E C Ajjappa @ Ajjaiah vs E Nagaraj
2021 Latest Caselaw 2127 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

            DATED THIS THE 4TH DAY OF JUNE, 2021

                          BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

                  M.F.A.NO.1915/2013 (MV)

BETWEEN:

E.C. AJJAPPA @ AJJAIAH,
S/O E.V. CHANDRASHEKHARAPPA,
AGED ABOUT 23 YEARS,
AGRICULTURIST,
R/O CHIKKALAGATTA,
CHITRADURGA TALUK.
                                              ... APPELLANT

            (BY SRI R. SHASHIDHARA, ADVOCATE)

AND:

1.     E. NAGARAJ,
       S/O G. ESWARAPPA,
       AGED ABOUT 50 YEARS,
       RC OWNER OF TRACTOR TRAILER
       BEARING REG NO.KA-16/TA-1884-1885,
       R/O DODDALAGATTA,
       CHITRADURGA TALUK.

2.     THE BRANCH MANAGER,
       THE NATIONAL INSURANCE CO. LTD.,
       BRANCH OFFICE, LAKSHMI BAZAAR,
       CHITRADURGA TOWN.
                                            ... RESPONDENTS

        (BY SRI SPOORTHY HEGDE, ADVOCATE FOR R-1;
        SRI A.N. KRISHNA SWAMY, ADVOCATE FOR R-2)
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     THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 23.08.2012
PASSED IN MVC NO.130/2011 ON THE FILE OF THE II
ADDITIONAL SENIOR CIVIL JUDGE, ADDITIONAL MACT-6,
CHITRADURGA, DISMISSING THE CLAIM PETITION FOR
COMPENSATION.

    THIS M.F.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 01.06.2021, THIS DAY THROUGH VIDEO
CONFERENCE, THE COURT PRONOUNCED THE FOLLOWING:

                                JUDGMENT

This appeal is filed by the claimant challenging the

judgment and award dated 23.08.2012 passed in

M.V.C.No.130/2011 on the file of the II Additional Senior Civil

Judge and Additional MACT-VI, Chitradurga ('the Tribunal' for

short) dismissing the claim petition answering issue No.1 as

negative.

2. The parties are referred to as per their original

rankings before the Tribunal to avoid the confusion and for the

convenience of the Court.

3. The factual matrix of the case is that the injured filed

the claim petition under Section 166 of the Motor Vehicles Act,

1988 ('MV Act' for short) claiming compensation of

Rs.10,00,000/- contending that when the petitioner was going

on the left side of the road towards his land near

Vrushabendrappa's kana at Chikkalagatta Village, all of a sudden

the driver of a tractor-trailer bearing registration No.KA-16-TA-

1884-1885 drove the same in a rash and negligent manner with

high speed and dashed against the petitioner. As a result, he fell

down and sustained injuries. Immediately, he was shifted to

Bapuju Hospital, Davanagere wherein he took treatment as an

inpatient for 15 days and further he took treatment at Kasturba

Hospital for 20 days. He was subjected to surgery and on

account of the injuries, he has suffered permanent disability.

4. The claim petition was opposed by respondent Nos.1

and 2 by filing written statement contending that the said

accident was occurred due to the negligence act of the petitioner

himself. He has colluded with the police officers and created the

documents and filed a false claim petition. However, admitted

that the policy was in force. Respondent No.2 in its objection

statement contended that the petitioner was traveling in the

tractor-trailer and fell down from the said vehicle. Since no

person is permitted to travel in this vehicle and the coverage is

only for driver, he is not liable to pay the compensation to the

petitioner.

5. The Tribunal while answering issue No.1 comes to

the conclusion that the documents Exs.R.1 and 2 i.e., admission

intimation and MLC register clearly discloses the fact that the

petitioner sustained injuries due to fall from the tractor. The

documents Exs.R.1 and 2 have been proved by examining

R.W.2, author of the document and it is clear that the petitioner

had sustained injuries due to fall from the tractor. It is also

observed that admittedly there is a delay of three days in

lodging the complaint. The Tribunal also observed that

immediately after the accident, the injured was taken to the

hospital and the claimant has proved the fact that he was

proceeding in the road and he has sustained the injuries. Hence,

answered issue No.1 as negative and dismissed the claim

petition.

