Karnataka High Court

Mr Saddam Baig vs Mr Srinivas G N on 26 May, 2022

Bench: H T Prasad

                          1




IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 26TH DAY OF MAY 2022

                       BEFORE

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

            MFA No.5012 OF 2018(MV)

BETWEEN

MR SADDAM BAIG
S/O RIYAZ BAIG
AGED ABOUT 28 YEARS,
RESIDING AT
MUGABALA VILLAGE & POST,
HOSAKOTE TALUK
BANGALORE RURAL DISTRICT
                                         ...APPELLANT
(BY SRI HARISH BABU K N, ADVOCATE)

AND

1.    MR SRINIVAS G N
      S/O NANJAPPA
      MAJOR
      (AGE NOT KNOWN TO THE APPELLANT)
      NO.42, GANGALU VILLAGE,
      KASABA HOBLI
      HOSAKOTE TALUK
      BANGALORE RURAL DISTRICT-562114

2.    THE BRANCH MANAGER
      IFFCO-TOKIO GENERAL
      INSURANCE COMPANY LTD.,
      KSCMF BUILDING, 3RD FLOOR,
                           2




    3RD BLOCK, NO.8,
    CUNNINGHAM ROAD,
    BANGALORE
                                       ...RESPONDENTS
(BY SRI B PRADEEP, ADVOCATE FOR R2;
NOTICE TO R1 IS DISPENSED WITH)

     THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED 14.02.2018 PASSED
IN MVC NO.7015/2016 ON THE FILE OF THE XXI
ADDITIONAL SMALL CAUSES JUDGE AND XIX ACMM,
MEMBER-MACT,     (SCCH-23),    BENGALURU,    PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.

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

                     JUDGMENT

This appeal under Section 173(1) of Motor

Vehicles Act, 1988 (hereinafter referred to as 'the

Act') has been filed by the claimant being aggrieved

by the judgment and decree dated 14.2.2018 passed

by MACT, Bangalore in MVC 7015/2016.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 25.7.2016, when the

claimant along with another were proceeding in car

bearing registration No.KA-53-C-2378 as inmates of

the car near Kodicharuvu Gate, Srinivasapur Taluk, at

that time, the driver of the said car drove the same at

a high speed and in a rash and negligent manner and

applied sudden brake and he lost control and the car

left the road and capsized on the side of the road. 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 claimant himself was

examined as PW-1 and got exhibited documents

namely Ex.P1 to Ex.P28. On behalf of the

respondents, neither any witness was examined nor

any document was produced. 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.170,377/- 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

sustained suture wound over right palm and

tenderness over T6 and T7. The injuries are grievous

in nature. He has suffered paraplegia. The Tribunal

has not rightly considered the injuries sustained by

the claimant and has granted meager compensation.

Hence, he sought for allowing the appeal.

7. On the other hand, the learned counsel for

the Insurance Company has contended that the

injuries sustained by the claimant are minor in nature.

He has not examined the doctor regarding the nature

of injuries sustained by him and disability suffered by

him. The Tribunal considering the materials available

on record has rightly awarded just and reasonable

compensation. Hence, he sought for dismissal of the

appeal.

8. Heard the learned counsel for the parties

and perused the records.

9. It is not in dispute that the claimant has

sustained 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 sustained suture wound over right palm and

tenderness over T6 and T7.

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 the present case, the claimant has not

examined the doctor regarding the nature of injuries

sustained by him and disability suffered by him.

13. 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.