Karnataka High Court

Ningappa S/O Shekappa Kambar vs Rajashekar S/O Basavanneppa ... on 14 September, 2022

Bench: H.P.Sandesh

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                                                           MFA No. 25678 of 2011




                         IN THE HIGH COURT OF KARNATAKA, DHARWAD
                                                BENCH

                         DATED THIS THE 14TH DAY OF SEPTEMBER, 2022

                                               BEFORE
                             THE HON'BLE MR JUSTICE H.P.SANDESH
                    MISCELLANEOUS FIRST APPEAL NO. 25678 OF 2011
                                                (MV-I)
                    BETWEEN:

                    1.    SRI.NINGAPPA S/O SHEKAPPA KAMBAR,
                          AGE: 38 YEARS, OCC: AGRICULTURE AND ,BLACKSMITH
                          (NOW NIL),R/O: KALABHAVI, TALUK: BAILHONGAL.,
                          DIST: BELGAUM

                                                                        ...APPELLANT

                    (BY SRI. HANAMANT R LATUR, ADVOCATE)

                    AND:

                    1.    SRI.RAJASHEKAR S/O BASAVANNEPPA AJJAPPANAVAR,
                          AGE: 43 YEARS, OCC: BUSINESS,R/O: BALLUR, TALUK:
                          BAILHONGAL.

                    2.    SHRI.RAJU S/O GANGADHAR KADAKOL,
                          AGE: 38 YEARS, OCC: BUSINESS,KITTUR, TALUK:
                          BAILAHONGAL. DIST: BELGAUM

       Digitally
       signed by
                    3.    THE DIVISIONAL MANAGER,
John   John Doe
       Date:
                          NATIONAL INSURANCE CO. LTD.,DIVISIONAL OFFICE
Doe    2022.09.19
       12:18:46
                          RAMDEV GALLI,BELGAUM.
       +0530

                                                                   ...RESPONDENTS
                    (BY SRI. M.K.SOUDAGAR, ADVOCATE FOR R3,
                    NOTICE TO R1 & R2 SERVED)
                                  -2-




                                         MFA No. 25678 of 2011

     THIS MFA IS FILED U/SEC.173(1) OF MV ACT, AGAINST
JUDGMENT      AND     AWARD      DTD:18-10-2011,      PASSED   IN
MVC.NO.1302/2008 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
MEMBER, ADDL. MACT, BAILHONGAL, DISMISSING THE PETITION
FILED U/SEC.166 OF IMV ACT.

     THIS APPEAL COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:


                            JUDGMENT

Heard learned counsel for the parties.

2. This appeal is filed by the claimant challenging

the dismissal of claim petition filed under Section 166 of

Motor Vehicles Act by judgment and award dated

18.10.2011 passed in MVC No.1302/2008 on the file of the

Senior Civil Judge and Additional MACT, Bailhongal

(hereinafter referred to as 'the Tribunal' for short).

3. Brief facts of the case are as under:

A claim petition came to be filed under Section 166

of the Motor Vehicles Act contending that the claimant met

with an accident on 15.02.2008 at 10.00 a.m. on

Bailhongal-Munavalli road near Hosur bus stand within the

MFA No. 25678 of 2011

limits of Hosur village, within the limits of Murgod police

station in view of the negligent driving of the truck bearing

No.26/730 and as a result he had suffered permanent

disability and he was also shifted to hospital, wherein he

took treatment and he was inpatient for 23 days and thus

sought for awarding compensation.

The claim petition was resisted by filing written

statement by the Insurance Company denying the age,

occupation an nature of injuries sustained by the claimant

and took the contention that truck neither caused the

accident and nor is concerned with the injuries sustained

by the claimant.

In order to substantiate the case of the claimant, he

examined himself as PW.1 and got marked documents as

Exs.P.1 to P.50 and also examined doctor as PW.2 and

PW.3 is an witness to the accident. On the other hand,

Insurance Company examined one witness as RW.1, who

conducted the investigation on behalf of the company and

got marked documents as Exs.R.1 to R.18.

MFA No. 25678 of 2011

The Tribunal after considering the material on record,

comes to the conclusion that the claimant failed to prove

the accident, however quantified the compensation

considering the material on record and dismissed the claim

petition. Being aggrieved by the same, the claimant is in

appeal.

