IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO M.F.A.No.356/2010 C/W M.F.A.No.2013/2010 (MV) IN MFA No.356/2010 BETWEEN:
M SRINIVASA S/O MUDALAIAH AGED ABOUT 36 YEARS OCC-NIL (HE WAS BUILDING CONTRACT ENGINEER) RES; 11, MIS LAYOUT, KENGERI BANGALORE.
…APPELLANT (BY SMT.M C UMADEVAMMA, ADVOCATE) AND:
1. G GOPIKUMAR, AGE:MAJOR, No.537 3RD MAIN, MATHIKERE BANGALORE (CAR OWNER) (THE MANAGER, HDFC CHUBB GEN INSU. CO. LTD. DELETED BEFORE TRIBUNAL AS NOT NECESSARY PARTY).
2. THE MANAGER, ORIENTAL INSURANCE CO, LTD.
D0-7, SHANKAR HOUSE RAJMAHAL VILAS EXTENSION MEKHRI CIRCLE, BANGALORE-80.
...RESPONDENTS (BY SRI M ARUN PONAPPA, ADVOCATE FOR R2 NOTICE TO R1 IS DISPENSED WITH, V/O DTD 02.08.2013) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:01.10.2009 PASSED IN MVC No.5418/2006 ON THE FILE OF 14TH ADDITIONAL JUDGE COURT OF SMALL CAUSES, AND MACT, BANGALORE CITY (SCCH-10), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
IN MFA No.2013/2010 BETWEEN:
ORIENTAL INSURANCE CO. LTD., D.O.7, SHANKAR HOUSE RAJAMAHAL VILAS EXTENSION MEKHRI CIRCLE BANGALORE – 560 080. NOW BY REGIONAL OFFICE LEO SHOPPING COMPLEX 44/45, RESIDENCY ROAD BANGALORE – 560 025.
(REPRESENTED BY ITS DEPUTY MANAGER SMT.SUDHA GANESH) ...APPELLANT (BY SRI M ARUN PONAPPA, ADVOCATE) AND:
1. SHRI M SRINIVAS, AGED MAJOR S/O MUDALAIAH R/O No.11, MIS LAYOUT KENGERI, BANGALORE.
2. SRI G GOPIKUMAR, MAJOR, No.537 3RD MAIN, MATHIKERE BANGALORE.
…RESPONDENTS (BY SMT.M C UMADEVAMMA, ADVOCATE FOR R1 R2 IS SERVED) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:01.10.2009 PASSED IN MVC No.5418/2006 ON THE FILE OF THE 14TH ADDITIONAL JUDGE, COURT OF SMALL CAUSES AND MEMBER, MACT, BANGALORE (SCCH-10), AWARDING A COMPENSATION OF Rs.1,07,600/- WITH INTEREST AT 8% P.A. FROM THE DATE OF PETITION TILL DEPOSIT AND TO SET ASIDE THE SAME.
THESE MFAs COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT These two appeals are directed against the judgment and award dated 01-10-2009 passed in MVC No.5418/2006 by the 14th Additional Judge, Court of Small Causes and Member, MACT, Bangalore City, SCCH 10, wherein the learned member partly allowed the claim petition and granted the compensation of Rs.1,07,600/- together with interest at 8% p.a. from the date of petition till its deposit and directed the Insurance Company to deposit the same.
2. The same is challenged under these appeals both by the petitioner and by the Insurance Company. MFA No.356/2010 is filed by the petitioner seeking enhancement of compensation and MFA No.2013/2010 is filed by the Insurance Company seeking to set aside the same.
3. In order to avoid confusion and overlapping, parties hereinafter are referred to with reference to their rankings as it stood before the Tribunal.
