M.F.A. No.20929 of 2011,M.F.A. No. 21251 of 2011

10th August, 2017.

Petitioner Counsel: Sri. SANJAY S. KATAGERI
Respondent Counsel: Sri. R.R. MANE

Cases Cited:
North West Karnataka Road Transport Corp. Vs. Gourabai and Ors., MANU/SC/1098/2009 [Para 19]
The Oriental Insurance Co. Ltd., Vs. Zaharulnisha and others, 2008(4) ALL MR 413 (S.C.)=2008 ACJ 1928 [Para 22,23]
M/s. United Indian Insurance Company Ltd., Vs. Shri. R. S. Shivarammayya and Another, 2011 Kant. M.A.C. 632(Kant.) [Para 22,23]
National Insurance Co. Ltd., Vs. Parvathneni and Another and another, 2010 ALL SCR 172=2009(4) T.A.C. 382(S.C.) [Para 24]
The Oriental Insurance Co. Ltd. Vs. K. Shivarao and another, 2010 Kant M.A.C. 346 (Kant) [Para 24]

JUDGMENT

JUDGMENT :- Both these appeals have been filed under Section 173(1) of the Motor Vehicles Act, 1988, assailing the judgment and award passed by the Presiding Officer, Fast Track Court IV and MACT, Belagavi (henceforth referred to as 'the Tribunal', for brevity) in MVC No.1654/2009. MFA No.20929/2011 is filed by the claimants seeking enhancement of compensation, whereas the other MFA No.21251/2011 is filed by the Insurance Company, which was the 2nd respondent in the Tribunal below, seeking setting aside of the judgment and award under appeal.

2. Since both these appeals have arisen out of a single judgment and award, both these matters are treated as connected matters and a common argument was heard and taken up for passing a common judgment.

3. For the sake of convenience, the parties would be referred to with the ranks they were holding respectively in the Tribunal below.

4. In MFA 20929/2011, the appellant/claimant has stated that the Tribunal below has committed an error in not considering the permanent physical disability he has sustained, as such, the compensation awarded by the Tribunal below is on the lower side. Further, stating that the compensation awarded under other heads are also meager, the claimant has sought for enhancement of the compensation.

5. In MFA No.21251/2011, the appellant/Insurance Company, which was the 2nd respondent in the Tribunal below, has taken a contention that the motorcycle bearing registration No.KA-23/W-3309, the particulars of which vehicle is mentioned in the Registration Certificate at Ex.R2, was not the vehicle insured as on the date of accident. As such, the vehicle involved in the accident and the one covered under the policy were two different vehicles. It is further contended that the documents clearly show that the accident has not occurred in the manner agitated by the claimant in his claim petition, but the claimant himself was riding the motorcycle and fell down due to skid, as such, the occurrence of the accident at the alleged rash and negligent riding of the motorcycle by a different rider is not the fact. According to the appellant/Insurance Company, the said point is further corroborated by the fact of delay in lodging the complaint before the police. It is further contended in the said appeal by the insurer that the alleged rider of the motorcycle had no driving licence to drive the motorcycle. With these, the Insurance Company has prayed to allow its appeal by setting aside the judgment and award under appeal.

6. The records of the Tribunal below were called for and the same are placed before this Court.

7. Heard the arguments from both sides. The learned counsels for the claimant and the Insurance Company reiterated the contentions taken up in their memorandum of appeals, respectively even in their arguments also.

8. In the light of the above, the points that arise for my consideration are:

i. Whether the claimant has made out grounds for enhancement of compensation?

ii. Whether the finding of the Tribunal below holding the insurer also as liable to pay compensation is erroneous?

9. The claim petition was filed by one Smt. Yallawwa Shivappa Sajalli in the Tribunal below under Section 166 of the Motor Vehicles Act, 1988, in her capacity as a natural mother-cum-minor guardian of the alleged injured claimant Yallappa Shivappa Sajali, who was shown to be of the age 17 years as on the date of filing the claim petition.

