Karnataka High Court
Mr Murugan T vs P Jayagovinda Bhat on 28 February, 2023
Bench: Dr.H.B.Prabhakara Sastry
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MFA No. 554 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
®
DATED THIS THE 28TH DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
MISCELLANEOUS FIRST APPEAL NO. 554 OF 2020 (MV-I)
BETWEEN:
MR. MURUGAN T
S/O THANGAVEL
AGED ABOUT 48 YEARS,
R/AT 295, SASTHRI NAGAR,
2 STREET KASIPALAYAM
ERODE RAILWAY COLONY,
ERODE, TAMILNADU
PIN-638002
...APPELLANT
(BY SRI. G. RAVISHANKAR SHASTRY, ADVOCATE)
AND:
1. P. JAYAGOVINDA BHAT
S/O. GOPALAKRISHNA BHAT,
Digitally signed
AGED ABOUT 58 YEARS,
by BANGALORE R/AT # 1-68, PERUVAJE HOUSE,
MADHAVACHAR
VEENA
Location: High
VITTAL MUDNOOR POST AND VILLAGE,
Court of BANTWAL TALUK, D.K. DISTRICT
Karnataka
PIN-574219
2. THE DIVISIONAL MANAGER
ORIENTAL INSURANCE CO. LTD.,
BEAUTY PLAZA, BALMATTA ROAD,
MANGALURU, D. K. DISTRICT
PIN-575001
...RESPONDENTS
(BY SRI.K. POORNABODHA RAO, ADVOCATE FOR R-2;
R-1 - SERVED AND UN-REPRESENTED)
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MFA No. 554 of 2020
****
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988,
PRAYING TO MODIFY/SET ASIDE THE JUDGMENT AND AWARD
DATED 05-07-2019 IN M.V.C.NO.1224/2017, PASSED BY THE I
ADDITIONAL DISTRICT JUDGE AND MACT-II, MANGALURU,
(DK) AND CLAIM PETITION BE ALLOWED AS PRAYED FOR BY
ALLOWING THIS APPEAL IN THE ENDS OF JUSTICE.
THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR
ADMISSION THROUGH PHYSICAL HEARING/VIDEO
CONFERENCING, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGME NT
The present appellant was the claimant in
M.V.C.No.1224/2017, before the I Additional District Judge
and Motor Accident Claims Tribunal-II, Mangaluru (D.K.),
(hereinafter for brevity referred to as "the Tribunal")
whose claim petition under Section 166 of the Motor
Vehicles Act, 1988 (hereinafter for brevity referred to as
"the M.V. Act") for compensation from the respondents
herein came to be dismissed as devoid of merit by the
Tribunal vide its impugned judgment and award dated
05-07-2019.
Aggrieved by the same, the claimant before the
Tribunal is before this Court through this appeal.
MFA No. 554 of 2020
2. The summary of the case of the claimant in the
Tribunal was that, on the date 19-01-2017, at about 9:00
a.m., when he was standing on the side of the road near
Kankanady Bus Stand at Mangaluru, the driver of a Bus
bearing registration No.KA-19/C-6864, driving the said
Bus in high speed and in a rash and negligent manner,
took the Bus in such a way so that its back wheel ran over
the left foot of the claimant, inflicting grievous injures
upon him. Immediately, the claimant was taken to the
Government Wenlock Hospital, Mangalore, where he was
treated as in-patient for a week and thereafter getting
himself discharged, he went to Erode at Tamil Nadu and
was treated as an in-patient in a local Hospital there.
Stating that at the time of accident, he was working as a
Coolie and earning a sum of `10,000/- per month and was
aged 45 years, however, due to the accident, he has lost
his future income and also incurred huge medical
expenses, the claimant has claimed a sum of `3,00,000/-
as compensation from the respondents No.1 and 2,
holding them as liable to pay him the compensation in
MFA No. 554 of 2020
their capacity as the owner and insurer of the alleged
offending Bus, respectively.
3. The Respondent No.1 (owner of the offending
Bus) failed to appear before the Tribunal, however, the
respondent No.2 (insurer of the offending Bus) appeared
before the Tribunal and filed its Written Statement,
wherein it has not only denied all the averments made by
the appellant (claimant before the Tribunal), but also
contended that it learnt that the claimant was trying to
cross the Road without observing the traffic rules and thus
was himself responsible for the alleged accident.
However, the second respondent (insurer) admitted that
the alleged offending motor vehicle Bus was insured with
it. It also took a specific contention that, as on the date of
the accident, the first respondent was not a policy holder.
