Jagadish S/O Sidram Teli vs Basalingappa S/O Saubanna Uppar ...
2022 Latest Caselaw 3546 Kant

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          IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

       DATED THIS THE 3RD DAY OF MARCH, 2022

                        BEFORE

     THE HON'BLE MR.JUSTICE ASHOK S. KINAGI

               MFA No.32437/2012 (MV)
                          C/W
               MFA No.32438/2012 (MV)

In MFA No.32437/2012
Between:
Jagadish S/o Sidram Teli,
Aged about 26 years, Occ: Coolie,
R/o Indira Nagar,
Bijapur-586101.
                                       ... Appellant
(By Sri Sanganagouda V. Biradar, Advocate)
And:
1.     Basalingappa S/o Saubanna Uppar,
       Age: 44 years, Occ: Business,
       R/o Hire Rugi, Tq: Indi,
       Dist: Bijapur-586101.

2.    The Branch Manager,
      Oriental Insurance Co., Ltd.,
      Bijapur-586101.
      (Policy No.2008/3663
      The amount collected on 14.11.2007)
                                        ... Respondents
(By Sri S.S.Aspalli, Advocate for R2;
 V/o dated 03.08.2021 notice to R1 is held
 sufficient)
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       This Miscellaneous First Appeal is filed under Section
173(1) of the MV Act praying to set aside the judgment
and award dated 24.11.2011, passed by MACT-II at
Bijapur, in MVC No.1389/2008 and consequently allow the
appeal by awarding compensation as claimed by the
appellant in the Court below.



In MFA No.32438/2012
Between:
Shantappa S/o Aravind Saba,
Aged about 32 years, Occ: Coolie,
R/o Indira Nagar, Bijapur-586 101.
                                       ... Appellant
(By Sri Sanganagouda V. Biradar, Advocate)
And:
1.     Basalingappa S/o Saubanna Uppar,
       Age: 44 years, Occ: Business,
       R/o Hire Rugi, Tq: Indi,
       Dist: Bijapur-586101.
2.    The Branch Manager,
      Oriental Insurance Co. Ltd.,
      Bijapur-586101.
      (Policy No.2008/3663
      The amount collected on 14.11.2007).
                                        ... Respondents
(By Sri S.S.Aspalli, Advocate for R2;
 Notice to R1 is held sufficient v/o dated
 23.11.2018)
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      This Miscellaneous First Appeal is filed under Section
173(1) of the MV Act praying to set aside the judgment
and award dated 24.11.2011, passed by MACT-II at
Bijapur, in MVC No.1390/2008 and consequently allow the
appeal by awarding compensation as claimed by the
appellant in the Court below.

      These appeals coming on for Hearing, this day, the
Court delivered the following:-


                        JUDGMENT

These appeals under Section 173(1) of the Motor

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

for short) are filed by the claimants being aggrieved

by the common judgment and award dated

24.11.2011 passed in MVC Nos.1389/2008 and

1390/2008 by the Motor Accident Claims Tribunal and

Fast Track Court-I/II, Bijapur.

2. For the sake of convenience, parties are

referred to as per their ranking before the Claims

Tribunal. Appellants are the petitioners and

respondents are the respondents before the Tribunal.

3. Facts giving rise to filing of these appeals

briefly stated are that on 15.11.2007 while the

petitioners were traveling in Auto bearing registration

No.KA-28-A-0361 at about 14.00 hours, near Almel

village, on Almel-Devangaon road, the driver of the

said auto drove the same in a rash and negligent

manner and being unable to control the vehicle,

turned turtle the same. Due to which, the petitioners

sustained injuries. Immediately after the accident,

the petitioners were shifted to Dr. Sandeep Hospital,

Almel and thereafter, petitioners were shifted to City

Hospital, Solapur, wherein they were treated for the

injuries sustained in the road traffic accident.

Petitioners have spent huge amount for the treatment.

3.1. Hence, the petitioners filed claim petitions

under Section 166 of the MV Act seeking

compensation for the injuries sustained in the road

traffic accident.

3.2. Respondent No.1 filed written statement

denying the averments made in the claim petitions

and specifically contended that auto in question was

insured with respondent No.2 and policy was in force

as on the date of the accident and as such,

compensation, if any, shall be indemnified by

respondent No.2/Insurance company.

3.3. Respondent No.2/Insurance company filed

written statement denying the averments made in the

claim petitions and also admitted that the auto in

question was insured with it. Respondent No.2 denied

the age, income and occupation of the petitioners. It

is also contended that the driver of the auto was not

possessing valid and effective driving licence as on the

date of the accident and prayed for dismissal of the

claim petitions.

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

the Claims Tribunal framed the following issues:

MVC No.1389/2008:

i. Whether the petitioner proves that, on 15-11-2007 at about 14-00 hours, near Almel village, on Almel-Devanagaon road, the road traffic accident took place due to the actionable negligence of the driver of the Autorickshaw bearing Reg.No.KA-28/A-0361 by which petitioner sustained injuries?

ii. Whether the Petitioner is entitled for compensation? If so, what amount and from whom?

   iii.        What order or award?



          MVC No.1390/2008:





     i.     Whether the petitioner proves that, on

15-11-2007 at about 14-00 hours, near Almel village, on Almel-Devanagaon Road, the road traffic accident took place due to the actionable negligence on the driver of the Auto Rickshaw bearing Reg.No.KA-28/A-0361 by which the petitioner sustained injuries?

ii. Whether the Petitioner is entitled for compensation? If so, what amount and from whom?

iii. What order or award?