10. The summary of the case of the claimant in the Tribunal below was that, on the date 28.07.2009 at about 14.00 hours, the claimant Yallappa Sajali, while coming on a service road near Benkanhalli village, a motorcycle bearing registration No.KA-23/W-3309 coming from Benkanhalli village in a rash and negligent manner and in a high speed, dashed to the claimant causing the accident. Due to the said accident, the claimant Yallappa sustained grievous injuries and took medical treatment for a considerable period. It is the further case of the claimant that, prior to the accident the claimant was doing coolie work and was earning a sum of '2,500/- per month, but due to the injuries suffered by him in the accident, he became permanently physically disabled and as such, he is not in a position to do any work and lost his working capacity. With this, the claimant claimed the compensation of '5,00,000/- arraying respondents 1 and 2, holding them as owner and insurer of the alleged offending vehicle and liable to pay him the compensation. Respondent No.1 in the Tribunal below remained ex-parte, however respondent No.2/Insurance Company, after entering its appearance filed its written statement, wherein it denied the manner of occurrence of the alleged accident as depicted by the claimant in his claim petition. It also denied that the alleged rider of the motorcycle had a valid driving licence to ride the motorcycle.

11. Based upon the pleadings of the parties, the Tribunal below framed the following issues:

i. Whether petitioner proves the accident occurred on 28-07-2009 at 14-00 hours near Benkanahalli due to rash and negligent driving of motor vehicle KA-23/W-3309 Motor Cycle?

ii. Whether petitioner proves the bodily injuries sustained in the said accident?

iii. Whether R-2 insurer proves that accident took place due to the negligence of petitioner himself?

iv. Whether R-2 insurer proves that rider of the motor cycle KA-23/W-3309 was not holding effective D.L. at the relevant time?

v. Whether R-2 insurer proves the collusion between petitioner and R-1 owner in filing the petitioner?

vi. Whether petitioner is entitled for compensation? If so what is the quantum and from whom recoverable?

vii. To what order or decree?

The Tribunal below answered issues No. 1, 2 and 6 in the affirmative and issues No.3, 4 and 5 in the negative. For answering those issues, the Tribunal below relied upon the evidence of PWs.1 and 2 and the documents produced and marked by the claimant as Exs.P1 to P14 and the documents produced by the Insurance Company/respondent No.2 therein as Exs.R1 to R3.

12. MFA No.20929/2011 is claimant's appeal, as such, his only contention is regarding the enhancement of compensation. MFA 21251/2011, though is by the Insurance Company, but it has not denied or disputed the occurrence of the accident on the date, time and place shown in the claim petition. However, its contention is regarding the manner of occurrence of accident.

13. The claimant in order to prove his case in the Tribunal below got examined his mother and natural guardian Smt.Yallawwa as PW1 and also got examined one Dr.S. R. Angadi as PW2 and through them got marked documents at Exs. P1 to P14. No witness was examined from the respondent's side, however, by consent, a copy of Driving Licence particulars said to be of one Maruti Yallappa Ghasti was marked as Ex.R1, Registration Certificate copy of the alleged offending vehicle was marked as Ex.R2 and copy of the Insurance Policy of the alleged offending vehicle for the period from 27.10.2008 to 26.10.2009 was marked as Ex.P3.

14. Regarding the first contention of the Insurance Company that the vehicle under insurance was not the vehicle involved in the accident is concerned, the said contention of the respondent Insurance Company solely based upon the alleged chassis and engine number shown in the policy with that of R.C. book at Ex.R2. However, the renewal of the very same policy with the same earlier number for the subsequent year shows the registration number of the vehicle, which undisputedly is the registration number of the alleged offending vehicle. This clarifies that the said policy has been issued exclusively for that particular vehicle bearing registration No.KA- 23/W-3309 which is the alleged offending vehicle in the instant case. As such, the first contention of the learned counsel for the Insurance Company that the said alleged motorcycle was different from the insured vehicle is not acceptable.

