Karnataka High Court
Sri Srinivasa Guptha vs Govindappa M V on 14 December, 2023
-1-
NC: 2023:KHC:45576
MFA No. 3602 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE C M JOSHI
MISCELLANEOUS FIRST APPEAL NO. 3602 OF 2019 (MV-I)
BETWEEN:
SRI SRINIVASA GUPTHA,
S/O NARAYANASHETTY,
AGED ABOUT 44 YEARS,
R/AT. NO.3562, 9TH MAIN,
4TH CROSS, BSK 2ND STAGE,
BANGALORE-70.
PERMANENT ADDRESS,
SRI SRINIVAS GUPTHA,
S/O NARAYANASHETTY,
AGED ABOUT 44 YEARS,
R/AT LINGADANAHALLY VILLAGE,
Y.N.HOSAKOTE HOBLI,
PAVAGADA TALUK,
TUMKUR DIST.
...APPELLANT
Digitally signed (BY SRI SHRIPAD V SHASTRI, ADVOCATE [V/C] )
by T S
NAGARATHNA
Location: High AND:
Court of
Karnataka
1. GOVINDAPPA M V,
S/O. LATE VENKATARAMANAPPA,
SRI VENKATESHWARA MOTOR SERVICE,
K.R.EXTENSION, MADUGIRI TOWN,
TUMKUR-572 132.
2. THE ORIENTAL INS. CO. LTD.,
REPT. BY ITS REGIONAL MANAGER,
BRANCH OFFICE NO.44/45, 3RD FLOOR,
LEO SHOPPING COMPLEX,
M.G.ROAD, (NEAR UTILITY BUILDING)
-2-
NC: 2023:KHC:45576
MFA No. 3602 of 2019
BENGALURU-560 001.
...RESPONDENTS
(BY SRI VIVEK.S, ADVOCATE FOR R1 [V/C];
SRI B.C. SHIVANNE GOWDA, ADVOCATE FOR
SRI A.M VENKATESH, ADVOCATE FOR R-2 [V/C])
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 02/11/2018, PASSED IN MVC
NO.3270/2017, ON THE FILE OF THE XIII ADDITIONAL JUDGE,
COURT OF SMALL CAUSES AND MEMBER, MACT, BENGALURU
(SCCH-15), DISMISSING THE CLAIM PETITION FOR
COMPENSATION.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT AND COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY THROUGH VIDEO CONFERENCING AT
KALABURAGI, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is directed against the judgment and
award dated 02-11-2018 passed in MVC No.3270/2017 by
the learned XIII Additional judge, Court of Small Causes
and Member, MACT, Bengaluru (SCCH 15) wherein the
claim petition filed by the petitioner came to be dismissed.
2. It is the case of the petitioner that, on 30.04.2017
at about 8.10 a.m. when he was standing near Pavagada
New Bus stand, Pavagada town, the driver of the Bus
bearing Reg.No.KA-64-0459 came in reverse in a rash and
negligent manner from back without giving signal and
NC: 2023:KHC:45576
dashed to the petitioner. As a result, the petitioner fell
down and sustained grievous injuries and a case was
registered by the Pavagada Police in Cr.No.96/2017. The
petitioner has taken treatment in Pavagada Government
Hospital and later shifted to A.R. Ortho Centre, Hindupur
and he has spent Rs.2,00,000/- towards medical expenses
and incidental charges. It was further contended that,
petitioner was aged 42 years, doing business and earning
a sum of Rs.30,000/- per month and now due to the
accidental injuries, he was not attending regular work and
respondent No.1 being the owner and respondent No.2
being the insurer of the Bus bearing Reg.No.KA-64-0459
are jointly and severally liable to pay the compensation
and prayed to award adequate compensation.
3. On issuance of the notice to the respondents,
respondents have appeared through their respective
counsels and filed their objections to the main petition.
4. Respondents No.1 and 2, have not disputed the
ownership of the Bus bearing Reg.No.KA-64-0459 and that
NC: 2023:KHC:45576
the 2nd respondent was the insurer of the said bus, but
denied remaining averments in the petition.