6. Being aggrieved by the judgment and award of the

Tribunal, the claimant has filed this appeal before this Court.

7. The learned counsel for the appellant would

vehemently contend that it is not in dispute that the accident

was occurred and the Tribunal also comes to the conclusion that

the petitioner fell from the tractor. When such being the case,

the Tribunal ought not to have answered issue No.1 as negative

in coming to the conclusion that the accident has not been

proved. The learned counsel would contend that in Ex.P.10

discharge card, it is clearly mentioned that the injured was

admitted to hospital on 12.10.2010 with history of road traffic

accident and it is also stated that the petitioner was hit by the

tractor. But the Tribunal has not considered this document and

passed the judgment and award relying upon the documents

Exs.R1 and 2 and the same is bad in law. Hence, it requires

interference of this Court.

8. The learned counsel for the appellant in support of

his argument he vehemently contended that the Evidence Act is

not strictly applicable in case of claim petition filed before the

Tribunal. In support of his contention he relied upon the

judgment of the Apex Court in the case of SUNITA AND

OTHERS v. RAJASTHAN STATE ROAD TRANSPORT

CORPORATION AND OTHERS reported in (2020) 13 SCC

486, wherein it is held that in terms of Section 166 of the MV

Act, 1988, Tribunal stricto sensu is not bound by pleadings of

parties, and its function is to determine amount of fair

compensation. Claimants are merely to establish their case on

touchstone of preponderance of probability, and standard of

proof beyond reasonable doubt cannot be applied by Tribunal

dealing with motor accident cases. The Apex Court also held

that lower standard of proof, of preponderance of probabilities

applicable in tort matters, which include accident claim cases

under MV Act. The only defence raised by the respondent was

bald assertion that FIR was based on wrong facts and was filed

in connivance between appellant complainants and police, no

evidence was produced by respondents before Tribunal to prove

this point. Even if final outcome of criminal proceedings against

respondent No.2 is unknown, same would make no difference at

least for deciding claim petition under MV Act. Nature of proof

required to establish culpability under criminal law is far higher

than standard required under Tort Law to create liability.

9. Per contra, the learned counsel for the respondent

Insurance Company would contend that Regulation 28 of the

Rules of the Road Regulations, 1989 is clear that a driver when

driving a tractor shall not carry or allow any person to be carried

on tractor. The driver of goods carriage shall not carry in the

driver's cabin more number of persons than that is mentioned in

the registration certification and shall not carry passengers for

hire or reward.

10. The learned counsel also relied upon the Full Bench

judgment of this Court in the case of GADHILINGAPPA AND

ANOTHER v. K. GULEPPA AND OTHERS reported in 2021

SCC Online KAR 12137, wherein it is held that it does not

cover the risk of a person who is carried in the mud guard of the

tractor and the Insurance Company is not liable to pay the

compensation. The learned counsel would contend that the

pleadings of the claimant is very clear that he was proceeding on

the road and the tractor hit the appellant/claimant and the

Insurance Company was able to prove the fact that he fell from

the tractor. The Tribunal relying upon Exs.R.1 and 2 comes to

the conclusion that the claimant has not proved the accident in

answering issue No.1. The learned counsel would contend that it

is nothing but fraud on the Insurance Company.

11. The learned counsel also relied upon the judgment of

the Apex Court in the case of NORTH WEST KARNATAKA

ROAD TRANSPORT CORPORATION v. GOURABAI AND

OTHERS reported in (2009) 15 SCC 165, wherein the Apex

Court observed that Ex.R1 establishes that the injuries sustained

were not on account of any vehicular accident.

12. Having heard the arguments of the learned counsel

for the appellant and the learned counsel for the respondents

and also analyzing the principles laid down in the judgments

referred supra and also on perusal of the records, the point that

arise for the consideration of this Court is:

(i) Whether the Tribunal has committed an error in dismissing the claim petition in answering issue No.1 as negative?

13. Having considered the pleadings, no doubt the

claimant in the claim petition has contended that he was

proceeding as a pedestrian and the tractor hit him. It is the

specific contention of the Insurance Company that the injured

fell from the tractor. Having perused the defence, it is not in

dispute that the injured had sustained injuries on account of the

accident, but the claimant twisted the facts of the case while

narrating the manner of the accident. The Insurance Company

also not disputed the accident and took the defence that the

accident was on account of fall from the tractor. The Tribunal

failed to consider the specific defence raised by the Insurance

Company and the Insurance Company does not dispute the fact

of the accident and relies upon the document Exs.R.1 and 2.