4. The main contention of the learned counsel for

the claimant is that the accident has taken place on

15.02.2008 at 10.00 a.m. and father-in-law of the

claimant had lodged the complaint on 16.02.2008 at 6.00

p.m. and MLC was made immediately after the injured was

taken to the hospital. The claimant examined himself as

PW.1 and eyewitness as PW.3 and submits that

documentary evidence clearly disclose that after the

registration of the case, investigated and charge sheet is

also filed against the driver of the truck and all these

documents though marked, the Tribunal has not

considered the same.

MFA No. 25678 of 2011

5. Counsel further contends that the Insurance

Company has not challenged the complaint, FIR and

charge sheet and the witness who has been examined on

behalf of Insurance Company also admitted that they have

not challenged the same. When such being the case, the

Tribunal ought not to have disbelieved the case of the

claimant. Counsel also contends that in a case of

accidental claim, the Apex Court held that strict proof of

accident is not necessary in accidental claims as in

criminal trial material has to be placed before the Court

high standard which have passed this principle has not

considered by the Tribunal.

6. Counsel submits that the compensation

awarded by the Tribunal is very meager and only taken

income of Rs.3,500/- and he has suffered disability of 85%

and Tribunal has only taken 50% and it ought to have

taken income of Rs.6,000/- since he was working as

blacksmith.

MFA No. 25678 of 2011

7. On the other hand, learned counsel for

Insurance Company submits that the Tribunal while

dismissing the petition, given reasoning and particularly in

para No.36 onwards in detail discussed material

contradictions in the statement of PW.3 and also in the

evidence of PW.1 and rightly comes to the conclusion that

material placed before the Court does not inspire

confidence of the Court and comes to the conclusion that

there is inconsistency in the statement given by the

father-in-law of the claimant, who is the complainant and

also in the statement of PW.3. Counsel also submits that

the complainant has not been examined before the

Tribunal and hence, there is no merit in the contention of

the claimant and merely because the driver admitted guilt

and made payment of fine is not a ground to reverse the

finding of the Tribunal.

8. Counsel in respect of quantum of compensation

is concerned, contends that the Tribunal while assessing

the disability taken note of nature of injuries suffered by

MFA No. 25678 of 2011

the claimant and also taken note of income at Rs.3,500/-

and accident has occurred in 2008 and hence, it does not

require any interference in respect of quantum of

compensation is concerned.

9. In view of the factual aspects, the following

point would arise for consideration:

1. Whether the Tribunal has erred in dismissing

the claim petition by accepting the contention

of respondent and whether it requires

interference?

2. Whether the Tribunal has erred in not

awarding just and reasonable compensation?

3. What order?

10. Regarding point No.1: Having heard the learned

counsel for parties and on perusal of the material on

record, the claimant in claim petition specifically pleaded

that on 15.02.2008 accident has taken place and

immediately he was taken to Government Hospital,

MFA No. 25678 of 2011

wherein doctor was not there and therefore he was shifted

to private hospital, wherein he took treatment for 23 days.

PW.1 reiterated the same in his evidence in the form of

affidavit and got marked Exs.P.1 to P.44. He was

subjected to cross-examination. In the cross-examination

he admits that he has studied up to PUC and during the

accident his elder brother Basavaraj and Ashok were there

with him. In a bus he has reached Hosur village. His elder

brother came to bus stand to send him and he intended to

reach Bailhongal. The place of accident is not a heavy

traffic area. The truck dashed to his right shoulder and the

truck was carrying passengers after the accident truck was

stopped for two minutes and left the place. The driver of

the truck never came to him and public who were there

near the bus stand never made effort to stop the truck.

His elder brother informed the registration number of

truck. Subsequent to the accident driver of the truck never

met him. After the accident he lost conscious and shifted

to Government Hospital and thereafter to private hospital

but he does not know of the person who accompanied his

MFA No. 25678 of 2011

elder brother, who shifted to the hospital but he claims

that reasons for the injuries are narrated before the

doctor. On the next date of accident, no complaint was

filed. His wife and father-in-law took care in the hospital

and after admission only through telephone Basavaraj and

Ashok intimated about the accident but he does not know

about filing of the complaint but doctor never advised him

to file a complaint. His father-in-law had lodged the

complaint.

11. It is suggested that for some other reasons he

has suffered injuries and took treatment with Dr.B.F.Patil

and the same was denied. Doctor has been examined as

PW.2.