15. The second contention of the appellant/Insurance Company in MFA No.21251/2011 is that, the accident has not occurred in the manner as depicted by the claimant in the Tribunal below. According to the claimant, the alleged motorcycle bearing registration No.KA-23/W-3309 coming from Benkanhalli village in a rash and negligent manner dashed to him while he was walking on the service road in that place. The learned counsel for the appellant drawing the attention of the Court to the wound certificate at Ex.P4 stated that, in the said wound certificate it is clearly recorded that the patient was going on a two wheeler, which got skid and the rider fell down. Referring to this, the learned counsel contended that the claimant was riding the motorcycle himself and fell down due to skid of the vehicle as per the information given to the doctor at the earliest point of time. However, in order to claim compensation, the claimant in collusion with the respondent No.1, who was his relative, lodged a false complaint belatedly with the police and giving a twist to the incident stating that the claimant was a pedestrian and the motorcycle dashed to him.

The learned counsel for the claimant in his argument submitted that the contention and argument of the appellant regarding the manner of occurrence of accident is unfounded one, since they have not established their contention. He further submitted that, after due investigation, the police have filed charge sheet against the accused rider of the motorcycle for the offences punishable under Sections 279 and 338 of the IPC. As such, the manner of occurrence of the accident has stood proved.

16. It is not in dispute that the accident in question has taken place on the date 28.07.2009 and that the complaint before the police with respect to the said accident was lodged only on 01.08.2009 i.e., with the delay of about 4 days. Merely because there is some delay in lodging the complaint, it cannot be concluded in a compensation claim matter like the present one that the complaint is fictitious and filled with false information. The person who denies the manner of accident in a particular way is required to substantiate his contention with satisfactory evidence.

17. No doubt in Ex.P4, which is the wound certificate, it has been recorded that the patient was brought with the history of Road Traffic Accident at 2.00 pm on 28.07.2009 in Benkanhalli, Hukkeri Taluk and the patient was going in a two wheeler which skid and fell down. By a perusal of the said certificate, it cannot be inferred as to at whose instance or the source the said observation has been recorded in the said document. It cannot be inferred that the alleged history of Road Traffic Accident was given by none else than the injured himself, for the reason that the injured was shown to have been accompanied by one Mr. Ashok Balappa Naik. Thus, when there are more than one person before the doctor at the time of examination of the patient, it is not known at whose instructions or information, the said history of alleged accident has been recorded.

18. Secondly, merely because the alleged history of accident is recorded in a wound certificate, the said alleged history cannot be taken as the proven fact regarding the manner of occurrence of accident. It is also for the reason that, even according to the evidentiary value of the content of the said document, the stray narration regarding the occurrence of the accident is only a say of a person before the doctor, but not confirmation by anybody including the doctor. As such, it is shown in the said certificate itself that it was 'alleged' before the doctor. That being the case, when stray allegation recorded in the wound certificate is shown to be not correct by virtue of the investigation conducted in a criminal case pertaining to the very said Road Traffic Accident, then it would be incumbent upon a person relying upon the said alleged history, as recorded in Ex.P4, to summon the doctor who has recorded the said alleged history and elicit more details from him regarding source and reliability of the information given to him. At the same time, it is also necessary on the part of the person relying upon the version recorded in the said wound certificate to summon and examine the Investigating Officer, who has conducted investigation and filed charge sheet on a different contest holding that guilty person was a different person other than the injured himself. At least, the Insurance Company in the instant case would have examined any of the eyewitnesses to the incident, provided there was any, in the case. Apart from not doing any of these exercises, in order to substantiate its case, the Insurance Company also omitted to examine any of its witnesses, who could present the contents of Ex.P4 in a suitable manner according to them and to substantiate it.

