Karnataka High Court

Sri R Shivakumar vs Sri Bhojaraj R H on 27 January, 2021

Author: H T Prasad

                         1



IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 27TH DAY OF JANUARY 2021

                      BEFORE

THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD

            MFA No. 6594 OF 2017(MV)

BETWEEN:

SRI R SHIVAKUMAR
AGED 37 YEARS
SON OF SRI. RUDAIAH
(SRI. RUDRAIAH)
RESIDENT OF 2ND CROSS
SRINIDHI NAGAR
TUMAKURU TOWN 572 101.
                                     ...APPELLANT

(BY SRI.N.JAGADEESH BALIGA, ADV.)

AND

1.    SRI BHOJARAJ R H
      AGED 42 YEARS
      SON OF HANUMANTHAPPA
      RESIDENT OF NAYAKARA BEEDI
      TAREKERE TAUK-577 228
      CHIKKAMAGALUR DISTRICT.

2.    THE REGIONAL OFFICE
      SHRIRAM GENERAL INSURANCE
      COMPANY LIMITED
                            2



     NO.302, 3RD FLOOR
     S&S CORNER BUILDING
     FLAT NO.48, HOSPITAL ROAD
     SHIVAJI NAGAR,BENGALURU 560 001.
                                       ...RESPONDENTS

(BY SRI.H N KESHAVA PRASHANTH, ADV. FOR R2:
R1 SERVED AND UNREPRESENTED)

     THIS MFA IS FILED UNDER SECTION 173(1) OF
MV   ACT    AGAINST   THE JUDGMENT         AND AWARD
DATED:06.06.2017 PASSED IN MVC NO.1080/2015
ON THE FILE OF THE 3RD ADDITIONAL SENIOR CIVIL
JDUGE & MACT,TUMAKURU, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.


     THIS    MFA    COMING     ON    FOR     ADMISSION,
THROUGH     VIDEO     CONFERENCE,     THIS    DAY,   THE
COURT DELIVERED THE FOLLOWING:


                      JUDGMENT

This appeal under Section 173(1) of the Motor

Vehicles Act, 1988 (hereinafter referred to as 'the Act',

for short) has been filed by the claimant being

aggrieved by the judgment dated 6.6.2017 passed by

the Motor Accident Claims Tribunal.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 15.1.2013, the claimant was

proceeding on the extreme left side of the road of NH

206, near the Matha Residency Hotel of Kibbanahalli

Cross, the driver of the lorry bearing registration

No.KA-18-6469 being driven by its driver at a high

speed and in a rash and negligent manner, dashed to

the claimant. As a result of the aforesaid accident,

the claimant sustained grievous injuries and was

hospitalized.

3. The claimant filed a petition under Section

166 of the Act seeking compensation. It was pleaded

that he spent huge amount towards medical

expenses, conveyance, etc. It was further pleaded

that the accident occurred purely on account of the

rash and negligent driving of the offending vehicle by

its driver.

4. On service of notice, the respondent No.2

appeared through counsel and filed written statement

in which the averments made in the petition were

denied. The respondent No.1 did not appear before

the Tribunal inspite of service of notice and was placed

ex-parte.

5. On the basis of the pleadings of the parties,

the Claims Tribunal framed the issues and thereafter

recorded the evidence. The Tribunal held that the

claimant is entitled to a compensation of

Rs.1,27,500/- along with interest at the rate of 6%

p.a. and directed the Insurance Company to deposit

the compensation amount along with interest. Being

aggrieved, this appeal has been filed.

6. The learned counsel for the claimant has

contended that due to the accident, the claimant has

lost his both eyesight and became 100% disabled

person. He has produced disability certificate at Ex.P-

7. Considering the same, the compensation granted

by the Tribunal is on the lower side. Hence, he sought

for allowing the appeal.

