United India Insurance Co. Ltd. vs M.S. Manjunath

B. Manohar, J.—The United India Insurance Company Limited filed, this appeal challenging the legality and correctness of the judgment and award dated 13-08-2013 made in MVC No.329/2011 passed by the Motor Accident Claims Tribunal, Belthangady (hereinafter referred to as �the Tribunal� for short) disputing the occurrence of accident and awarding exorbitant compensation.

The first respondent herein filed a claim petition contending that on 24-08-2009, while he was proceeding in an ambassador car bearing Registration No.KA-19/4788 from Mangalore to Mudigere, along with two other co-passengers, due to the rash and negligent driving o the said ambassador car, it dashed against the rock situated at Charmadi Ghat, 11th Curve, on account of which, left side of the car was damaged and it was toppled. Due to that the claimant and other passengers sustained grievous injuries. Immediately after the accident, the claimant was shifted to Government Hospital Belthangady and after first aid, he was shifted to Father Muller Medical College Hospital, Mangalore. He had taken treatment therein as inpatient from 24-08-2009 to 02-09-2009. Prior to the accident, he was working as an auto driver and earning a sum of Rs. 20,000/- p.m. He was aged about 38 years as on the date of accident. In view of the injuries sustained, he cannot do the work of driver and he spent more than Rs. 60,000/- towards medical expenses, and require another sum of Rs. 40,000/- towards future medical expenditure. Respondents 1 and 2 in the claim petition are the owner and insurer of the offending car and both are jointly and severally to compensate the claimant and sought for compensation of Rs. 4,00,000/-.

In pursuance of the notice issued by the Tribunal, the respondents 1 and 2 entered appearance. The first respondent not filed any statement, of objections. The second respondent/United India Insurance Company filed written statement denying the entire averments made in the claim petition and also disputed the occurrence of accident and injuries sustained by the claimant. The claim petition filed by the claimant itself is not maintainable. The production of copy of the FIR is mandatory under Rule 232(3) of the Motor Vehicle Rules for filing the claim petition. Hence, in collusion with two other passengers and the Inspector of Police, the records have been built up to show that the accident occurred at the 11th Curve of Charmadi. No document been produced to show that he was earning Rs. 20,000/- profit. The insured car was falsely implicated in order to get the compensation. There is inordinate delay in lodging the private complaint before the jurisdictional Civil Court and hence sought for dismissal of the claim petition.

On the basis of pleadings of the parties, the Tribunal framed necessary issues. The claimant in order to prove his case got examined himself as P.W.l and also examined two other co-passengers as P.W.2 and P.W.3. The doctor who treated the claimant was examined as P.W.4 and got marked the documents as Ex.Pl to Ex.P7. On behalf of the respondent-insurance company, the Station House Officer of Belthangady Police Station was examined as R.W.l. The insurance policy of the offending car was marked as Ex.R1.

The Tribunal, after appreciating the oral and documentary evidence let in by the parties and taking into consideration copy of the private complaint, wound certificate and other medical reports held that the accident occurred due to the rash and negligent driving of the driver of the ambassador car and the claimant sustained injuries, hence lie is entitled for compensation. With regard to quantum of compensation is concerned, taking into consideration the injuries sustained and suffering he undergone, and also considering that the doctor who treated the claimant assessed the disability to an extent of 10%, taking the income of the claimant as Rs. 3,500/- p.m., applying the multiplier 15 since he was aged about 38 years at the time of accident, the Tribunal awarded a sum of Rs. 63,000/- towards loss of earning capacity, Rs. 20,000/- towards pain and suffering, Rs. 13,797/- towards medical expenditure; Rs. 1,167/- towards loss of income during the laid up period, Rs. 6,000/- towards conveyance, nourishment and attendant charges. In all, the Tribunal awarded a sum of Rs. 1,03,964/- with interest at the rate of 6% p.a. Since the offending vehicle was covered by the Insurance policy, the liability was fastened on the appellant-Insurance Company to compensate the claimants. The appellant-Insurance Company being aggrieved by the judgment and award fastening the liability on them to compensate the claimant filed this appeal.

Sri. B.C. Seetharama Rao, learned counsel appearing for the appellant contended that the judgment and award passed by the Tribunal is contrary to law and contended that no document been produced to show that the insured vehicle met with an accident on 24-08-2009 at 11th Curve of Charmadi. The claimant in his evidence deposed that the offending vehicle dashed against the road side rock near 11th curve at Charmadi, due to which, the car toppled. However, P.W.2 and P.W.3 have given different version of the accident. For claiming compensation under the Motor Vehicles Act, one of the mandatory requirement is that FIR to be fded. In the instant case, the Police have not filed FIR. No complaint been lodged before the jurisdictional police except lodging private complaint before the jurisdictional Civil Court. There is dispute regarding occurrence of the accident itself. The insured vehicle been falsely implicated in order to get the compensation in collusion with the driver of the offending vehicle and the police. The compensation awarded by the Tribunal is contrary to law. In support of his contention, he relied upon the judgments reported in 2003 (3) KCCR 1762 in the case of Mutteppa Nagappa Karegar v. G.B. Attar and others; AIR 2006 (NOC) 770 (Raj.) in the case of Bhamvar Lal Verma v. Sharad Tholta and others, and another decision in 2001 (2) KCCR 1034 in the case M.R. Vishwanath v. Mrs. Kamalamma and others.