19. The learned counsel for the Insurance Company in his argument relied upon a judgment of the Hon'ble Supreme Court in North West Karnataka Road Transport Corp. Vs. Gourabai and Ors. reported in MANU/SC/1098/2009, wherein with respect to the claim petition under Sections 166 and 168 of the Motor Vehicles Act, 1988, the Hon'ble Apex Court observed that, brushing aside of the evidence of the doctor that deceased suffered head injury due to fall from height of 8 to 10 ft. of his own house, by MACT and High Court was erroneous. It is submitted that in the said case before the Hon'ble Supreme Court, the evidence of the doctor was available, who had admitted the deceased to the hospital. It is with respect to the evidentiary value of the said doctor and the appreciation of the evidence of the doctor, the Hon'ble Supreme Court observed that the MACT and High Court have committed error, whereas in the case on hand, the author or Ex.P4, who is said to be the doctor, who examined the injured at the first instance has not at all been examined by either of the parties. As already observed, had the contention of the Insurance Company being that the history of accident as recorded in Ex.P4 was the true history, which incidentally was contrary to the contention of the claimant, then it was incumbent upon the insurer to summon the author of the said document and to examine him. The Insurance Company neither examined the said doctor nor confronted Ex.P4 to PW1 in her cross-examination.

20. It also cannot be ignored that in the instant case, the injured claimant who is said to be a minor in age, was not examined by either of the parties. It is not necessary that a minor injured shall be examined in all cases. However, in a case like the one on hand, where one of the respondents had taken a specific contention regarding the manner of occurrence of accident, nothing had prevented the said respondent to summon any of the eyewitnesses to the alleged accident including the claimant himself. This effort also the respondent - Insurance Company has not done in the instant case.

21. As such, merely because in a medical wound certificate, the purpose of which certificate is to speak about the nature of injuries, but not necessarily the manner of occurrence of accident, the other party cannot solely bank upon and contend that an observation made in that document itself is a complete and absolute truth. For these reasons and also for the reason that the evidence of PW1 corroborated by the documents at Exs.P1, P2, P3, P4, P5, P6 and P7, go to establish that the manner of occurrence of accident was the rash and negligent riding of the motorcycle by its rider and dashing of the said vehicle to the claimant Yallappa, the argument of learned counsel for the Insurance Company is not acceptable.

22. The third contention of the respondent Insurance Company is that, the alleged rider of the motorcycle did not possess a valid driving licence to ride motorcycle as at the time of accident, as such there is violation of conditions of policy, due to which the Insurance Company is not liable to compensate the claimant. In his support, the learned counsel for the respondent/Insurance Company relied upon few decisions.

The first decision relied upon by the learned counsel for the Insurance Company is of The Oriental Insurance Co. Ltd., Vs. Zaharulnisha and others reported in 2008 ACJ 1928 : [2008(4) ALL MR 413 (S.C.)]. In the said case, the Hon'ble Supreme Court, while dealing with an appeal arising out of Section 149(2) (a) (ii) of Motor Vehicles Act, 1988, where the dispute was with respect to possessing of the driving licence and the liability of the Insurance Company, was pleased to observe that, in the case before it, the driver had licence to drive heavy motor vehicle, but he was driving two wheeler scooter at the time of accident. It was observed that it cannot be taken that the driver had valid and effective driving licence, as such, held the Insurance Company was not liable to pay the compensation.

Secondly, the learned counsel for the Insurance Company relied upon a decision in the case of M/s. United Indian Insurance Company Ltd., Vs. Shri. R. S. Shivarammayya and Another reported in 2011 Kant. M.A.C. 632(Kant.), wherein a full bench of this Court with respect to the liability of Insurance Company to pay compensation in a case where it was alleged that the driver had a driving licence of a different class of vehicle than the one involved in the accident, was pleased to observe that, where the driving licence of a driver is found to have been issued to drive a particular class of vehicle, but the driver was found to be driving another class of vehicle, if that conflicts with the nature of vehicle, then one has to conclude that the driver was not duly authorized to drive that particular class of vehicle.

