Full Judgment Text
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®
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
DATED THIS THE 28 DAY OF JANUARY, 2015,
: BEFORE :
THE HON’BLE MR. JUSTICE N.K. PATIL
M.F.A.NO. 6134 OF 2009 (MV)
Between:
Sri. Kumara Nayak,
S/o. Thangamuthu,
Aged about 27 years,
th
R/at. V.C. Colony, 13 Ward,
Pandavapura, Mandya District,
Now R/at. D.No.1050,
Deva Parthiva Road, Chamarajapuram, Mysore-5.
... Appellant
(By Shri. M.S. Nagaraj, Advocate)
And:
1. H. Nagaraju S/o. H. Halegowda,
Kyathanahalli Post and Village,
Mysore Taluk & District.
(Owner & Driver of Yamaha Crux
Bearing NO.KA-45-E-2096)
2. Bajaj Allianz General Insurance Co. Ltd.,
No.363, Shrihari Complex,
Seeth Vilas Road, Mysore.
(Policy No.OG 07/1705/1802/00002619
Valid from 2/1/2006 to 1/1/2007)
... Respondents
(By Shri. R.C. Prasanna Kumar, Advocate for R1;
Smt. H.R. Renuka, Advocate for R2)
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This MFA is filed U/S 173(1) of MV Act, against the
Judgment and Award dated: 02/01/2009, passed in MVC
No.22/2007, on the file of the Presiding Officer, Fast Track
Court-III, Mysore, holding concurrent charge of Fast Track
Court-I, Mysore, dismissing the claim petition for compensation.
This MFA coming on for Hearing, this day, the Court
delivered the following:
J U D G M E N T
This appeal by the claimant is directed against the judgment
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and award dated 2 January 2009, passed in MVC No.22/2007,
by the Presiding Officer, Fast Track Court-III, Mysore, holding
concurrent charge of Fast Track Court-I, Mysore, (for short,
‘Tribunal’), for awarding reasonable compensation on the ground
that, the Tribunal is not justified in dismissing the claim petition.
2. The appellant claims to be aged about 35 years and hale
and healthy prior to the date of accident, working as an
agricultural coolie, earning a sum of Rs.4,000/- per month. It is
alleged that the appellant met with an accident at about 7:30
P.M., on 20-09-2006, when he was returning by his bicycle, on the
left side of the road on Mandya-Nagamangala Bypass road, about
1 kmt. East of Pandavapura Police Station, on account of rash
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and negligent riding by the rider of Motor Cycle Yamaha Crux
bearing Registration No.KA-45/B-2096. Due to the impact, the
appellant sustained grievous injuries and was immediately shifted
to Government Hospital, Pandavapura and then to K.R. Hospital
at Mysore. for further treatment.
3. On account of the injuries sustained in the accident, the
appellant filed the claim petition under Section 166 of the Motor
Vehicles Act, before the Tribunal, seeking compensation of a sum
of ` 5,70,000/- against the Insurance Company and another. The
said claim petition had come up for consideration before the
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Tribunal on 2 January, 2009. The Tribunal, after considering the
relevant material available on file and after appreciation of the oral
and documentary evidence, dismissed the claim petition, holding
that the appellant has utterly failed to prove the occurrence of
road traffic accident and the Insurer has proved the violation of
the terms and conditions of the policy that would absolve them of
their liability to pay the compensation amount. Being dissatisfied
with the dismissal of the claim petition by the Tribunal, the
appellant has filed the appeal before this Court, seeking award of
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reasonable compensation on account of the grievous injuries
sustained in the road traffic accident..
4. I have gone through the grounds urged in the
memorandum of appeal and the impugned judgment and award
passed by Tribunal and heard the learned counsel appearing for
the appellant and the learned counsel appearing for Insurer.
5. Learned counsel appearing for appellant at the outset
vehemently submitted that, the Tribunal grossly erred in not
accepting the case made out in the claim petition, seeking award
of reasonable compensation on account of the grievous injuries
sustained in the road traffic accident and in fact, the Tribunal has
proceeded to assess the quantum of compensation under
different heads on account of the injuries sustained by appellant,
but dismissed the claim petition, on the ground that there is an
entry in the register, mentioning that the appellant fell from the
bicycle and sustained the injuries. Further, he submitted that the
Tribunal has dismissed the claim petition, holding that the
appellant has narrated the accident in different ways on different
occasions, but it is a fact that he was very much conscious when
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he was admitted in the Hospital. But such statements cannot take
away the legitimate entitlement of compensation on account of
the injuries sustained by the appellant in the road traffic accident.