4. Proceedings came to be initiated before the Tribunal in MVC No.5418/2006 because of a road traffic accident stated to have occurred on 13.8.2006 at about 11.15 a.m. at Jnana bharathi Circle on Mysore Road, Bangalore, when the petitioner was going on a motor cycle at that time, the car bearing Registration No.KA.04.MC.3256 was driven in a rash and negligent manner and dashed against the petitioner’s motor cycle and thereby caused accident and inflicted injuries, including fractures and other grievous injuries. Petitioner states that he incurred medical expenses and sustained other related losses and sought for compensation of Rs.10,00,000/-.
5. Respondent Nos.1 to 3 resisted the claim of the petitioner. 1st respondent contended that he is the owner of the car bearing No.KA.04.MC.3256 and it was insured with Oriental Insurance Company Limited and also denied the involvement of the said vehicle and etc. R2 was deleted. Respondent No.3 denied that accident occurred due to fault of driver of the offending car and its liability is subject to validity of vehicle documents, driving licence etc.
6. The learned member was accommodated with the oral evidence of PWs1 and 2, RWs 1 and 2 and documentary evidence of Ex.P1 to P6 and Ex.R1 to R6. The learned member examined the matter on the aspects of accident, involvement of the vehicle and partly allowed the claim petition and granted the compensation as mentioned above. The same is challenged in these appeals both by the petitioner and by the Insurance Company.
7. Sri. M. Arun Ponappa, learned counsel for Insurance Company would submit that the vehicle was never involved in the accident. This has been specifically and in clear terms demonstrated before the Tribunal by the owner of the car bearing Registration No.KA.04.MC.3256. Further, the owner has entered the witness box and stated on oath that his vehicle was not involved in the accident. Regard being had to the fact that, it is the claim of the injured petitioner that it was the vehicle of the respondent No.1 i.e. car bearing Registration No.KA.01.MC.3256 that was negligent and inflicted injuries. The learned counsel for the Insurance Company would submit that when there is no negligence on the part of the owner of the car which can be understood by the report which the police have filed the report what is stated to be ‘C’ report.
8. However, Smt.M.C.Umadevamma, learned counsel for petitioners submits that it was a case of negligence by the driver of the car owned by the 1st respondent before the Tribunal and insured with the Insurance Company. Thus, the bone of contention between the parties is the liability.
9. In this regard, learned counsel for the Insurance Company submits that in the absence of a final report naming the driver of the car as accused, there is no question of negligence and the question of considering negligence does not arise in the absence of involvement of the car.
10. ‘Negligence’ is a breach of legal duty to take care of one self and others. It is a state of inabilities and reckless attitude and irresponsible behaviour. Every person is supposed to conduct himself in a particular manner depending upon the circumstances. More particularly, when the interest or the lives of others are involved. This applies heavily in case of road traffic accidents it may be objective or subjective, active or passive or being reckless.
11. The assessment of negligence when it is culpable has to be made from an independent angle. Thus, either claimant or the accused are not having over riding power to say their particular version is negligence it cannot happen. At the same time, it is to be seen that FIR was registered against the driver of the car. In this Connection, Section 154 of the Code of Criminal Procedures provides for registration of a criminal case on the basis of first information regarding the commission of offence whether the accused is identified or not. Further, the final report is submitted under Section 173 of Cr.P.C. wherein, the Investigating Officer is supposed to look into the circumstances of the case to the best of his ability without bias and collect all the evidence, record the statements of the persons who are acquainted with the incident and then the final report should be filed. In case whether the offence is proved or not, the report will be called as final report within the meaning of Section 173 of Cr.P.C. It may be called as final report proving A, B and C reports have come in to use because of convention. They do not find place in Code of Criminal Procedure. However, when the final report on the completion of investigation if the offence is not proved then such report is filed. Further, it is not the end of the road. The final report which is also called as chargesheet when filed before the concerned court of jurisdiction then the case under Section 190 Cr.P.C. whether to proceed to take cognizance or not basing on the papers available irrespective of the conclusion of the Investigating Officer. Further, the mode of investigation is supposed to be fair, transparent and believable. In this case, learned counsel Sri. Arun Ponappa for Insurance Company drew my attention to the documents marked as Ex.R5- ‘C’ report. ‘C’ report is worded in Kannada language. As I am conversant with Kannada Language, I reproduce the English version of the same which is as under:
“It is stated that after collecting the address of the accused and the registered owner, the police went to the residence of the registered owner and found the vehicle was stationed in his house and they stated that on the date of the accident, the vehicle was not removed.