5. Respondent No.1 contended that the said bus was
duly insured with the 2nd respondent and policy was valid
at the time of accident and hence if the petitioner is
entitled to any compensation, the same has to be
indemnified by the 2nd respondent and prayed to dismiss
the petition.
6. Respondent No.2 -Insurance Company contended
that the driver of bus was not having valid and effective
D.L. at the time of accident, the accident has taken place
due to the negligence of the petitioner himself and there is
delay in lodging the complaint and the insured vehicle was
not involved in the alleged accident. Hence, prayed to
dismiss the petition.
7. On the basis of the above pleadings, the Tribunal
framed appropriate issues for its consideration and
petitioner examined himself as PW1 and marked Exs.P1 to
NC: 2023:KHC:45576
P9, 12 and 13 and one witness has been examined as
PW2 and marked Exs.P10 and P11 in the evidence.
Respondent No.2 examined Dr. Shree Rangegowda as
RW1 and marked Ex.R1 and also examined its official S.
Manjunath as RW2 and marked Exs.R2 and 3 in the
evidence.
8. The Tribunal after hearing the learned counsel for
both the sides and considering the oral and documentary
evidence available on record dismissed the claim petition
holding that petitioner has failed to establish that he
sustained injuries in the accident.
9. Being aggrieved by the said judgment and award,
the petitioner has approached this Court in appeal.
10. On issuance of notice, respondent Nos. 1 and 2
have appeared through their respective counsel and the
Tribunal records have been secured and heard the
arguments on both the sides.
NC: 2023:KHC:45576
11. The learned counsel appearing for the appellant-
petitioner has contended that the Tribunal has dismissed
the claim petition on the ground that there is a delay in
filing the FIR and that the MLC register extract produced
at Ex.R1 show that the word 'assault' has been scratched
and the word 'RTA' has been inserted at a later point of
time and therefore, there exists a doubt in respect of the
nature of the alleged accident. He contends that RW1, who
is the author of MLC Register extract has stated that he
himself had rectified the error in the MLC Register and
therefore, there exists a clear explanation by RW1-Dr.
Sree Rangegowda. He further submits that the petitioner
has explained as to why there was a delay in filing the
complaint. He has stated that he was having daughters
only at his home and therefore, when he was taken to the
A.R. Ortho Centre, Hindupur, there was none else who
could file a complaint. It is submitted that initially the
petitioner was taken to hospital at Pavagada and later, he
was shifted to Hindupur for further treatment and
therefore, there appears to be delay in filing the complaint
NC: 2023:KHC:45576
and the said delay has been sufficiently explained by the
petitioner. Therefore, he contends that the Tribunal erred
in holding that the word 'assault' mentioned in the MLC
Register extract being scratched and later 'RTA' has been
written cannot be a ground to disbelieve the accident
when the Investigation Officer has investigated the matter
and ultimately filed the chargesheet. He submits that,
there is no evidence regarding the nexus or connivance
between the petitioner and respondent No.1. Therefore,
he sought for grant of adequate compensation to the
petitioner.
12. Per contra, the learned counsel appearing for
respondent No.2-Insurance Company has contended that
PW.1 admit in the cross-examination that there is delay in
filing the complaint and moreover, the time of the accident
as mentioned in the MLC Register extract differs from the
say of PW1 in the evidence. Therefore, it is not the
scratching of the word 'assault' in the MLC register extract
alone which was the reason for disbelieving the case of the
NC: 2023:KHC:45576
petitioner. He states that there are multiple reasons on
which the Tribunal came to the conclusion that there is
doubt in respect of the alleged accident and therefore, it
was proper for the Tribunal to reject the claim of the
petitioner. He further states that there is an admission by
PW1 that there was no fracture, but it was only a crush
injury and whereas, the Wound Certificate says that there
was no such crush injury. Hence, he has defended the
impugned judgment of the Tribunal.
