Karnataka High Court

Chidanandamurthy @ ... vs Ramesh N on 11 January, 2021

Author: H T Prasad

                         1



IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 11TH DAY OF JANUARY 2021

                      BEFORE

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

            MFA No.9149 OF 2013(MV)

BETWEEN:

CHIDANANDAMURTHY
@ CHIDANANDAPPA
S/O SHEKHARAPPA
AGED BOUT 32 YEARS
TEACHER, SRI.DHAMALAMBA HIGH SCHOOL
R/O CHIKKAGUNTANUR VILLAGE
CHITRADURGA TALUK-577 501.
                                ... APPELLANT

(BY SRI.R.SHASHIDHARA, ADV. )

AND

1.    RAMESH N.
      S/O NAGENDRAPPA
      AGED ABOUT 30 YEARS
      R/O HIREGUNTANUR VILLAGE
      CHITRADURGA TALUK-577 501.

2.    THE BRANCH MANAGER
      NATIONAL INSURANCE CO. LTD.,
      B.M. COMPLEX, LAXMI BAZAR,
      CHITRADURGA-577 501.
                                 ... RESPONDENTS
                            2




(BY SRI. H.S.LINGARAJ, ADV. FOR R2:
NOTICE TO R1 IS DISPENSED WITH)

     THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD
DATED: 06.07.2013 PASSED IN MVC NO.279/2013 ON
THE FILE OF THE I ADDL. SENIOR CIVIL JUDGE AND
MACT-V, CHITRADURGA, 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 06.07.2013 passed

by the Motor Accident Claims Tribunal.

2. Brief facts of the case:

On 17.9.2011 at about 11.20 a.m., claimant was

proceeding on his motorcycle bearing Registration

No.KA-16/M-2404, towards Hireguntanur, near

Gopamma land cross, at that time, a motorcycle

bearing Registration No.KA-16/S-2372 being ridden by

its rider, came at a high speed and in a rash and

negligent manner and dashed against the motorcycle

of 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 on the ground that he was a teacher

and was getting salary of Rs.14,000/- per month. The

claimant claimed compensation to the tune of

Rs.15,00,000/- along with interest.

4. On service of summons, even though

respondent No.1 appeared through his counsel, but

not filed written statement. The respondent No.2

appeared through its counsel and filed written

statement in which the averments made in the

petition were denied. It was pleaded that the petition

si bad for non-joinder of necessary parties as the

owner and insurer of motorcycle bearing Reg.No.KA-

16/V-2404. It was further pleaded that the accident

was occurred due to rash and negligent riding of the

motorcycle by the claimant himself. It was further

pleaded that the offending vehicle was insured with

respondent No.2, but the liability if any, is subject to

terms and conditions of the policy. Hence, he sought

for dismissal of the petition.

3. The learned counsel for the claimant has

raised the following contentions.

Firstly, due to the accident claimant has suffered

hemorrhage contusion in right temporal portion and

fracture of left frontal bone. Due to disability he is

unable to do day today work. He has produced

Ex.P.16, disability certificate issued by the District

Hospital, Chitradurga, which shows that whole body

disability assessed at 40%. The Tribunal has not

granted any compensation under the head of 'loss of

income due to disability'.

Secondly, the compensation awarded by the

Tribunal under other heads are on the lower side.

Hence, he sought for allowing the appeal.

4. Per contra, the learned counsel for the

Insurance Company has raised the following

contentions.

Firstly, even though the claimant has produced

disability certificate, but he has not examined treated

doctor, who has issued the same and he has not

proved the documents. Therefore, the Tribunal on the

basis of the materials available on record has granted

just and reasonable compensation. Hence, he sought

for dismissal of the appeal.

5. Heard the learned counsel for the parties.

Perused the judgment and award of the Tribunal and

original records.

6. It is not in dispute that the claimant has

sustained injuries in a road traffic accident occurred

on 17.9.2011 due to rash and negligent riding of the

offending vehicle by its rider. Due to the accident, the

claimant has suffered hemorrhage contusion in right

temporal portion, fracture of left frontal bone. The

Tribunal has given a finding that the claimant has not

examined the doctor regarding the nature of injuries

and disability suffered by him.

7. The claimant has produced Ex.P16,

disability certificate issued by District Hospital,

Chitradurga, it is mentioned that there is 40% whole

body disability, but the claimant has not examined the

doctor regarding the nature of injuries and disability

suffered by him.

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.

8. 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.

9. In the present case, the claimant has not

examined the doctor regarding the disability suffered

by him.

10. 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.