Exs.R1 and 2 clearly discloses that the history was given that it

was fall from tractor. The claimant has relied upon Ex.P.10

discharge summary wherein history is mentioned as road traffic

accident as contended by the learned counsel for the appellant.

14. The judgment of the Apex Court in the case of

Gourabai (supra) relied upon by the Insurance Company is not

applicable to the facts of the case on hand. In the said reported

case the injured had suffered injures in the house itself and the

injured did not sustain any injury in any accident involving the

bus of the Corporation. The deceased had sustained head injury

due to fall from the height of 8 to 10 feet of his own house. But

in the case on hand, the factual aspects is different and

admittedly the injured has suffered the injuries on account of

involvement of the vehicle in the accident. Though it is

contended that he was hit by tractor, the Tribunal relying upon

the documents of Exs.R.1 and 2 comes to the conclusion that he

fell from the tractor. When such being the case, the Tribunal

ought not to have answered issue No.1 as negative. The issue is

whether the petitioner had sustained injuries in the alleged road

traffic accident on 12.10.2010 at about 1 p.m. near

Vrushabendrappa's kana, at Chikkalagatta Village, due to rash

and negligent driving of the driver of the tractor-trailer bearing

registration No.KA-16-TA-1884-1885. I have already pointed

out that the accident is not in dispute and place of accident is

not in dispute, but facts of the case are twisted. When he had

sustained injuries on account of the accident and when the

Insurance Company took the defence that he fell from the

tractor which was involved in the accident, the Tribunal ought

not to have answered issue No.1 as negative and ought to have

answered issue No.1 as affirmative as the accident is not

disputed and only manner of the accident has been disputed.

Hence, it requires interference of this Court.

15. No doubt, the Insurance Company has relied upon

the Full Bench decision of this Court and also relied upon

Regulation 28 of the Rules of the Road Regulations, 1989 and

these are the aspects which have to be considered while

considering the matter on merits with regard to fastening of the

liability and the same cannot be considered while considering

issue No.1. It is open to the Insurance Company to urge the

said ground before the Tribunal while considering the matter on

merits. I have already pointed out that the Apex Court in the

judgment in the case of Sunita (supra), has categorically held

that in terms of Section 166 of the MV Act, Tribunal stricto sensu

is not bound by pleadings of parties, and its function is to

determine amount of fair compensation. Claimants are merely

to establish their case on touchstone of preponderance of

probability, and standard of proof beyond reasonable doubt

cannot be applied by Tribunal dealing with motor accident cases.

The Apex Court considering Section 166 and 173 of the MV Act

held that lower standard of proof, of preponderance of

probabilities applicable in tort matters, which include accident

claim cases under MV Act.

16. Having considered the principles laid down in the

judgment referred supra and also the factual aspects of the case,

the Tribunal has committed an error in answering issue No.1 as

negative and failed to take note that issue No.1 is with regard to

the accident. I have already pointed out that the accident is not

disputed and only manner of accident is disputed. When such

being the facts and circumstances of the case, the very

impugned order is liable to be set aside. The matter requires to

be remanded to the Tribunal to consider the other issues i.e.,

issue No.2 regarding the entitlement of compensation and what

should be the quantum and the same is payable from whom.

17. In view of the discussions made above, I pass the

following:

ORDER

(i) The appeal is allowed.

      (ii)    The impugned judgment and award of the
              Tribunal   dated     23.08.2012    passed   in
              M.V.C.No.130/2011 is set aside.

(iii) The matter is remanded to the Tribunal to consider the matter afresh in view of the observations made by this Court.

(iv) This is the matter of the year 2011 and hence the Tribunal is directed to dispose of the matter within six months from today.

(v) The respective learned counsel are directed to assist the Tribunal to dispose of the matter within the stipulated time.

(vi) The parties are directed to appear before the Tribunal on 28.06.2021 without expecting any notice.

(vii) The Registry is directed to transmit the records to the concerned Tribunal, forthwith.

Sd/-

JUDGE

MD