DIVISIONAL MANAGER v. INDU SHEKHAR

CORAM: HON'BLE MR. JUSTICE UMESH M ADIGA ORAL JUDGMENT This appeal is filed by the Insurance Company (Respondent No.1) challenging the judgment and award dated 7th September 2011, passed by the XVI Addl.Judge and MACT., Bengaluru (SCCH-14), (for short `Tribunal), in MVC.No.3060/2010.

2. For the sake of convenience, the parties are referred to as per their rankings before the Tribunal.

3. The brief facts of the case of both the parties before the Tribunal were that; - 3 - NC: 2025:KHC:29953 MFA No. 1324 of 2012 HC-KAR On 05.01.2010, at about 8.15 p.m., the claimant riding his motorcycle bearing registration No.KA-02-EP-4012 from Magadi towards Kempasagara, he met with an accident due to rash and negligent riding rider of the motorcycle bearing registration No.KA-04-EY-1305 (offending vehicle). As a result, the claimant sustained grievous injuries. Immediately, he was shifted to Government Hospital, Magadi and thereafter, shifted to Victoria Hospital, Bengaluru, wherein he took treatment as an inpatient. Due to the injuries sustained in the accident, he has suffered permanent disability. With these reasons, he prayed to award compensation of Rs.5 lakhs.

4. The Respondent No.2 is the owner and respondent No.1 is the insurer of the offending vehicle. Respondent No.2 remained ex parte before the Tribunal.

5. Respondent No.1-insurer its written statement denying the contentions of the claim petitioner - 4 - NC: 2025:KHC:29953 MFA No. 1324 of 2012 HC-KAR and denied its liability to pay the compensation and prayed to dismiss the claim petition.

6. From the rival contentions of the parties, the Tribunal framed necessary issues.

7. The claimant to prove his case examined three witnesses as PW-1 to PW-3 and marked 14 documents, as per Exs.P-1 to P-14. Respondent No.1 examined three witnesses as RW-1 to RW-3 and marked documents as Exs.R-1 and R-2.

8. The Tribunal after hearing both parties and appreciation of materials available on record, held that the accident occurred due to rash and negligent riding of the offending motorcycle by its rider. Since the claimant was a Government servant and was working as Junior Assistant, no amount of compensation was awarded under the head `loss of future earning capacity due to disability'. The Tribunal awarded the following amount of compensation : - 5 - NC: 2025:KHC:29953 MFA No. 1324 of 2012 HC-KAR Particulars Amount in Rs. Pain and sufferings Medical expenses 50,000/- 25,000/- Loss of pay during treatment period 21,000/- Food, conveyance and other expenses during treatment period 10,000/- For one more surgery for removal of implants 20,000/- Total 1,16,000/- (sic) The same is challenged by the insurer on the grounds mentioned in the appeal memo.

9. I have heard the arguments of learned counsel for the appellant. In spite of service of notice, there is no representation on behalf of the respondents.

10. Learned counsel for the appellant/insurer argued in line with the grounds of appeal. His main argument is that there was a delay of 15 days in lodging the complaint; The vehicle number was not mentioned before the doctor and only after 15 days, it was disclosed before the police, - 6 - NC: 2025:KHC:29953 MFA No. 1324 of 2012 HC-KAR as such, the conduct of the claimant was not like a prudent person; He did not take treatment in the nearest hospital and on the contrary, he took treatment at Victoria Hospital, Bengaluru; Therefore, this raises doubts about the involvement of the vehicle in the accident in question.

11. The accident was said to have occurred on

05.01.2010. On the same day, he was taken to Victoria Hospital around 10.10 p.m. The said hospital authorities mentioned it as a Medico-legal case. It appears, an intimation was also sent to the concerned police outpost on the very same day, which is noted in Ex.P-6. It appears that the concerned police did not take it seriously and did not record the statement of the victim. In the cross-examination of PW-1, nothing was brought out to show that the said vehicle was falsely implicated in collusion with owner and rider of the offending motorcycle. Mere delay is not a ground to suspect the involvement of the vehicle in the accident in question. Therefore, the contention of the insurer is not tenable. - 7 - NC: 2025:KHC:29953 MFA No. 1324 of 2012 HC-KAR

12. Another serious contention of the appellant is that in Ex.P-6, the vehicle numbers are not mentioned. It is true that vehicle number of both the motorcycles are not mentioned therein. However, it is stated that, the motorcycle of the claimant was hit by another motorcycle. It appears that the victim was taken to the hospital by one of his friends, who might not have been an eyewitness to the incident. As the claimant was in shock and coma due to the injuries sustained in the accident, he could not provide the vehicle number to substantiate the said fact.

13. It is the further contention of the insurer that claimant has not treatment the nearest Government Hospital at Magadi, which is nearer to the spot of the incident. In the affidavit, as well as in the claim petition, the claimant has mentioned that, after the accident, immediately he was taken to Government Hospital at Magadi and from that hospital, he was shifted to Victoria Hospital for further treatment. Ex.P-6 does not refer to any treatment taken and there is no record to - 8 - NC: 2025:KHC:29953 MFA No. 1324 of 2012 HC-KAR show that he had taken treatment in the Government Hospital, Magadi. The claimant considered it appropriate to take treatment at a higher medical centre due to the fractures sustained by him. Therefore, only on that ground, it cannot be suspected that it was a false case or vehicle was falsely implicated in the case. Therefore, the appeal is devoid of merits. There are no reasons to interfere in the findings of the Tribunal.

14. Considering the facts and circumstances of the case, the Tribunal has awarded just and reasonable amount of compensation and it is not challenged in the appeal, however, the same does not call for interference by this Court.

15. For the aforesaid discussions, I proceed to pass the following: ORDER. i) The Appeal is dismissed. ii) The judgment and award dated 7th September 2011, passed - 9 - NC: 2025:KHC:29953 MFA No. 1324 of 2012 HC-KAR MVC.No.3060/2010, by the XVI Addl.Judge and MACT, Bengaluru (SCCH-14), stands confirmed. iii) Whatever amount deposited by the insurer shall be transmitted to the Tribunal for disbursement. Registry is directed to send back the records along with a copy of this judgment to the concerned Tribunal. Sd/- (UMESH M ADIGA) JUDGE bk/ List No.: 1 Sl No.: 11