4. Based on the pleadings of the parties, the
Tribunal framed the following issues for its consideration:
"1. Whether the petitioner proves that on
19.1.2017 at about 9.00 a.m., while he was standing
MFA No. 554 of 2020
on the side of the road near Kankanady Bus Stand,
Mangaluru taluk, a bus bearing Reg.No.KA.19/
C.6864 came with high speed in a rash and negligent
manner from Kankanady side and the back wheel of
the said bus passed over the left foot of the
petitioner and caused accident in which he sustained
grievous injuries due to the actionable negligence of
the driver of the said bus?
2. Whether the respondents prove that they
are not liable to pay compensation?
3. Whether the petitioner is entitled for
compensation? If so, what quantum and from whom?
4. what order or award?"
5. In support of his contention, the claimant got
himself examined as PW-1 and got marked documents
from Exs.P-1 to P-13. From the respondents' side, no
witness was examined, however, a copy of the policy was
got marked as Ex.R-1. The case sheet of Wenlock Hospital
was marked as Ex.C-1.
6. After hearing both side, the Tribunal vide its
impugned judgment answered issue No.1 in the negative
and issue Nos.2 and 3 as 'does not survive for
MFA No. 554 of 2020
consideration' and proceeded to dismiss the claim petition
filed by the claimant. Aggrieved by the same, the
appellant (claimant) is before this Court.
7. The Respondent No.1 (owner of the offending
Bus) though has been served with notice in the appeal, he
has remained un-represented. Respondent No.2 (insurer)
is represented by its counsel.
8. Though this matter is listed for Admission,
however, at the request of the learned counsels for the
parties, the matter is taken up for its final disposal.
9. The Trial Court records were called for and the
same are placed before this Court.
10. Heard the arguments from both side. Perused
the materials placed before this Court including the
memorandum of appeal, impugned judgment and also the
Trial Court records.
MFA No. 554 of 2020
11. Learned counsel for the appellant (claimant)
reiterated the grounds taken up by him in his argument
also.
12. Learned counsel for the respondent No.2
(insurer), who is appearing through video conference,
contended that, when the Tribunal has observed that the
claimant was intoxicated with alcohol, it has rightly held
that there is no negligence on the part of the driver of the
Bus. He further submitted that though the impugned
judgment sustains, however, in case if the Court finds
some merit to remand the matter to the Tribunal, in which
an event, the Tribunal also may be directed to consider
the stand taken up by the respondent No.2 - Insurance
Company in its Written Statement that, as on the date of
the accident, the first respondent (owner of the Bus) was
not a policy holder.
13. The claimant, as PW-1 has reiterated the
averments made in his claim petition even in his affidavit
evidence also. He has stated that on the date 19-01-2017,
MFA No. 554 of 2020
at about 9:00 a.m., while he was standing on the side of
the Road near Kankanady Bus Stand, Mangalore, a Bus
bearing registration No.KA-19/C-6864, being driven by its
driver in a rash and negligent manner from Kankanady
side, ran over his leg, which resulted in he sustaining
grievous injuries, i.e. fracture of the bones. In his
support, he has produced the certified copies of the
documents, i.e. FIR at Ex.P-1, complaint at Ex.P-2, Wound
Certificate at Ex.P-3, spot mahazar at
Ex.P-4, rough sketch at Ex.P-5, Motor Vehicle Inspector's
report at Ex.P-6 and charge sheet at Ex.P-7. He has also
produced the certified copy of the order sheet in
C.C.No.1559/2017 at Ex.P-8.
14. The Tribunal, while giving its reasoning on issue
No.1, has observed that the Wound Certificate at Ex.P-3
and the case sheet of the Wenlock Hospital, which was
summoned at the instance of the claimant and marked as
Ex.C-1, goes to show that, at the time of examination of
the claimant, there was a smell of alcohol. Thus it is
MFA No. 554 of 2020
observing that when the claimant was under the influence
of alcohol, at the time of the accident and also was
standing near the foot path, but leaving the foot path on
the edge of the road, no negligence can be attributed on
the part of the driver of the offending Bus. With the said
observation, the Tribunal held that since the negligence on
the part of the driver could not be established by the
claimant, the claimant is not entitled for any
compensation.
15. The learned counsel for the appellant (claimant)
in his argument submitted that, mere smelling of alcohol
cannot be a ground to hold that the accident in question
has taken place solely due to the negligence of the
claimant himself. He further submitted that, admittedly,
the occurrence of the road traffic accident is not in dispute
and the Police investigation records show that the Police
have filed the charge sheet against the driver of the
offending Bus for the offences punishable under Sections
279 and 338 of the Indian Penal Code, 1860 (hereinafter
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MFA No. 554 of 2020
for brevity referred to as "the IPC") and the said driver has
pleaded guilty and the matter came to be closed. Thus,
when the driver himself has pleaded guilty for the alleged
offences punishable under Sections 279 and 338 of the IPC
and was penalised accordingly and also PW-1 has led the
evidence to the effect of establishing the rash and
negligent driving on the part of the driver of the offending
Bus, the Tribunal was at an error in answering issue No.1
in the negative.
