Research › Search › Judgment

Karnataka High Court · body

2023 DIGILAW 178 (KAR)

New India Assurance Co. Ltd. v. Yohan Desa

2023-02-01

H.P.SANDESH

body2023
JUDGMENT/ORDER 1. This appeal is filed by the Insurance Company challenging the judgment and award dtd. 23/6/2015 passed in MVC No.377/2008 on the file of the Additional District and Sessions Judge and Additional MACT, Udupi, sitting at Kundapura ('the Tribunal' for short). 2. Heard the learned counsel appearing for the respective parties. 3. The factual matrix of the case of the plaintiff before the Tribunal is that he met with an accident on 27/9/2007 when he was proceeding on the side of the mud road near Virupaksha Temple, Hosangadi village, Kundapura taluk, at that time, a lorry came and dashed against him, as a result, he had sustained injuries and immediately, he was taken to the KMC hospital wherein he took treatment from 27/9/2007 to 11/12/2007 and later he took treatment as an out patient. In pursuance of the claim petition, the insurance company appeared and filed the written statement denying the averments made in the claim petition and respondent No.1 also represented through counsel but not filed any written statement. The specific contention taken by the counsel for the respondent No.2 that the injury sustained by the petitioner is not relating to the accident that was occurred on 27/9/2007 with involvement of the vehicle and there was a delay of 14 days in filing the complaint and the history is mentioned that fall from a tree from the height of around 20 feet and after the registration of the case, manipulated the records in order to claim the compensation. 4. The claimant in order to substantiate his case, he himself examined as PW1, also examined the doctor as PW2, the Police Constable as PW3 and eye-witnesses have been examined as PW4 and PW5 and got marked the documents at Ex.P1 to P22. On the other hand, respondents have examined one of the witness as RW1 and got marked the documents at Ex.R1 to R10. The Tribunal after considering both oral and documentary evidence placed on record, answered Issue No.1 as affirmative coming to the conclusion that accident was occurred and the petitioner had sustained injuries in the said accident and awarded the compensation and fastened the liability on the insurance company. Hence, the present appeal is filed before this Court. 5. The Tribunal after considering both oral and documentary evidence placed on record, answered Issue No.1 as affirmative coming to the conclusion that accident was occurred and the petitioner had sustained injuries in the said accident and awarded the compensation and fastened the liability on the insurance company. Hence, the present appeal is filed before this Court. 5. The main contention of the insurance company that it is a case of clear fraud in order to make wrongful gain and further contended that immediately after the accident, injured was taken to the KMC hospital wherein history was given as fall from tree at 4.30 p.m. on 27/9/2007. The brother who had taken the injured to the hospital given the history that it is a case of fall from tree. The counsel also further submits that Ex.P7-discharge summary is also clear that history was given as fall from tree and the police as well as the doctor have colluded with each other in order to help the claimant to make wrongful gain and even Ex.R5 clearly discloses that intimation was sent to the police on the very same day wherein also history was given as fall from tree. Hence, the Tribunal has committed an error in taking note of filing of charge-sheet and only on the ground that the chargesheet was filed against the driver of the lorry, allowed the petition and granted compensation hence, the Tribunal failed to consider the documents particularly, Ex.R5 and Ex.P7-discharge summary and a delay of 14 days in filing the complaint. 6. Per contra, the learned counsel appearing for the respondent/claimant would submit that the driver of the lorry had assured that he would meet the medical expenses and hence, the complaint was not given immediately and the same is explained in the evidence. The police have also investigated the matter and filed the charge-sheet against the driver of the lorry and Tribunal also taken note of the same and considered the explanation given by the injured and accepted the case of the claimant. The police have also investigated the matter and filed the charge-sheet against the driver of the lorry and Tribunal also taken note of the same and considered the explanation given by the injured and accepted the case of the claimant. The Tribunal not accepted the evidence of RW1 who is a investigating agent examined by respondent No.2 and rightly comes to the conclusion that no much credibility can be attracted to this evidence and no rebuttal evidence is placed before the Court by the respondents Having taken note of the said fact into consideration, the Tribunal allowed the claim petition and granted the compensation. Hence, it does not require any interference. 