel for the appellant – Insurance Company vehemently contended that the Tribunal has not properly appreciated the evidence of RW1 and RW2 and the documents produced and has erroneously held that the appellant / Insurance Company has not led any evidence and proceeded to hold that the claimant has proved the occurrence of the accident and consequent injuries suffered by him and further proceeded to award very high compensation disproportionate to the nature of injuries suffered and consequent disability suffered by him and hence, is liable to be set aside.
8. It is further contended that though the appellant – Insurance Company has examined an officer of the company as RW1 and produced Exhibit R1 Wound Certificate and Exhibit R2 MLC register extract which indicates that the claimant had suffered injuries on account of “alleged history of fall from two wheeler around 5.00 p.m. at Banaghatta, Pandavapura while riding two wheeler and he was conscious.” This fact is further supported by RW2 – Dr. Hemalatha Venkatesh, Casualty Medical Officer of JSS Hospital, Mysuru, who has recorded the statement of the claimant / Respondent No.1 when he was first admitted to the hospital. At that time it has been unambiguously stated that the claimant by himself fell down from the two wheeler while riding the two wheeler. Therefore, the learned counsel contends that the finding of the Tribunal that the claimant had fell down from the motorcycle because of the rash and negligent driving of the motorcycle by its rider, i.e, Respondent No.2 herein, is without any basis and the same is liable to be set aside. Further, even as per Exhibit P83 – case sheet also, it is unambiguously stated therein that the claimant / Respondent No.1 fell down from the two wheeler while riding the two wheeler. That being the case, the Tribunal ought to have held that the claimant was not a pillion rider as contended by him. Moreover, the rider of the motorcycle has also not been examined to prove the same. Without actually going through the records, the Tribunal has blindly stated that the appellant / Insurance Company has not examined anybody and has not produced any documents. Hence, the learned counsel strenuously contends that the claimant had an accidental fall from the motorbike while he was riding and there was no such accident as alleged by the counsel for the claimant.
Learned counsel for the appellant has also placed reliance on a judgment of the Hon’ble Apex Court relating to accidental fall, in the case of NORTH WEST KARNATAKA ROAD TRANSPORT CORPN. Vs. GOURABAI & ORS (CIVIL APPEAL No.3171 OF 2009) in support of his contention. The relevant portion of the said judgment reads as follows:
“… The main contention of the appellant before the MACT as well as before the High Court was that the deceased did not sustain any injury in any accident involving the bus of the corporation. Reference was made to the evidence of the doctor, who had admitted the deceased to the hospital, that the deceased had suffered head injury due to fall from the height of 8 to 10 feet of his own house. Though this was specifically stated in the written statement, the MACT and the High Court brushed aside the same stating that there was indirect admission about the deceased having sustained injury in vehicular accident. The effect of the evidence of the doctor and exhibit R1 does not appear to have been looked into by the MACt and the High Court. MACT did not place reliance on the document R1 on the ground that the brother of the injured stated that he did not know what was written in the document and his signature was taken on one page. This conclusion overlooks from the fact that a doctor will not take a signature on a piece of paper mentioning something which is not correct. Exhibit R1 establishes beyond the shadow of doubt that the injuries sustained were not on account of any vehicular accident. That being so, the MACT and the High Court were not justified in making any award. The order of the MACT and the High Court stands set aside.”
The learned counsel for the Insurance Company contends that the above judgment of the Apex Court squarely applies to the facts of this case and hence, he contends that the judgment of the Tribunal be set aside and the matter be remanded to the Tribunal with a direction to have a re-look into the matter having regard to the above said judgment and also considering the evidence of RW1, RW2 and the documents at Exhibits R1, R2 and Exhibit P83 case sheet.
9. Per contra, the learned counsel appearing for the claimant submitted that the tribunal, on appreciation of the evidence on record has rightly assessed the income of the injured and awarded just and fair compensation, which does not call for interference and prays for dismissal of the appeal.
10. On hearing the learned counsel for the appellant – Insurance Company and on a careful evaluation of the material on record, I find that the Tribunal has not looked into the evidence of RW1, RW2 and has not gone through the relevant Exhibits at R1, R2 and the case sheet Exhibit P83 in a proper perspective. There is serious doubt as regards the aspect whether the claimant was a rider of the two- wheeler or was traveling as a pillion rider itself. Even as per the document produced by the claimant at Exhibit P83 itself, it is revealed that the claimant / Respondent No.1 had fallen down from the two wheeler while riding the two wheeler. Hence, it creates serious doubt as regards his contention that he was traveling as a pillion rider and the pillion rider rode the vehicle in a rash and negligent manner and caused the accident as a result of which the claimant fell down and sustained grievous injuries. Hence, I find that the appeal requires to be allowed. Accordingly, I pass the following:
ORDER The appeal is hereby allowed. The judgment and award passed by the Prl. Senior Civil Judge & JMFC, Pandavapura in MVC No.513/2009 dated 26.03.2016 is hereby set aside. The matter is remanded back to the concerned MACT with a direction to consider the matter afresh by providing opportunity to both the parties to advance their cases, and to dispose of the matter in accordance with law, within a period of six months from the date of receipt of a copy of this order.
The amount in deposit in this appeal is ordered to be returned to the concerned appellant / ICICI Lombard General Insurance Co. Ltd., on proper identification and acknowledgement.
SD/- JUDGE KS