This aspect of the matter has not been looked into nor considered
nor appreciated nor awarded reasonable compensation, on the
contrary, erred in dismissing the claim petition on hyper technical
grounds. Therefore, the impugned judgment and award passed by
Tribunal is liable to be modified, allowing the claim petition, and
awarding reasonable compensation on account of the injuries
sustained in the road traffic accident.
6. As against this, learned counsel appearing for Insurer
inter alia sought to substantiate the judgment and award passed by
Tribunal, stating that the same is passed after critical evaluation
entire material available on file, including the oral evidence of
PWs 1 and 2 and RWs 1 and 2 and documentary evidence at
Exs.P1 to P11 and Exs.R1 to R6(a). She further submitted that
the seizure Mahazar and spot mahazar coupled with MLC register
and oral evidence of RW2 supports the documentary evidence
and that the person who first brought the appellant to the
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Hospital, has categorically stated that the appellant has fallen
down from the bicycle and sustained injuries and that fact is also
admitted by the appellant. Therefore, the Tribunal, after due
consideration of Ex.P5, the Certificate issued by the Casual
Medical Officer, Pandavapura and the original MLC register
produced by RW2, Dr. B.T. Shivaram, establishes that the
injured appellant sustained injuries on account of falling from the
bicycle and not on account of the alleged road traffic accident
stated to have occurred at about 7:30 P.M. on 20-09-2006. The
Tribunal, after due consideration of the entire material available
on file, has recorded a specific finding of fact at paragraphs 15
and 16of its judgment and arrived at a conclusion that appellant
has utterly failed to produce any credible documents in support of
his oral statement to prove the injuries sustained in the road
traffic accident. Therefore, she submitted that the Tribunal has
rightly dismissed the claim petition, which is well founded and
well reasoned one. Hence, interference in the same is uncalled
for.
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7. After hearing the learned counsel appearing for
appellant, learned counsel appearing for Insurer, after perusal of
the impugned judgment and award passed by Tribunal, and after
due consideration of the entire material available on file, the only
point that arise for my consideration in this appeal is,
“Whether the Tribunal is justified in
dismissing the claim petition?”
8. After perusal of the entire material available on file, it
emerges that, the Tribunal, after assessing the oral evidence of
PWs 1 and 2 and RWs 1 and 2 and documentary evidence at
Exs.P1 to P9 and Exs.R1 and R6(a), has rightly dismissed the
claim petition, by recording a specific finding of fact at paragraphs
15 and 16 of its judgment, by giving valid and cogent reasons.
9. On perusal of the reasoning given by Tribunal, it could
be seen that, the accident took place around 7.30 p.m. on
20.9.2006. Admittedly it was dark then. Contents of the claim
petition reveals that, after his day’s work as Coolie, the appellant
was returning home, riding his bicycle. When he was so riding, the
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first Respondent came and dashed against him. Those pleadings
are too very bald to be of any consequence as it does not reveal in
which direction the said Respondent came, i.e. from the front
side or from the back side. No sketch is produced to substantiate
the said statement. It is also uncertain if any sketch existed or
otherwise. Mere use of words like rash or negligent or high speed
by itself would not be of any consequence. Suffice it to say that
those pleadings are wholly insufficient. During the statement
made on oath before the court through affidavit, PW1 Kumara
Nayaka, the appellant has contended similarly, reproducing the
contents of the claim petition, which are bald. Hence, the same is
insufficient to create a liability on the Insurer. It is during the
course of his cross examination, that the appellant, PW1 says as
follows:
“C¥ÀUÁvÀªÁzÀzÀÄÝ ¥ÁAqÀªÀ¥ÀÅgÀ ¨ÉÊ¥Á¸ï
gÀ¸ÉÛAiÀÄ°è. C°è MAzÀÄ PÁæ¸ï EgÀÄvÀÛzÉ. £Á£ÀÄ
£ÁUÀªÀÄAUÀ® PÀqɬÄAzÀ §AzÀÄ ¥ÁAqÀªÀ¥ÀÅgÀ PÀqÉUÉ
ºÉiÁÃUÀ¨ÉÃPÁVvÀÄÛ. £Á£ÀÄ §AzÀzÀÄÝ CqÀØ
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gÀ¸ÉÛAiÀÄ°è. ªÀÄAqÀå ¥ÁAqÀªÀ¥ÀÅgÀ C£ÀÄߪÀÅzÀÄ ªÀÄÄRå
gÀ¸ÉÛ. £Á£ÀÄ £À£Àß §®¨sÁUÀPÉÌ ºÉiÁ ,ÃUÀ¨ÉÃPÁVvÀÄÛ.”