7. Having heard the learned counsel appearing for the respective parties and also on perusal of the material available on record, the point that would arise for consideration of this Court is: (1) Whether the Tribunal has committed an error in allowing the claim petition in granting the compensation of Rs.7, 89, 150.00? (2) What order? Point No.1 8. Having heard the learned counsel appearing for the respective parties and also on perusal of the material available on record it discloses that admittedly, the accident was occurred on 27/9/2007 and according to the injured, immediately after the accident he was taken to the hospital wherein the history was given as fall from tree since the driver of the lorry had assured that he would meet the medical expenses. Admittedly, the complaint was given on 10/10/2007 hence, there is a delay of 14 days in lodging the complaint and no doubt, in the complaint it is stated that the driver of the lorry assured to meet the medical expenses and the driver and owner agreed to pay the hospital bill but the driver never came and met him hence, the complaint is given belatedly. The Tribunal ought to have taken note of the history given at the time of admission of injured to the hospital and the injured was having conscious when he was taken to the hospital and the brother of the injured who had taken the injured to the hospital, both of them have given the history as fall from tree. The Tribunal ought to have taken note of the history given at the time of admission of injured to the hospital and the injured was having conscious when he was taken to the hospital and the brother of the injured who had taken the injured to the hospital, both of them have given the history as fall from tree. The doctor who has been examined before the Tribunal says the same history but PW2 in his evidence says that subsequently on enquiry, he comes to know that it was an accident but the fact is that based on the history, intimation was given to the police in terms of Ex.R5. PW3 also in the cross-examination categorically admits that in the history which was given immediately after the accident that fall from tree. The claimant has examined PW4 and PW5 claiming that they are the eye-witnesses to the alleged incident. It is their evidence that they have accompanied with the injured to the hospital and PW4 says that the brother of the injured came to the hospital on the very next day but the history says that brother of the injured was accompanied with him on the date of the accident itself. PW4 and PW5 says that they have not given any history before the doctor hence, their evidence cannot be believed. 9. The Court has to take note of the documentary evidence placed on record which came into existence immediately after the accident and history was given that fall from tree and intimation was also given in terms of Ex.R5 and discharge summary at Ex.P7 discloses that it was a case of fall from tree and subsequently, the documents are created after the lapse of 13 days and when the documentary evidence is placed before the Court, the Tribunal ought to have considered the same particularly Ex.P7 as well as Ex.R5 but only relied upon the police documents at Ex.P1 and P6-charge-sheet. The Tribunal also while answering Issue No.1 comes to the conclusion that the evidence of RW1 cannot be given much importance. The Tribunal also while answering Issue No.1 comes to the conclusion that the evidence of RW1 cannot be given much importance. No doubt, he is the investigating agent but the immediate records of the hospital, given the history as fall from tree and the intimation given to the police in terms of Ex.R5 was not considered by the Tribunal and instead of it comes to the conclusion that the charge-sheet is filed against the driver of the lorry and no rebuttal evidence is led before the Tribunal. The said observation is erroneous when the document of Ex.P7 as well as Ex.R5 are clear. The Tribunal given much importance to the oral evidence of PW1 to PW5 and PW1 also categorically admitted in the cross-examination that he has given the history to the doctor that while going, an accident was occurred and if really he has given the said history, the same would have been mentioned in the medical records of the hospital but the medical records information is as against the evidence of PW1 and also he categorically admits that he was having conscious when he was taken to the hospital and the doctor who has been examined as PW2 also categorically admits that the history was given as per the injured as well as the attendant. PW3-Police Constable also admits with regard to the delay in lodging the complaint and also history given on 27/9/2007 itself as a case of fall from tree and these are the admitted evidence has not been considered by the Tribunal hence, committed an error in proceeding with allowing the claim petition and granted compensation hence, I answer point No.1 as affirmative. The fraud and justice should not dwell together whenever material discloses that in order to make wrongful gain, the claim was made and the documents are created and based on the created documents, the claim is made, the Tribunal ought to have taken note of the said fact but failed to consider the same and lost the sight on the documents particularly, Ex.R5 and P7 wherein the history was mentioned as fall from tree. Hence, the order requires to be set aside. Point No.2 10. In view of the discussion made above, I pass the following: ORDER a) The appeal is allowed. b) The impugned judgment and award of the Tribunal dtd. Hence, the order requires to be set aside. Point No.2 10. In view of the discussion made above, I pass the following: ORDER a) The appeal is allowed. b) The impugned judgment and award of the Tribunal dtd. 23/6/2015 passed in MVC No.377/2008 is set aside consequently, the claim petition is dismissed. c) The amount in deposit made by the Insurance Company is ordered to be refunded to the insurance company on proper identification. d) The Registry is directed to send the records to the concerned Tribunal, forthwith.