Relying upon these two citations, learned counsel for the insurer submitted that in the Shivarammayya's case (supra) also, the rider of the offending vehicle, which was a motorcycle, was not possessing a driving licence to drive motorcycle, but he had licence to drive only a light motor vehicle.

23. The learned counsel for the appellant/Insurance Company further submitted that in the instant case, an endorsement issued by the Regional Transport Officer, Chikkodi showing particulars of the driving licence of the rider/accused is marked as Ex.R1 by consent. The said document shows that the accused was licensed to drive only light motor vehicle, which was the offending vehicle in the instant case.

Ex.R1, which is an endorsement shown to have been issued by the Regional Transport Officer, Chikkodi, no doubt gives details of the driving licence No.2216/08-09. It is further shown in the said document that the name of the licensee is Sri. Maruti Y. Ghasti, R/o. Benkanhalli and the type of vehicle licensed to drive is shown as Light Motor Vehicle (NT) only. No doubt, the said document shows that the licensee named therein is licensed to drive only light motor vehicle, as such the said licence cannot be taken as a licence to ride a motorcycle/two wheeler also. But the point to be considered here is whether the said document at Ex.R1 can be taken as that of the accused in the related criminal case and also that, except the licence as shown in Ex.R1, the accused did not possess a separate or any other licence or endorsement to ride the motorcycle also.

In this regard, it cannot be ignored that except getting Ex.R1 marked as a consent document, the Insurance Company which has produced the said document has put no efforts to prove the contents of the document or to confront this document to the witness on the claimant's side or at least to establish their contention that the document at Ex.R1 pertains to none else than the alleged rider of the motorcycle in the case on hand. It is for the reason that merely because a document is shown to have been marked 'by consent' in the order sheet, by that itself it cannot be taken that the contents of the said document stands proved in its entirety and also that the name shown in the said document is of none else than the accused in the criminal case pertaining to the accident. To establish a nexus between the person named in Ex.R1 and the alleged rider of the motorcycle in the instant case, who incidentally was the accused in the criminal case as per Ex.P7, the Insurance Company should have put some effort, which it did not do. It did not even put a suggestion to PW1 to the effect that the document at Ex.R1 pertains to the alleged rider of the motorcycle as at the time of accident. Without doing any such minimum required effort, the Insurance Company now cannot say that Ex.R1 since bears the name of the licensee of the driving licence which is identical to that of named accused at Ex.P7, both are one and the very same persons. This inference throws further strength for the reason that the police who have conducted and completed investigation in the criminal case pertaining to the accident in question have accused the rider of the motorcycle only for the offence punishable under Sections 279 and 338 of the IPC. Had the rider/driver of the offending vehicle did not possess a valid driving licence, necessarily he must be have been accused under Section 3 R/w. Section 181 of the Motor Vehicles Act, 1988 in the charge sheet. But in the instant case, since the respondent Insurance Company is trying to prove that the document being produced by it through Ex.R1 establishes that the rider of the offending motorcycle did not possess a valid driving licence, the non-observation of the said aspect, if so, by the Investigating Officer while filing the charge sheet, acquires importance. For this reason, even though Ex.R1 speaks about the driving licence to drive only a light motor vehicle, but in the absence of any satisfactory evidence or proof to establish that the said Ex.R1 pertains to none else than the accused rider and that except Ex.R1 there is nothing to show that he had a valid driving licence, the contention of the Insurance Company that the rider of the motorcycle did not possess a valid driving licence to ride the motorcycle cannot be accepted. In view of the said observation, the decision relied upon by the learned counsel for the Insurance Company in Zaharulnisha [2008(4) ALL MR 413 (S.C.)] (supra) and Shivarammayya (supra) would not enure to the benefit of the Insurance Company.