Complainant was brought to identify the same and he has stated that vehicle was not the one that met with the accident.”
12. It is to be seen that owner according to the endorsement of the Insurance Company has stated that the vehicle was not removed outside the house on the date of the accident and the next version is, ‘the complainant was summoned and he said that the vehicle belonging to first respondent Gopikumar was not the one involved in the accident.’ 13. PW1 is the complainant who is none other than the petitioner herein. He has filed sworn affidavit in lieu of Chief examination and has been cross examined. The statement of PW1 was recorded in the hospital by police constable, wherein he has stated that when he was going on motor cycle bearing registration No.KA.05.EN. 8887, driver of a motor car bearing Registration No.KA.04.MC.3256 came and dashed against the motor cycle living him with injuries. It is necessary to point out that FIR is registered on the strength of the information. But the complainant has specifically stated the registration number of the vehicle and time of accident was 11.45 on 13.8.2006.
14. RW1 Gopikumar is the owner of the vehicle.
In his cross examination he has spoken that whether the number plate is fallen or police have recovered the same. He does not know that the driver of the Santro car caused the accident and went away without stopping. When such being the circumstances, he admits a suggestion that police showed the number plate to him in the police station. In the light of the said admission, among the aforesaid factors the version stating the vehicle was not involved cannot be believed. Hence, I hold in the total circumstance, the vehicle involved is the motor car bearing Registration No. KA.04.MC.3256 and there is no doubt in it. Further, issuance of Insurance policy is admitted and liability invariably will have to be saddled on the Insurance Company and accordingly, it is done.
15. Insofar as compensation is concerned, the injuries sustained by the petitioner as per Ex.P2 are as under:
Injuries:
1. Talo fibular ligament tear of right ankle;
2. Rotator cuff injury over right shoulder and 3. Contusion injury over right heel As per the wound certificate, injuries 1 and 2 are grievous injuries and injury no.3 is simple in nature.
The Doctor has assessed the permanent physical disability to right lower limb at 30% and 15% to whole body and the Tribunal has taken it at 10% disability.
16. The learned Member considering the nature of injuries sustained by the petitioner and the percentage of disability, has awarded the compensation of Rs.57,600/- towards loss of future income due to disability; Rs.20,000/- towards pain and suffering; Rs.10,000/- towards loss of amenities; Rs.5,000/-
towards medical expenses; Rs.5,000/- towards traveling and other sundry expenses. The same are just and proper and maintained accordingly. However, I do not recognize the compensation of Rs.10,000/- awarded under the head ‘ loss of expectation of life’ and accordingly, it is deleted. However, for future medical expenses, it is just and proper to grant Rs.5,000/- and accordingly, it is done.
17. Thus, petitioner is entitled for a total compensation of Rs.1,02,600/- instead of Rs.1,07,600/- which goes lesser by Rs.5,000/- with interest at 6% p.a. from the date of petition till deposit instead of 8% p.a. awarded by the Tribunal.
In the result, appeal filed by the petitioner in MFA NO.356/2010 is rejected and appeal filed by the Insurance Company in MFA No.2013/2010 is partly allowed.
18. The judgment and award dated 1.10.2009 passed in MVC No. 5418/2006 by the Tribunal is modified by awarding compensation of Rs.1,02,600/- as against Rs.1,07,600/- (there would be a reduction of Rs.5,000/-) with interest at 6% p.a. from the date of petition till its deposit.
The Insurance Company is directed to deposit the compensation amount with interest within four weeks from date of receipt of a copy of this order.
Amount deposited in MFA No.2013/2010 shall be transmitted to the jurisdictional Tribunal forthwith.
tsn* Sd/- JUDGE