13. In the light of the above submissions, the points
that arise are:
A. Whether the petitioner has proved
involvement of the bus owned by respondent No.1
and insured by respondent No.2 in the said
accident?
B. Whether the Tribunal erred in not
appreciating the evidence in the proper perspective
and not awarding the compensation to the
petitioner?
NC: 2023:KHC:45576
Re.Point A:
14. A perusal of testimony of PW1 discloses that, it
is the case of the petitioner that on 30-4-2017 at about
8-10 a.m. while he was standing in the New Bus Stand of
Pavagada, the bus bearing No.KA.64.0459 came in reverse
and dashed to the petitioner, left tyre of the bus ran over
the foot of the petitioner and he sustained the crush
injuries. He states that he was shifted to Pavagada
Government Hospital and later he was shifted to A.R.
Ortho Centre, at Hindupur for higher treatment. In the
cross-examination, it is elicited that after getting down
from the bus he was receiving the change from the
Conductor and at that time the accident occurred. He
states that there was no fracture, but he has clarified that
there was a crush injury. Obviously, the crush injury
included the fracture of the ankle also. It was suggested
that there was accident on his own negligence, which he
has denied. In the further cross-examination, it is
suggested that the injuries occurred in some galata, but
- 10 -
NC: 2023:KHC:45576
not in the road traffic accident. It is pertinent to note that
there is also explanation elicited in the cross-examination
regarding the delay in filing of the complaint. He hails from
a village in Pavagada taluk and he has three daughters
and none were in the house as his daughters were with
him at Hindupura and therefore, there is a delay in filing
the complaint.
15. A perusal of the FIR produced by the petitioner as
Ex.P1 discloses that the complaint was filed by the
daughter of the petitioner on 3-5-2017. In the complaint,
there is explanation that she was engaged in providing
treatment to her father at Hindupura Hospital and
therefore, she could not lodge the complaint immediately.
It is also relevant to note that in the FIR the time of the
accident is clearly mentioned as '8.30 a.m.' and it is stated
that her father had left his village Lingadahalli at 6.30
a.m. It is also relevant to note that after investigation, the
Investigating Officer had filed the chargesheet as per
Ex.P5 on the bus driver.
- 11 -
NC: 2023:KHC:45576
16. The discharge summary and other records of AR
Orthopedic Hospital, Hindupura, show that the petitioner
has reported about the road traffic accident. However, the
number of the vehicle and the manner in which the
accident occurred was not recorded by the hospital. It is
also pertinent to note that the Discharge Summary
produced also shows that the accident had occurred at
7.30 a.m.
17. Further, respondent No.2-Insurance Company
has examined the Doctor of Pavagada Government
Hospital as RW1. Through him, Ex.R1 which is the extract
of the MLC Register was marked. The testimony of RW.1-
Dr.Shree Rangegowda, discloses that he is working as
Children Specialist in Government Hospital, Pavagada. He
produced the MLC Register extract at Ex.R1, the original of
which was verified by the Tribunal. He states that he is the
author of Ex.R1 and he has forwarded the police
information to the concerned jurisdictional police. He
admits that the word 'assault' was struck and the word
- 12 -
NC: 2023:KHC:45576
'RTA' was inserted. It is pertinent to note that there was
no explanation that was elicited as to why he has struck
out the word 'assault' and written as 'RTA'. RW.1 was not
cross examined by the Insurance Company. There was
nothing to show that the word 'RTA' is not written by him.
It was not suggested to RW.1 that the insertion of the
letters was not 'RTA' by him but by somebody else.
18. Further, he was cross-examined by the learned
counsel for the petitioner and he has stated that whatever
is written in Ex.R1 is as per the information furnished by
the patient. He has also admitted that usually there would
be crowd in the hospital and due to stress, he might have
mentioned the word 'assault' initially and later it was
written as 'RTA'. The perusal of Ex.R1 discloses that
initially, the date is mentioned as '30-4-2016' and later it
was written as '30-4-2017'. Further, it is mentioned that
"H/o. History of alleged RTA at 6.30 a.m." Before the
word 'RTA', the 'assault' has been written and it has been
scratched. It was noted that there is compound fracture of
- 13 -
NC: 2023:KHC:45576
ankle of right side and there is compound fracture of right
side and the patient was referred to higher center.