12. The claimant also examined PW.3 and PW.3

claims that he was waiting near the bus stand in order to

go to Bailhongal and claimant was also standing near the

bus stop and truck came and dashed against the claimant

and immediately the injured was taken to Government

Hospital wherein doctor was not there and hence he was

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MFA No. 25678 of 2011

shifted to private hospital. He says that a person

representing Insurance Company came and told him that

they have to sanction the amount to injured and his

statement is required and hence he took signature on

blank paper and when he refused to sign on the blank

paper, he insisted and obtained his signature. He was

cross examined.

13. In the cross-examination, PW.3 also admits that

he has studied up to PUC ad he admits that petitioner is

his distant relative. The petitioner never met him before

the accident. He never saw the registration number of

offending vehicle. The offending vehicle truck was red and

white in colour. Immediately after the accident 25-30

people gathered near the place of accident and none of

them have made any efforts to stop the vehicle.

Immediately after the accident shifted the injured to

Government Hospital and doctor was not present and

hence he was shifted to private hospital. He himself, his

brother in a vehicle shifted the petitioner to Mahantashetty

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MFA No. 25678 of 2011

Hospital. He admits that he does not know about filing of

complaint and also name of complainant. After shifting him

to the hospital he returned to his house and he never

made any efforts to file any complaint.

14. Respondent also examined one witness as RW.1

and he is an advocate and investigator and he claims that

he visited the spot of alleged accident and filed

comprehensive report. It is also his evidence that he has

recorded statement of some of the witnesses and also

marked Exs.R.1 to R.17. He was subjected to cross-

examination. In the cross-examination, he admits that

respondent No.2 pays his investigation fee and also admits

that he being paid by respondent No.2, he is bound to

protect the interest of respondent No.2 and his duty is to

collect police papers with respect to accident, statement of

witnesses, driver, insured of the vehicles involved in the

accident. He admits that during 2008 accident has taken

place and further admits that on 06.01.2011, 09.01.2011

and 26.12.2010 he has recorded the statement of

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MFA No. 25678 of 2011

witnesses and also admits that he do not know till date

respondent No.2 never challenged filing of charge sheet.

He also admits that he has not recorded statement of

respondent No.2-owner of the vehicle, but he went to the

address of respondent No.2 but he failed to secure him.

15. Having considered both oral and documentary

evidence, PW.1 claims that he met with an accident on

account of rash and negligence on the part of the driver of

the truck and case has been registered on the next date

based on the complaint lodged by father-in-law of claimant

and police have investigated the matter and filed charge

sheet. Admittedly, charge sheet has not been challenged

and apart from that investigator who conducted the

investigation, who is examined as RW.1 in his cross-

examination he categorically admits that accident was

taken place in 2008 and he recorded statement of

witnesses on 06.01.2011, 09.01.2011 and 26.12.2010 i.e.

almost after three years of accident.

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MFA No. 25678 of 2011

16. It is also important to note that when the

vehicle was involved in the accident, he has not recorded

the statement of respondent No.2 i.e. owner of the vehicle

and owner of the vehicle is the right person to speak

whether the vehicle was met with an accident or not, but

he claims that he made efforts to secure him but he could

not secure him. He admits that respondent No.2 is

resident of Somawar Peth, Kittur village. It has to be

noted that investigating officer is an advocate, who

collects the statement of witnesses before the police.

Admittedly, he has collected the statement of witnesses,

but he has recorded the statements after three years of

accident, but not examined owner of the vehicle. When

such being the case, no doubt the documents i.e.

statement of witnesses were recorded by him as per

Ex.R.9 to Ex.R.15. PW.3 allegedly gave statement before

the RW.1 claims that he came and took the signature on

blank paper and in order to prove the factum of these

statements, none of the persons who have given the

statement allegedly before the RW.1 were not examined

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MFA No. 25678 of 2011

before the Tribunal and police have investigated the

matter and filed charge sheet and statements of these

witnesses i.e. Ex.R.9 to Ex.R.15 were not proved by

examining those witnesses and apart from that the very

driver of the vehicle pleaded guilty and when he has

pleaded guilty no doubt it is settled law that merely

because he pleaded guilty the same cannot be accepted as

gospel truth but the same has to be rebutted by leading

rebuttable evidence and except examining the alleged

investigator who conducted the investigation after three

years of accident and allegedly recorded the statement, no

other witnesses have been examined. Hence, the Tribunal

committed an error in accepting the version of RW.1.

