United India Insurance Co. Ltd. vs Naveen Kumar K.A.

P.D. Waingankar, J.—The appellant-United India Insurance Company Limited has preferred this appeal under Section 173(1) of the M.V. Act against the judgment and award dated 29.06.2011 in MVC No. 4/2011 on the file of Civil Judge (Sr.Dn.) and MACT, Virajpet.

The facts in brief which gave rise to this appeal are as under:

On the intervening night of 18/19.11.2010, respondent No. 1 (hereinafter referred as "claimant") was proceeding in a motorcycle bearing registration No. KA-12-A-682 from Virajpet towards Kedamullur village as a pillion rider. When the motorcycle reached near Gowda Samaj at Baoikeri, the rider of motorcycle was riding motorcycle in a rash and negligent manner. In the process of avoiding a snake on the road the rider lost control over the bike. As a result, both the rider and the pillion rider (claimant) thrown out from the motorcycle. The claimant sustained grievous injuries. He was treated in Government Hospital, Virajpet as inpatient for a period of 10 days. He was also treated in K.V.G. Hospital, Sulia. He spent about Rs. 50,000/- for treatment. Therefore, claiming compensation of Rs. 3,50,000/- he filed claim petition under Section 166 of M.V. Act against rider, owner and insurer of motorcycle.

In response to the notice, rider and owner of the motorcycle appeared and filed their statement of objections wherein they contended that rider of the motorcycle had valid driving licence and the motorcycle was insured by the United India Insurance Company Ltd., As such, both rider and owner of motorcycle have sought for dismissal of claim petition as against them and to direct insurance company to satisfy the award if any passed in favour of claimant.

Appellant-United India Insurance Company Ltd., in their statement of objections have denied that accident was due to rash and negligent riding of motorcycle bearing registration No. KA-12-A-682 apart from contending that rider of the motorcycle had no valid and effective driving licence as on the date of alleged accident. They have denied the alleged accident and the injury said to have been sustained by the claimant, that no criminal case was registered in connection with the alleged accident and just to claim compensation, claimant and rider/owner of the motorcycle colluded with each other and filed claim petition in order to dupe the insurance company. It is also contended that the compensation amount claimed by the claimant is exorbitant and not based on accepted norms. For all these reasons, appellant-insurance company had sought for dismissal of the claim petition.

The claim petition came up for consideration before the Tribunal. In order to establish the claim, claimant himself got examined as PW.1. Exs. P1 to P8 were marked. On behalf of respondents, the copy of driving licence was marked as Ex. R1 and copy of insurance policy marked as Ex. R2. The Tribunal upon hearing the submissions made by learned counsels and upon appreciation of evidence placed on record, by the impugned judgment and award awarded a sum of Rs. 80,600/- as compensation to the claimant together with 6% interest thereon and directed appellant-insurance company to pay compensation awarded within one month from the date of the order.

Aggrieved by the judgment and award passed by the Tribunal, this appeal is preferred by the insurance company. The grounds urged are that the Tribunal committed grave error in registering the claim without production of copy of FIR and wound certificate. It is also contended that the Tribunal committed an error of law and facts in recording a finding that rider of the motorcycle caused accident without going through the contents of Ex. P1-wound certificate and without proper appreciation of evidence. It is further contended that it is a case of collusion between claimant on one hand and rider and owner of the motorcycle on the other hand without there being any accident as alleged by claimant.

I have heard the learned counsel for appellant-insurance company and respondent No. 1-claimant. Perused the records.

Upon hearing both the learned counsel and upon consideration of entire material placed on record, the following points would arise for my determination:

i) Whether the finding recorded by the Tribunal that accident and the injury sustained by the claimant are on account of rash and negligent riding of motorcycle by its rider is proper?

ii) Whether the compensation awarded by the Tribunal is just and reasonable?

The case of the claimant is that while he was proceeding on a motorcycle bearing registration No. KA-12-A-682 as pillion rider on account of rash and negligent riding of the motorcycle, the rider lost control while he was trying to avoid a snake and thereby both rider and pillion rider fell down from the motorcycle and sustained injuries.

On the other hand, it is the case of appellant-insurance company that no such accident as alleged in the claim petition had taken place, nor the claimant sustained injuries in the alleged accident and that owner of the motorcycle is none other than the father of the claimant and taking advantage of injury sustained by the claimant in some other incident the motorcycle has been fixed just to get compensation from the insurance company.

In view of the rival contention taken by both the claimant and insurance company, it is necessary to go through the documents placed on record by the claimant to find out whether the accident had occurred as alleged by the claimant and whether the motorcycle in question was involved in the accident. Admittedly, accident was not reported to the jurisdictional Police Station for the reasons best known to the claimant. But merely because accident was not reported to the police and no crime came to be registered in connection with the accident, it cannot be said that claim petition under Section 166 of MV Act is not maintainable. But the fact remains that immediately after the accident the claimant was taken to Government Hospital, Virajpet as could be seen from Ex. P1 wound certificate. In the wound certificate the history is shown as road traffic accident on 18.11.2010. when it is so it was the duty of concerned doctor to forward a Medico Legal intimation to the jurisdictional Police Station. It appears that doctor failed to do so. It also appears that claimant under the impression that accident must have been reported to the police by the Doctor did not bother to report the accident to the Police. The failure on the part of the medical officer to exercise the basic or primary duty to report the medico-legal case to the police is no circumstance to deny the claim of the claimant if the evidence on record establishes the claim from other acceptable evidence.