10. The Counsel for the first Respondent contended
that the appellant himself was rash and negligent in entering the
road as he was required to come on to his right side of the road. It
was obligatory on his part to wait for the plying vehicles before
he could enter the main road, since he had no right of way. The
said statements of the appellant is not indicative of any
negligence on the part of the vehicle that caused the incident.
During such statement only, the appellant also says that said
vehicle came from his hind side. That statement would be a piece
of evidence without there being pleading. It is true that, there
cannot be pedantic interpretation of the evidence on record, - in a
summary proceedings of this nature. Counsel for the appellant is
also justified in saying that this is a social piece of legislation and
such kind of interpretation should not lead to miscarriage of
justice. However the evidence on record is not of such nature as
to inspire confidence in the trustworthiness of the appellant in
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this alleged accident. Suffice it to say that the pleadings and the
oral testimony on record are not indicative of any negligence on
the part of the rider of the offending vehicle, which was
purported to have caused the incident.
11. In fact, the learned counsel for the appellant argued
vehemently that the oral testimony of the appellant, PW 1 is being
substantiated by the documentary piece of evidence produced and
got marked as Ex.P.1 to Ex.P.7, - in the form of police papers.
Institutional Investigation by the Police. The Respondent No.1
was prosecuted as per document produced at Ex.P.6, - the copy
of the charge sheet. That would in turn, according to counsel for
the appellant suffice in maintaining a petition under Section 166
of the Motor Vehicles Act, where the appellant is required to
prove actionable negligence. The degree of proof required in
matters of this nature are far less than the one contemplated
under the criminal law. Hence according to the counsel for the
appellant, discrepancies appearing in the case-even if any, need
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not be magnified out of all proportions only to defeat the rights
of the appellant to claim compensation.
12. However, during the course of the written
arguments, according to the appellant, the incident took place on
20.09.2006 at about 7.30 p.m. But then, that complaint was filed
by his wife Sheela Kumara Nayak on 28.11.2006 at 10.30 a.m.
There is a delay of almost about 68 days or so in filing the said
complaint. Copy of the complaint is not produced but the FIR is
produced at Ex.P.1. It is through this Ex.P.1 that one comes to
know the name of the person who filed the complaint. First of
all, there is an unreasonable delay in filing the complaint. That
delay has given ample scope for the appellant to engage himself
in pre-verification and embellishment, which has materially
affected the rights of the appellant, rather adversely. The only
person who was expected to explain the said inordinate delay,
was the appellant himself. However he does not whisper a word
either in pleadings or during the course of his statement made on
oath before the Court. Another person who could have possibly
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explained the inordinate delay, was his wife Sheela. She also has
not been examined before the Court. Unexplained delay has
materially affected the rights of the appellant.
13. Further, it could be seen that, immediately after the
incident, according to the appellant, he was shifted to the
Government Hospital at Pandavapura, where first aid was given
to him. Appellant claims it to be an emergency treatment, and
then he was shifted to the K.R. Hospital at Mysore. The Wound
Certificate is produced at Ex.P.5 and its contents reveal that the
appellant was brought to the Hospital by Autorickshaw with a
Road Traffic Accident between a Scooter and a bicycle on
20.9.2006 at about 8 p.m. Registration number of scooter was not
known. The date of the said document is altered so also a.m. or
p.m. Ex.P.5 is a Wound Certificate issued by the Casualty
Medical Officer at Taluk Hospital, Pandavapura, who was
summoned and examined before the Court, for and on behalf of
the Respondent as RW2. That RW 2 Dr. Shivaram had brought
the original MLC Register and the relevant entry finds a place at
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Page No.61 of that Register. Attention of this RW 2 was drawn to
that entry dated 20.9.2006 at 8.30 p.m. Contents there in are in the
handwriting of RW 2, which reads thus.