17. The fact that accident was occurred on the

previous day and complaint was given on the very next

day and explanation is also given that they were providing

treatment to the injured and hence there was a delay of

one day in lodging the complaint. When such explanation

is also given, the same is not rebutted and in the cross-

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MFA No. 25678 of 2011

examination of PW.1 nothing is elicited to disbelieve the

case of the claimant and apart from that in the evidence of

PW.3 also nothing is elicited and he categorically says that

both of them were standing near the bus stop and vehicle

came and dashed. No doubt he admits that he never seen

the registration number of the vehicle, but the offending

truck colour was red and white and PW.1 says that the

offending truck was red in colour and in order to disbelieve

the evidence of PWs.1 and 3, nothing worthwhile is elicited

in their cross-examination and Tribunal committed an

error in accepting the version of Insurance Company

believing the evidence of RW.1 who conducted

investigation and recorded statements after three years of

accident and not recorded the statement of owner of the

vehicle. Though he claims that he made efforts to record

the statement of owner but he failed to secure him and

even though Insurance Company failed to rebut the

evidence of the claimant and Tribunal committed an error

in considering the contradictions in the evidence of PW.1

and also statement of witnesses and statement of

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MFA No. 25678 of 2011

witnesses have not been proved by examining any of

those witnesses. Hence, point No.1 is answered in

affirmative.

18. Regarding point No.2: The Tribunal has

committed an error in coming to the conclusion that

accident has not been proved. The injured was

immediately taken to the hospital and he was inpatient for

23 days and the medical evidence is also not rebutted by

examining any of the witnesses by the Insurance

Company. Under these circumstances, the very approach

of the Tribunal is erroneous.

19. Now coming to the quantum of compensation is

concerned, the claimant relied upon the evidence of doctor

who is not a treated doctor and according to him he has

suffered disability of 85% to whole body since he has

suffered injuries of fracture of vertebra D12 and he has

assessed the disability based on the wound certificate,

summary sheet and previous x-rays and found

compression fracture of D12 vertebra. On physical

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MFA No. 25678 of 2011

examination he found he has great 4/5 power in lower

limbs and bilateral foot drop. He has got disabilities of

paaparesis 75%, sensatiory impairment in feet 25% and

baldder and bowl involvement 25%. He was subjected to

cross-examination. In the cross-examination he admits

that as on 25.01.2010 he never underwent any MRI scan

and on 25.01.2010 he has treated the petitioner as an

outpatient. Subsequent to 22.02.2008 to 24.01.2010 he

neither saw him nor treated him and he examined

clinically and physically. He admits that in terms of

guidelines issued by Government of India he has assessed

the disability. He admits that neurological disability should

not exceed 100%. He admits that his findings are not

based on MRI scan.

20. Having considered the evidence of PW.2, in the

cross-examination he admits that the petitioner was not

subjected to any MRI scan and also admits in the cross-

examination that his findings are not based on MRI scan

but he claims that disability certificate is based on clinical

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MFA No. 25678 of 2011

and neurological examination and in between 22.02.2008

up to 24.01.2010 he has not treated him and accident has

taken place in 2008 and till assessment he has not seen

him and treated him.

21. When such being the case, the Tribunal has

rightly taken 50% disability instead of 85% as deposed by

PW.2-doctor and the very contention of appellant's counsel

that disability taken at 50% is on lesser side cannot be

accepted when answers are elicited from the mouth of

PW.2-doctor and when first of all he is not a treated doctor

and also his findings are not based on any MRI scan and

only on clinical examination he has given findings.

However, the Tribunal has taken only income of

Rs.3,500/-. It is an accident of the year 2008 and notional

income would be Rs.4,250/-. The multiplier would be 15

considering the age of the claimant. Hence, the

compensation payable on the head of loss of future

earnings would be as under:

Rs.4,250 x 12 x 15 x 50% = Rs.3,82,500/-

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MFA No. 25678 of 2011

22. The claimant was in hospital for 23 days and

quantum of compensation awarded on other heads i.e.

pain and suffering, Rs.80,000/- has been granted. Having

considered the nature of injures and fracture of D12

vertebra, Rs.80,000/- awarded is just and reasonable.

Towards medical expenses Rs.56,124/- is awarded and

the same is based on documentary evidence. On the head

of attendant charges and nourishment, the Tribunal has

awarded Rs.12,500/- and since the claimant was inpatient

for 23 days, it requires enhancement of Rs.10,000/-. i.e.

Rs.22,500/- on the said head. Towards loss of income

during laid up period, the Tribunal has awarded

Rs.84,000/- and the same is just and reasonable

considering the nature of injuries sustained by the

claimant. Award of Rs.50,000/- towards loss of amenities

is also just and reasonable. The Tribunal has awarded

Rs.10,000/- towards future medical expenses and he