Be that as it may, in a decision of this Court reported in Bajaj Allianz General Insurance Company Limited Vs. B.M. Niranjan and Another, , it has been held that non-registration of criminal case regarding the accident-no adverse inference could be drawn that the accident involving the motorcycle in question did not occur.

The Tribunal has to see as to whether the claimant has proved the accident from other evidence placed on record. The claimant who was examined as PW. 1 has reiterated the averments made out by him in the claim petition that accident occurred on account of rash and negligent riding of the motorcycle. The evidence of the claimant is supported by the evidence of PW.2-Razak who is stated to be the eye witness to the accident. The evidence of PW.2-Razak is that claimant was known to him. on 18.11.2010 at about 12.30 a.m. he witnessed accident while he was walking towards Chikpet, Virajpet, that in the said accident claimant who was pillion rider fell down from the motorcycle bearing registration No. KA.12-J-682 on account of rash and negligent riding of the motorcycle by its rider and he sustained injuries. Even in the cross-examination, PW.2 has stated that rider sustained some minor injuries in the said accident and because of urgency without informing the accident to the police he went away. Further, claimant has produced wound certificate marked as Ex. P1 wherein history is shown as road traffic accident. As against evidence of PW. 1 and PW.2 there is no rebuttable evidence. No attempt has been made by the insurance company to examine the rider of the motorcycle. In the absence of rebuttal evidence, the evidence placed on record by the claimant is sufficient to come to the conclusion that claimant sustained injuries in the motor vehicle accident that occurred on 18.11.2010 while he was proceeding as a pillion rider of motorcycle bearing registration No. KA-12-A-682. The Tribunal upon appreciation of evidence has rightly come to the conclusion that accident and resultant injury sustained by the claimant were due to rash and negligent riding of the motorcycle by its rider.

Coming to the quantum of compensation, the Tribunal has awarded a total compensation of Rs. 80,600/- as against Rs. 3,50,000/- claimed by the claimant. It is seen from Ex. P1 wound certificate issued by Government Hospital that claimant sustained lacerated wound over left forehead, bleeding present. He also sustained tenderness over 4, 5, 6th ribs left side apart from blunt injury. X-ray showed fracture of 4, 5, 6th rib left side for which patient was referred to major Hospital. The Doctor issued wound certificate stating that injury No. 1 is simple and Injury No. 2 is grievous in nature. The claimant has produced a medical certificate issued by K.V.G. Medical College Hospital, Sullia as per Ex. P3. From Ex. P3 it appears that the claimant was also treated as out patient for a day on 30.11.2010 in the said hospital and on that day X-ray was also taken as could be seen from Ex. P5 receipts for having paid X-ray charges. Ex. P8 is the X-ray. Except these documents no other documents have been produced by the claimant, nor the claimant examined doctor who treated him. Upon consideration of the aforesaid documents, the Tribunal has rightly awarded a sum of Rs. 10,000/- under the head injury, pain and agony.

By taking into consideration the medical bills and other prescriptions, the Tribunal has awarded a sum of Rs. 3,000/- under the head medical expenses which appears to be just and proper.

Further, the Tribunal by taking monthly income of the claimant as Rs. 3000/- and 10% disability of the whole body awarded a sum of Rs. 57,600/- as compensation under the head loss of future earning on account of disability. The observations made by the Tribunal that the claimant examined doctor who in turn has spoken that the claimant is left with 10% disability to the whole body is not correct. The advocate for the claimant filed evidence said to be that of Doctor-Dr. Srinivasa Moorthy. But in fact it is not evidence by way of affidavit. It is not sworn to by Dr. Srinivasa Moorthy, nor Dr. Srinivasa Moorthy stepped into the witness box. The witness was not at all examined before the Court. Thus the fact remains that the claimant has neither examined doctor nor produced any disability certificate showing therein 10% disability. Even otherwise, the injuries suffered by the claimant were not serious injuries. The claimant suffered fracture of 4th, 5th, 6th ribs of left side. There cannot be any disability in case of fracture of ribs. Even otherwise, there is no evidence regarding disability suffered by the claimant. In that case, question of awarding any amount muchless an amount of Rs. 57,600/- under the head loss of future income on account of disability does not arise. Thus the claimant is entitled for a total compensation of Rs. 13,000/- as against Rs. 80,600/- awarded by the Tribunal. Accordingly, I pass the following:

ORDER

The appeal is partly allowed. The judgment and award dated 29.06.2011 in MVC No. 4/2011 on the file of Civil Judge (Sr.Dn.) and MACT, Virajpet, stands modified awarding a sum of Rs. 13,000/- as compensation together with 6% interest thereon from the date of petition till the date of realisation.

The insurer shall deposit the award amount with interest within two months from the date of receipt of copy of this judgment.

In the event of deposit, entire amount shall be released to the claimant."