24. Though the learned counsel for the Insurance Company also relied upon two decisions, one reported in 2009(4) T.A.C. 382(S.C.) : [2010 ALL SCR 172] in the case of National Insurance Co. Ltd., Vs. Parvathneni and Another and another reported in 2010 Kant M.A.C. 346 (Kant) in the case of The Oriental Insurance Co. Ltd., Vs. K. Shivarao and another, since those judgments deal with the concept of pay and recovery principles, the same are also not helpful to the Insurance Company herein as its liability as an insurer of the offending vehicle now has been crystallized.

25. In view of the above discussion, the only point that remains to be considered is regarding the reasonableness of the quantum of compensation awarded in the instant case.

26. According to the claimant/appellant in MVC No.20929/2011, the quantum of compensation awarded by the Tribunal below is a meager amount. The Tribunal below has awarded the compensation as shown below:

Towards Pain and Suffering	'20,000/-
Towards Loss of amenities and comforts in life	'20,000/-
Towards Special diet, conveyance and incidental charges	'10,000/-
Towards Medical expenses	'5,000/-
Towards Disability	'10,000/-
Total	'65,000/-

27. The wound certificate at Ex.P4 read with evidence of PW1 and also the discharge card at Ex.P8 go to show that, in the accident the claimant had sustained fracture of distal end of right radius bone of the right forearm and external injury in the form of contusion. Taking note of the same, the Tribunal below has awarded compensation of '20,000/- towards 'pain and suffering'. Considering the age of the injured, who was said to be of 16 years as at the time of accident, it has also awarded a compensation of '20,000/- towards 'loss of amenities' and '10,000/- towards 'special diet, conveyance and incidental charges'. I am of the view that, in the circumstance of the case the said compensation awarded by the Tribunal below cannot be considered as an amount lesser than the reasonable.

Towards 'medical expenses', even though the claimant could not produce any details or receipts amounting to '5,000/-, but the only document in the form of a bill produced by him at Ex.P11 being a receipt for a sum of '200/-, still the Tribunal below has awarded a compensation of a sum of '5,000/- towards medical expenses. Thus, I do not propose to enhance the same.

Towards 'disability', the Tribunal below has awarded the compensation of a sum of '10,000/-. However, while arriving at such a figure, the Tribunal below except stating that the claimant has examined one Dr.S.R.Angadi as PW2, has not given any specific reasons on the point. But making an observation that the injured was a minor and the alleged injury would not come in the said injured discharging his normal work in future also, has recorded that it does not affect his future earning capacity. Though the evidence of PW2 that the injured was suffering with a disability, which according to him is 20% to the right wrist joint and the disability certificate issued by him at Ex.P13 cannot be totally ignored. By the evidence of the said doctor, it can only be inferred that the injury sustained by the claimant in the accident in question has put the injured to some inconvenience permanently in doing his work. As such, the quantum of compensation awarded towards 'disability' deserves to be marginally enhanced. Thus, I am of the view that in the facts and circumstances of the case, enhancement of compensation under the said head by a sum of '20,000/- would be reasonable.

28. Barring this, the claimant has not made out any other grounds to enhance compensation. Accordingly I proceed to pass the following order:

ORDER

MFA No.20929/2011 is allowed in part. The judgment and award dated 02.11.2010 passed by the Fast Track Court-IV and MACT, Belgaum in MVC No.1654/2009 is modified to the extent that the total compensation of a sum of '65,000/- awarded by the Tribunal below is enhanced by a sum of '20,000/- making the total compensation at '85,000/- (Rupees Eighty Five Thousand Only). The other terms of the judgment and award under appeal with respect to fixation of liability upon the respondents to pay compensation together with interest on the awarded amount and the terms regarding release of the awarded amount to the claimant, shall remain unaltered.

MFA No.21251/2011 is dismissed. No costs.

Draw the modified award accordingly.

The amount in deposit, if any, by the Insurance Company in the Registry be transferred to the concerned MACT without delay. Registry to send a copy of this order along with lower Court records to the concerned MACT, without delay.

Ordered accordingly.