“F ¥ÀæPÀgÀtzÀ CfðzÁgÀ£ÁzÀ
PÀĪÀiÁgÀ£ÁAiÀÄPÀ C£ÀÄߪÀªÀ£ÀÄ £ÀªÀÄä D¸ÀàvÉæAiÀÄ°è
zÁR¯ÁzÁUÀ ¥ÀæUÁߪÀ¸ÉÞ ,AiÀÄ°è EzÀÝ. DvÀ£À£ÀÄß
D¸ÀàvÉæUÉ vÀAzÀ ªÀåQÛUÀ¼ÀÄ DvÀ ¸ÉÊPÀ¯ï ªÉÄà ,¯É ©zÀÄÝ
UÁAiÀÄ ºÉÇ ,A¢zÀÝ C£ÀÄߪÀ PÁgÀt £Á£ÀÄ CzÉà jÃw
§gÉ¢zÉÝ.”
14. Further RW 2 says that the injured narrated the
incident in a different way and as such, he scored the earlier
portion and wrote the later portion. In the earlier portion,
extracted above it indicates that the appellant got injured during a
fall, while riding his bicycle. It is of significance to appreciate that
the appellant was very much conscious, when he was admitted to
the Hospital and when such statements were being recorded by
the Doctor, RW 2.
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15. Further, it can be seen that, if there were to be an
element of truth in what is being stated by RW2, then, it becomes
obvious that RW 2 was aware of the fact that, it was a medico
legal case. In that event, there was an obligatory duty cast on RW
2, to have reported the same to the jurisdictional Police about
such a case, and about such a person being examined there at
their Hospital. Till the date of registering the case on 28.11.2006,
Police had no information whatsoever about this incident taking
place on 20.9.2006. Admittedly RW 2 had not reported to the
jurisdictional Police. Therefore, it fails to prove the Road Traffic
accident taking place and notwithstanding the Police papers,
prepared subsequently like Ex.P.1 to Ex.P.7, they tend to be
collusive in nature. Incidentally, it also needs to be appreciated
that the copy of the complaint is not filed, but a copy of the FIR
is filed at Ex.P.1. In column No.9 of the said FIR, the particulars
of the complaint are given, which reveals the vehicle number, but
not the name of the rider. That may be certainly natural in certain
set of facts and circumstances of the case, may be including the
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present one. But then, it is of great significance to note that
reference to that vehicle number was not the result of any
investigation by the Police. It just appears in that record, namely
the complaint and the FIR, after the two months. That vehicle
number was alleged have been given to the said Sheela Kumar
Nayak by her husband namely the appellant. The appellant on
oath whispers not a word as to how he came to know of the
vehicle number. The very basis for registering the case is in the
field of umbra, touching that vehicle number. In the absence of
acceptable evidence in that regard, the claim petition against the
Respondents would not be maintainable. Existence of the valid
Insurance Cover is proved by the document at Ex.R.2, the
Insurance Policy. Ex.R.1 is the authorization letter, authorizing
RW 1 to depose for and on behalf of the Respondent No.2.
Ex.R.3 (Same as Ex.P.3) and Ex.R.4 is the seizure mahazar and
the sketch respectively, -prepared by the Police. Ex.P.5 is the copy
of the notice issued to the Respondent No.1 under RPAD, by
Respondent No.2, calling upon the Respondent No.1 to furnish
the necessary requisites. But the Respondent No.1 has failed to
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reply in that regard. Mere existence of Insurance Cover by itself
would not make that offending vehicle and its owner liable to pay
the compensation amount, for the reasons set out above, more
so, in the event of such Respondent No.1 colluding with the
appellant. Therefore, the Respondent No.1 has failed to
participate in the proceedings and has not cross examined the
witness PW 1 and PW 2. That apart, the said Respondent has
failed to enter the witness box and make a statement on oath
before the Court. Therefore, the Tribunal recorded a finding of
fact that the appellant has failed to prove the road traffic accident
and the Insurer has proved the violations of terms and conditions
of the policy that would absolve them of their liability to pay the
compensation. The said reasoning given by Tribunal is after
critical evaluation of the oral and documentary evidence available
on file and hence interference in the same is uncalled for.
16. Therefore, having regard to the facts and circumstances
of the case, the appeal filed by appellant is liable to be dismissed
as being devoid of merit. Accordingly, it is dismissed.
Office to draw award, accordingly.
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In view of disposal of main matter, I.A.No.1/2013 does
not survive for consideration and is disposed of as having become
infructuous.
SD/-
JUDGE
BMV*