19. From the perusal of the above evidence, it is
clear that the scratching of the word 'assault' was by none
else than RW.1. The Tribunal, in the impugned judgment
has noted that the scratching of the word 'assault' is not
initialed by anybody and also that the word 'RTA' is not in
the handwriting of RW.1. The said observation by the
Tribunal that the word 'RTA' is not in the handwriting of
RW.1 is not supported by any such contention by
respondent No.2-Insurance Company. Evidently, the
comparison of the handwriting in Ex.R1 by the Tribunal is
not with respect to any admitted document. Even though
there was no such contention by respondent No.2-
Insurance Company, as may be seen from the
examination of RW.1 was not elicited from him. It is also
pertinent to note that the Tribunal unnecessarily ventured
into comparing the handwriting of RW.1. When such a
contention was not taken up by respondent No.2 and when
- 14 -
NC: 2023:KHC:45576
such a contention was not suggested to RW.1, it was not
right on the part of the Tribunal to venture into comparing
the handwritings. It is also necessary to note that the
wound certificate produced by the petitioner at Ex.P4, is
also very much in the handwriting of RW.1. In Ex.P4 also,
the history is shown as alleged RTA. In Ex.P4, initially the
date is mentioned as '30-4-2016' and later it was
mentioned in the next paragraph as '30-4-2017'. Similarly,
in Ex.R1 also, it was written as '2016' and then it was
rectified as '2017'. Thus, it is evident that RW.1 has the
habit of writing '2016' instead of '2017'. This aspect was
never looked into by the Tribunal and it appears that
unnecessarily has ventured into comparing the
handwritings.
20. It is therefore, necessary to note that, in Ex.R1,
the entire line "H/o alleged 'assault' has been scratched
and the word RTA 6.30 a.m.." is written in single go. The
word 'RTA' cannot be construed to be insertion at later
point of time. If that is so, there would have not been any
- 15 -
NC: 2023:KHC:45576
space for writing 'RTA'. Therefore, this Court is unable to
appreciate the observation of the Tribunal. It was never
the contention of respondent No.2-Insurance Company
that the word 'RTA' was inserted at later point of time and
even though such contention was raised at the time of
argument, it no where finds a place in the testimony of
RW.1. Therefore, it was not safe for the Tribunal to
venturing into the comparison of the handwriting in the
absence of any admitted documents. Though the
provisions of the Evidence Act, provide a comparison to be
made by the Court itself, such a measure has to be
exercised cautiously and the Courts should be resist from
encroaching into the domain of an Expert. Under these
circumstances, this Court is of the view that the said
observations of the Tribunal are not justifiable.
21. It is pertinent to note that there is a sufficient
explanation by PW.1 regarding delay in filing of the
complaint and such explanation also finds a place in the
complaint which is at Ex.P1. Under these circumstances,
- 16 -
NC: 2023:KHC:45576
when the entire investigation is not rebutted by the
Insurance Company, this Court holds that the conclusions
of the Tribunal that there exists a doubt regarding the
accident cannot be accepted. Consequently, this Court
holds that the accident had occurred involving the bus
owned by respondent No.1 and insured by respondent
No.2. Point No.A is answered accordingly.
Re.Point-B
22. The Tribunal has framed an issue regarding
quantum of compensation and the liability to be fastened.
It is trite law that when an issue has been framed by the
Tribunal, the same has to be answered by it. The Tribunal
very conveniently did not enter into the discussion on
issue No.2. When an issue was framed regarding the
compensation, it was the duty of the Tribunal to assess
the compensation on the basis of the evidence available on
record. Thus, it is evident that the Tribunal has erred in
not assessing the compensation to be awarded to the
- 17 -
NC: 2023:KHC:45576
petitioner, even though, it had answered issue No.1 in
negative.