7. On the other hand, the learned counsel for

the Insurance Company has contended that the

accident has occurred in the year 2013, the claimant

has filed claim petition in the year 2015, after lapse of

2 years. There is no plea in respect of loss of eye

sight. Ex.P-7, disability certificate is issued in the year

2016 to show that there is loss of eye sight after lapse

of 3 years from the date of accident. Moreover, the

claimant has not examined the doctor. The Tribunal

considering the same has awarded just and

reasonable compensation. Hence, he sought dismissal

of the appeal.

8. Heard the learned counsel for the parties

and judgment and award of the Tribunal.

9. It is not in dispute that the accident has

occurred due to rash and negligent driving of the

offending vehicle by its driver. It is the specific case of

the claimant that, due to the accident, the claimant

has lost his eye sight. But the claimant has not

examined the doctor regarding the disability suffered

by him.

10. The Motor Vehicles Act is a social beneficial

piece of legislation, which caters to the need of the

claimants. The very scope and object of the Act while

dealing with the claim, is to protect and promote the

interest of the claimants. For both the injured, and

family of the deceased would find themselves in a

difficult situation after suffering an accident.

Therefore, the Act tries to monetarily compensate

both the injured, and the dependents of a deceased

by providing certain benefits under the Act.

11. In the case of Shri. Iqbalahamed vs.

Vice Chairman, M/s. Patel Integrated Logistics

Ltd. and Another [ILR 2017 KAR 3045], this

Court, has clearly observed that in cases where the

claimants are unable to examine the treating doctors

as witness, the presiding Officer of the Tribunal shall

play a pro-active role in ensuring the presence of the

doctors by invoking the power under Section 165 of

the Evidence Act. Paragraphs-8 and 9 of the said

decision is relevant and the same is extracted

hereunder:

"8.This case is a classic example of the lackadaisical performance of many Tribunals dealing with motor accident claims while discharging their judicial duty. Repeatedly it

has come to the notice of this Court that in large number of claim petitions, the claimants are unable to produce either the treating Doctor, or the Doctor who has issued the Disability Certificate, as a witness. The claimants may be prevented from producing such witness either because of their poverty, ignorance, illiteracy, or because such witness, being doctors, are invariably too busy to appear before the Tribunals. But in these circumstances, which are beyond the control of the claimant, invariably, it is the claimant who suffers for no fault of his or her. Considering the fact that the treating Doctor, and the Doctor who has issued the Disability Certificate are material witnesses in a claim petition, it is essential that their presence be ensured by the Presiding Officers of the Tribunal by invoking the power under Section 165 of the Evidence Act.

9. In the case of Raj Kumar (supra), the Hon'ble Supreme Court has reminded the Presiding Officers of the Tribunals, dealing with claim petitions, that they should function neither as a neutral umpire, nor as a silent spectator. In fact, a pro-active role needs to be

played by the Presiding Officers of the Tribunals. Since the Tribunal has ample powers under Section 165 of the Evidence Act to summon a court witness, the learned Tribunals are expected to exercise such powers in favour of the claimants. The Presiding Officers cannot shy away from exercising the said power on the flimsy ground that, in case such a power were to be exercised, the learned members of the Bar get agitated. Both the learned members of the Bar, and the Presiding Officers must realize that the duty of the Bar and the Bench is not only to discover truth, but is also to do justice to the parties. If the Presiding Officers were to call any person as court witnesses, the Presiding Officers are merely adopting a means to discover the truth. By no stretch of imagination, it can be said that by calling a court witness, the Presiding Officer is revealing his partiality in favour of the claimant. Therefore, no valid objection can be taken by the learned members of the Bar when the power vested in the Presiding Officer under Section 165 of the Evidence Act is invoked in favour of the claimant.

12. In view of the decision of this Court in the

case of Shri. Iqbalahamed (supra), this court is of

the opinion that the matter needs to be remanded

back to the Tribunal with a direction to the Presiding

Officer of the Tribunal to summon the treating doctor

and in case the treating doctor is not available, the

Tribunal shall refer the matter to the Medical Board for

assessment of disability.

13. Accordingly, the appeal is allowed. The

judgment and award passed by the Tribunal is set-

aside. Insofar as fastening liability on the insurance

company is concerned, it is confirmed. The matter is