Karnataka High Court

Mr. Sudheer Kumar vs Mr. Manoj Kumar on 17 March, 2021

Author: Alok Aradhe Prasad

                         1




IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 17TH DAY OF MARCH 2021

                      PRESENT

       THE HON'BLE MR.JUSTICE ALOK ARADHE

                        AND

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

           MFA NO.5623 OF 2016(MV)

BETWEEN:

Mr. Sudheer Kumar,
S/o Raghunath Amin,
Aged about 52 years,
Sneha Nilaya,
Near Kulshekara Jyothi Nagar,
Mangaluru Taluk.
                                     .... Appellant
(By Sri. P.Karunakar, Advocate)

AND

1.    Mr. Manoj Kumar,
      S/o Janardhan M.,
      Adult,. Businessman,
      R/at D.No. 24-4-285,
      Fernandes Compound,
      Near Umamaheshwari Temple,
      Attavara,
      Mangaluru Taluk.
                            2




2.   The Branch Manager,
     United India Insurance Co. Ltd.,
     Motor Dealers Division,
     6th Floor, Krishi Bhavan,
     Narupatunga road,
     Hudson Circle,
     Bengaluru.
                                          ...Respondents
(By Sri.Lakshminarasappa, Advocate for
Sri. A,M,Venkatesh, Advocate for R2:
Notice to R1 is dispensed with
v/o dated:22.01.2021)


      This MFA is filed under Section 173(1) of MV Act
against the judgment and award dated:11.12.2015
passed MVC No.698/2014 on the file of the I
Additional Senior Civil Judge, MACT, Mangaluru, D.K.,
partly allowing the claim petition for compensation
and seeking enhancement of compensation.

      This MFA coming on for admission, through video
conference, this day, H.T.Narendra Prasad J.,
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 11.12.2015 passed

by the Motor Accident Claims Tribunal, Mangaluru,

D.K. in MVC No.698/2014.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 16.12.2013 at about 8.15

p.m. the claimant was walking by the side of the road

near Batrakodi, Neermarga, Mangaluru. At that time,

Innova car bearing registration No.KA-19/MC-8069

being driven by its driver at a high speed and in a

rash and negligent manner, dashed against 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 working as

Neon-artist in Saudi - Arabia and was earning

Rs.50,000/- p.m. It was pleaded that he also 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

filed written statement in which the averments made

in the petition were denied. The age, avocation and

income of the claimant and the medical expenses are

denied. It was pleaded that the petition itself is not

maintainable against the respondent. It was further

pleaded that the accident was due to the negligence

by the claimant himself. It was further pleaded that

the driver of the offending vehicle was not holding a

valid and effective driving licence as on the date of the

accident. It was further pleaded that the quantum of

compensation claimed by the claimant is exorbitant.

Hence, he sought for dismissal of the petition.

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 claimant himself was

examined as PW-1 and Accounts Assistant of Unity

Hospital as PW-2 and got exhibited 11 documents

namely Ex.P1 to Ex.P11. On behalf of the

respondents, no witness was examined but got

exhibited insurance policy as Ex.R1. The Claims

Tribunal, by the impugned judgment, inter alia, held

that the accident took place on account of rash and

negligent driving of the offending vehicle by its driver,

as a result of which, the claimant sustained injuries.

The Tribunal further held that the claimant is entitled

to a compensation of Rs.3,79,592/- 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

submitted has raised the following contentions:

Firstly, due to the accident claimant has suffered

head injury. Due to that injury he was unable to do

his day today work. The Tribunal has not granted any

compensation for 'loss of earning due to disability' on

the ground that the claimant has not examined the

doctor.

Secondly, if the matter is remanded back to the

Tribunal and opporurtnity is given the claimant shall

examine the treated doctor or any other doctor

toassess the disability. In support of his contentions,

he relied on a judgment of this Court in the case of

'IQBALAHAMED vs. VICE CHAIRMAN, M/S. PATEL

INTEGRATED LOGISTICS LTD. AND ANOTHER' ILR

2017 KAR 3045. Hence, he sought for allowing the

appeal.

7. On the other hand, the learned counsel for

the Insurance Company has raised the following

contentions:

Firstly, since the claimant has not established

that he has suffered any disability and he ha not

examined the doctor, there is no loss of income due to

injuries suffered by the claimant. The Tribunal has

rightly not granted any compensation for 'loss of

income due to disability'.

Secondly, if the matter is remanded back to the

Tribunal to give an opportunity to the claimant, the

Insurance Company is not liable to pay interest for the

delayed period. Hence, he sought dismissal of the

appeal.

8. We have considered the submissions made

by the learned counsel for the parties and have

perused the records.

9. It is not in dispute that the claimant

suffered injuries in the road traffic accident occurred

due to rash and negligent driving of the offending

vehicle by its driver.

Due to the accident, the claimant has suffered

the following injuries:

(1) Multiple abrasion over the face on left side.

(2) Cerebral concussion.

(3) Cerebral edems with brain stem contusion (C.T.Brain)

(4) Sub Arachanold Haemorhage with gyral contusions.

(5) Acromio clavicular joint dislocation on left side.

(6) Multiple contusion over the left lung.

10. The claimant has produced the wound

certificate and discharge summary. Since he has not

examined the doctor the Tribunal has not granted any

compensation for 'loss of income due to disability'. A

Co-ordinate Bench of this Court in the case of

IQBALAHAMED (supra) has held that in cases

where the claimants are not able to examine the

doctor, who has issued disability certificate as a

witness, due to their poverty, illiteracy, ignorance

etc., a pro-active role needs to be adopted by the

Tribunal and the presence of the doctor is to be

ensured by the Presiding Officers by invoking the

powers under Section 165 of the Evidence Act, 1872.

Paragraph 8 of the said judgment is relevant and

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."

11. In view of the above circumstances, the

following order is passed:

The appeal is allowed. The judgment and award

dated 11.12.2015 passed by the Tribunal in respect of

quantum of compensation is set aside, in respect of

negligence and liability, the same is confirmed. The

matter is remanded back to the Tribunal for fresh

consideration 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