On the other hand, Sri. Prasanna V.R., learned counsel appearing for the first respondent argued in support of the judgment and award passed by the Tribunal and contended that due to the rash and negligent driving of the ambassador car, the accident occurred at 11th Curve of Charmadi. The injured was shifted to Government Hospital at Belthangady and thereafter he was shifted to Father Muller Medical College Hospital at Mangalore. The Father Muller Medical College Hospital authorities had sent MLC report to the Police at Kadri as per Ex.P5. However, the police have not registered any case against the driver of the offending vehicle. In view of that the claimant lodged a private complaint before the jurisdictional Civil Court. The evidence of two witnesses examined in favour of the claimant clearly disclose that ambassador car met with an accident at Charmadi Ghat and the claimant sustained injuries. Though the insurance company had taken several contentions in their statement of objections, they have not stepped into the witness box and proved their contention by leading evidence. The Station House Officer of Belthangady Police Station who was examined as R.W. 1 clearly admitted that Kadri Police had received the MLC report from Father Muller Medical College Hospital, however he not filed any charge sheet and no case been registered in that Police Station. The Tribunal taking into consideration all these aspects of the matter awarded compensation which is in accordance with law. In support of his contention he relied upon the judgment reported in ILR 1996 KAR 161 in the case of Meenakshamma v. Hanumanthappa and an unreported judgment made in MFA No. 1226/2009 disposed off on 11-09-2009 and sought for dismissal of the appeal.

I have carefully considered the arguments addressed by the learned counsel for the parties and perused the judgment and award, oral .and documentary evidence adduced by the parties.

The contention of Sri.B.C.Seetharama Rao, learned counsel appearing for the appellant contended that insured car was falsely implicated in order to get compensation from the insurance company. He further contended that the claimant and other two passengers were traveling in an auto and the said auto met with an accident which was beyond the municipal limits of Belthangady. In order to claim compensation, the insured car was implicated. Further, different version been given by P.W.l to P.W.3 regarding occurrence of the accident. The occurrence of accident itself is in dispute. No complaint been lodged before the jurisdictional Police with regard to occurrence of the accident. Producing the FIR is one of the mandatory requirement under Rule 232(3) of the Motor Vehicle Rules. Though the appellant taken several contentions in the written statement, they have not stepped into the witness box and proved their case by leading evidence, except examining the Station House Officer of Belthangady Police Station.

The records further disclose that while the claimant was proceeding in the Ambassador Car towards Mudigere, it met with an accident at Charmadi Ghat. Immediately after the accident, the claimant was taken to the Government Hospital at Belthangady and thereafter he was shifted to Father Muller Medical College Hospital. The said hospital authorities had sent the MLC report as per Ex.P5 to Kadri Police Station. The sending of MLC report to Kadri Police was admitted by the Station House Officer of Belthangady Police Station. In spite of receipt of MLC report, the police have not taken any steps to register a case. In view of that, after discharge from the hospital, the claimant filed a private complaint before the jurisdictional Civil Court. Hence, there is delay in lodging the complaint. If the Police Officers have not taken any action on the basis of MLC report, the claimant cannot be held responsible for the same. In a judgment reported in 2011 ACJ 1236 in the case of Sansar Chand v. Chander Mohan, it was clearly held that "the First Information Report to the police investigation is not always a condition precedent for awarding the claim. The claim could be awarded if the same is proved by admissible evidence with all probabilities. The claim case or victim could not be left in every case on the mercy of the Police. The Court is empowered to examine and adjudicate the case on the available evidence even in those cases in which, the Police neither registered the offence nor investigate the same. In a vehicular accident, it could not be expected from the victim before taking treatment he will go and lodge the report with the police. In such matter, priority is always given to the treatment." This Court in a judgment reported in ILR 1996 Kar. 161 in the case of Meenakshamma v. Hanumanthappa held that "the failure on the part of the Medical Officer to exercise the basic/preliminary duty to report the lego-medical case to the police is also no circumstance to deny the claim of the claimant if the evidence on record establishes the claim from other acceptable evidence." Some of the judgments relied upon by the appellant-Insurance Company are not applicable to the facts of the present case. The evidence on record clearly disclose that the insured car met with an accident and the claimant sustained injuries. The evidence of P.W.2 and P.W.3 corroborates the evidence of P.W. 1. The appellant-Insurance Company not stepped into the witness box to prove their case by leading evidence. Hence it is not open to them to urge several contentions, which are not been proved by leading evidence. The quantum of compensation awarded by the Tribunal is just and fair compensation. The appellant not made out a case to interfere with the judgment and award passed by the Tribunal. Accordingly, I pass the following:

ORDER

The appeal is dismissed.