23. Though this Court would have remanded the
matter to the Tribunal to answer issue No.2, it would be
an exercise which would consume the judicial time. When
the evidence is available on record, this Court being the
Court of First Appeal, is having ample powers to assess
the evidence and determine the compensation payable.
24. Evidently, the petitioner has not contended that
there is any disability to him. There is no such assessment
of the disability of the petitioner though he had sustained
the fracture of the ankle and he has stated that he is
unable to perform his duties as earlier. A perusal of the
hospital records produced through PW.2, who is an official
of the hospital shows that there was crush injury of the
right knee and the foot and wound debridment was done.
The records also reveal that there were crushes in the
ankle joint. After the wound debridment and surgeries,
POP was applied. The treatment appears to be
- 18 -
NC: 2023:KHC:45576
conservative in nature. The petitioner was inpatient in A.R.
Ortho Centre from 13-4-2017 to 6-5-2017. Thereafter, he
had visited the hospital as outpatient and such outpatient
record is also found along with the case sheet produced
by PW2 at Ex.P11. It is evident from the hospital bills also
that, he was inpatient for the above mentioned period.
25. Considering the nature of the injuries, it would
be just and proper to award a compensation of
Rs.40,000/- under the head of 'pain and sufferings'. The
photograph of the petitioner is produced at Ex.P12.
Though it is difficult to accept that the petitioner has to
walk with clutches, it can be said that the petitioner has
to bear the brunt of the injuries for the rest of his life.
Therefore, a sum of Rs.40,000/- awarded to him under the
head of 'loss of amenities in life'. The petitioner has
produced the medical bills and the statement of the bills is
not available on record. On a broad assessment of the
medical bills, the petitioner is entitled for a sum of
Rs.81,000/- under the head of 'medical expenses'.
- 19 -
NC: 2023:KHC:45576
26. It has come in the evidence that, the daughters
of the petitioners were looking after him in the hospital
and he took treatment at Hindupur which is Andhra
Pradesh and nearer to Pavagada. Therefore, a sum of
Rs.20,000/- is an adequate compensation under the head
of 'conveyance, attendant charges, nourishment etc'.
27. The petitioner states that he was a businessman
and there is no material on record to show his income. The
petitioner was aged about 45 years as per the medical
records and 40 years as per the Aadhar card produced at
Ex.P26, it can be safely be said that he was earning a sum
of Rs.8,000/- per month. The nature of the injuries
suggest that he would be unable to resume his work
atleast for a period of five months and therefore, a sum of
Rs.40,000/- would be a proper and adequate
compensation under the head of 'loss of earning during the
laid up period.' Hence, the petitioner is entitled for a total
compensation of Rs.1,95,000/- under the following heads:
- 20 -
NC: 2023:KHC:45576
Pain and sufferings Rs. 40,000/-
Loss of income during the Rs. 40,000/-
laid up period
Conveyance, nourishing food Rs. 10,000/-
and attendant charges
Loss of amenities Rs. 40,000/-
Medical expenses Rs. 81,000/-
Total Rs.2,11,000/-
28. For the aforesaid reasons the insurance
Company is liable to pay the compensation to the
petitioner and the points raised by this Court are answered
accordingly and the appeal deserves to be allowed. Hence,
the following:
ORDER
(i) The appeal filed by the petitioner is
allowed.
(ii) The judgment and award passed in MVC
No.3270/2017 on 02-11-2018 by the Tribunal
is hereby set aside. The petitioner is entitled for
a compensation of Rs.2,11,000/- along with
interest at the rate of 6% p.a. from the date of
- 21 -
NC: 2023:KHC:45576
petition till the date of deposit before the
Tribunal.
(iii) The respondent No.2-Insurance
Company is directed to deposit the compensation
amount within a period of six weeks from today.
(iv) In the event of deposit of the
compensation, the entire amount is ordered to
be released to the petitioner on proper
identification.
Sd/-
JUDGE
tsn*