5. In order to prove the case, petitioner in

MVC No.1389/2008 was examined as PW-1 and in

order to prove the disability, examined the doctor as

PW-2 and petitioner in MVC No.1390/2008 was

examined as PW-3. Petitioners got marked

documents as Ex.P1 to Ex.P14. The Tribunal, after

recording the evidence of the petitioners has held that

the petitioners have failed to prove that they have

sustained injuries in the road traffic accident which

occurred on 15.11.2007 and consequently, dismissed

the claim petitions filed by the petitioners. Hence, the

present appeals are filed.

6. Heard the learned counsel for the

petitioners and learned counsel for the respondent-

Insurance company.

7. Learned counsel for the petitioners submits

that the Tribunal has committed an error in dismissing

the claim petition in MVC No.1389/2008 solely on the

ground that in Ex.P4, it is mentioned that the

petitioner was admitted in the hospital on 15.10.2007

but not on 15.11.2007. There is discrepancy in

mentioning the month. Based on Ex.P4, the Tribunal

has rejected the claim petition. He further submits

that petitioner in MVC No.1390/2008 was examined as

PW.3 however, the Tribunal has recorded finding that

the petitioner has not come forward to give evidence

in order to substantiate the contention putforth in the

claim petition. The said observation is contrary to the

records. On these grounds, he prays to allow the

appeals.

8. Per contra, learned counsel for respondent

No.2-Insurance Company supports the impugned

judgment and award passed by the Tribunal. He

submits that the Tribunal was justified in dismissing

the claim petitions filed by the petitioners as the

petitioners have not placed any material to show that

they have sustained injuries in the road traffic

accident. On these grounds, he prays for dismissal of

the appeals.

9. Perused the records and considered the

submissions of the learned counsel for the parties. It

is not in dispute that the accident has occurred on

15.11.2007. Petitioner in MVC No.1389/2008 was

admitted to Dr. Sandeep Hospital, Almel. He has

issued Ex.P4. In Ex.P4 the doctor has written date of

admission to the hospital as 15.10.2007 instead of

15.11.2007. Petitioner has produced Ex.P6-Discharge

card issued by City Hospital, Solapur, which discloses

that the petitioner was admitted to the City Hospital,

Solapur on 15.11.2007 and also produced reports and

prescriptions. From perusal of the records produced

by the petitioner in MVC No.1389/2008, it would

indicate that the petitioner has sustained injuries in

the road traffic accident. Further, in order to prove

that the petitioner has sustained injuries in the road

traffic accident, petitioner has produced copy of FIR,

complaint, spot panchanama and MVI report which are

marked as Exs.P1 to P4. Perusal of the same would

disclose that the accident has occurred on 15.11.2007

and the petitioner has sustained injuries in the road

traffic accident. Therefore, the Tribunal has

committed an error in rejecting claim petition solely

on the ground that in Ex.P4 the doctor has mentioned

the date of admission of the petitioner to the hospital

as 15.10.2007 and there is discrepancy in mentioning

the month. The Tribunal without considering the

subsequent records produced by the petitioner has

wrongly recorded finding.

10. Though petitioner has produced other

documents which have been marked as Exs.P6 to P14,

there is no cross-examination of these documents by

respondent No.2. The Tribunal ought to have

accepted the documents produced by the petitioner

i.e., Exs.P6 to P14, on the contrary, merely relying on

Ex.P4, the Tribunal has proceeded to dismiss the claim

petition. Further, in order to establish that the

petitioner has suffered disability, he examined the

doctor as PW.2 who has issued disability certificate as

per Ex.P14. The doctor stated that the petitioner has

suffered disability at 20% to 25%. From perusal of

the records, it is clear that the petitioner has suffered

permanent disability, but this Court assesses the

disability to an extent of 5%. But in the course of

cross-examination, PW.2 has categorically admitted

that without going through the medical records he has

issued the disability certificate. When that is the

position, question of considering the evidence of PW.2

does not arise. In view of the same, considering the

nature of the injuries sustained by the petitioner, this

Court feels that the petitioner is entitled for global

compensation of Rs.1,50,000/-.

11. Insofar as petitioner in MVC No.1390/2008

is concerned, the Tribunal has rejected the claim

petition solely on the ground that the petitioner was

not examined. In fact, the petitioner has entered into

witness box and he was examined as PW.3. But, in

support of his contention, he has not examined any

doctor to prove the disability. In the absence of

medical records to show that he has suffered

permanent disability, this Court feels that, at the

most, petitioner is entitled for global compensation of

Rs.25,000/-.

12. In view of the above discussion, I proceed

to pass the following:

ORDER

The appeals are allowed in part.

The judgment and award dated 24.11.2011 passed by the Tribunal in MVC Nos.1389/2008 and 1390/2008 are set aside. The claim petitions in MVC Nos.1389/2008 and 1390/2008 are allowed in part. Petitioner in MVC No.1389/2008 is entitled for a sum of Rs.1,50,000/- along with interest at the rate of 6% p.a. from the date of filing of the claim petition till the date of

realization. Petitioner in MVC No.1390/2008 is entitled for a sum of Rs.25,000/- along with interest at the rate of 6% p.a. from the date of filing of the claim petition till the date of realization.

However, the petitioners in both the cases are not entitled to interest for the delay period of 288 days in filing the above appeals as per order dated 03.08.2021.

            Respondent             No.2,         Insurance
      Company        is   directed       to   deposit   the

compensation amount along with interest, within a period of eight weeks from the date of receipt of copy of this judgment.

The Tribunal is directed to release the entire compensation amount in favour of the petitioners.

Sd/-

JUDGE NB*