16. Per contra, learned counsel for respondent No.2
(insurer) in his argument submitted that, when the
claimant was under the influence of alcohol, at the time of
the accident and even according to him, when the back
wheel of the Bus has run upon his leg, no negligence on
the part of the driver of the Bus can be attributed, as
such, the Tribunal has rightly held that the claimant has
failed to prove the negligence on the part of the driver of
the alleged offending Bus.
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MFA No. 554 of 2020
17. At the outset, it has to be observed that, the
only respondent (insurer) before the Tribunal in the matter
which has filed its Written Statement, has not taken the
contention of the alleged intoxication of the
complainant(claimant) at the time of the alleged road
traffic accident, as such, what was not pleaded by the
parties, the Tribunal has attempted to notice on its own
and base its entire reasoning for rejecting the claim
petition of the claimant.
Secondly, no doubt, a perusal of the Wound
Certificate at Ex.P-3 mentions the presence of 'smell of
alcohol'. A mentioning to the same effect is also there in
the case sheet of the Wenlock Hospital which is marked as
Ex.C-1. The said observation, in the Wound Certificate,
except stating that there was smell of alcohol, no where
mentions as to whether the claimant who was a patient
before the examining Doctor was intoxicated with alcohol.
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MFA No. 554 of 2020
It is not even shown as to whether the alleged smell of the
alcohol was coming from the mouth of the alleged injured
person. As such, the source of the smell of the alcohol
whether was from the body of the injured or from the
dress worn by him, has not been mentioned by the Doctor.
However, the Tribunal assumed itself that mere
mentioning of the 'smell of alcohol' as the conclusive proof
of the claimant/patient consuming alcohol at the time of
the alleged road traffic accident.
Thirdly, assuming for a moment that, the claimant
who claims to be the injured in the road traffic accident in
question, was intoxicated or smelling with alcohol, but the
same cannot be an excuse for the driver of the offending
Bus for causing the road traffic accident, causing injuries
to the injured person. Even according to the Tribunal, it is
not its finding that, by consuming alcohol, the claimant
had fallen unconscious on the road and that he had
inadvertently moved his feet and put his left foot beneath
the back wheel of the offending Bus. On the contrary, the
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MFA No. 554 of 2020
Tribunal itself has observed that, he was standing on the
side of the road just next to the foot path. Thus, even
after taking that the claimant might have consumed liquor,
still, he was in such a position of controlling himself and
was able to stand properly on his legs. As such, any
contribution on the part of the claimant in the road traffic
accident also cannot be imagined or arrived at.
Fourthly, irrespective of the fact as to whether any
person or animal is behaving abnormally or improperly or
whether a person is intoxicated with liquor or not, it is the
primary duty of the driver of any Motor Vehicle to drive
the vehicle with utmost care and caution, that too,
particularly, in a public place like a Bus Stand, which in the
instant case is Kankanady Bus Stand at Mangaluru, which
is said to be one of the busiest Bus Stands in the region
where there is heavy movement of vehicles and large
number of public. Any driver of a Motor Vehicle, including
a passenger vehicle like the Bus in the instant case, is
required to be more cautious and careful while driving a
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MFA No. 554 of 2020
Bus. As such, even for the sake of argument, if it is taken
that the claimant was intoxicated with alcohol, it does not
give any permission for the driver to run the Bus on the
foot of that person.
Lastly, one of the reasons assigned by the Tribunal
is also that, as it is the back wheel of the Bus that is said
to have run over the foot of the claimant, no negligence
can be attributed on the part of the driver of the Bus. The
said reason assigned by the Tribunal is also not acceptable
for the reason that, a driver, while driving the vehicle,
would not consider the vehicle into two parts, as the front
part with front wheel and the back part with the back
wheel, which are under his control. When he drives the
vehicle, the whole vehicle is required to be under his
control and that he should drive the entire vehicle in such
a care and caution that it shall not lead to any untoward
incident like the road traffic accident as in the instant case.
It is such a care and caution that is expected of a driver of any
Motor vehicle. Therefore, no exception can be given that the
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MFA No. 554 of 2020
driver cannot be held as negligent when the back wheel of
a heavy passenger vehicle is said to have passed on the
leg of a pedestrian. In the instant case, it is nobody's case
that the pedestrian (claimant) was not noticed or observed
by the driver and that all of a sudden he came running and
fell beneath the back wheel of the Bus. On the other
hand, the case of the claimant, from the beginning, was
that, he was standing on the side of a Road. Thus, a
standing person was taken to be seen by the driver who
was driving a passenger Bus in the premises of a Bus
Stand, as such, he should have been more vigilant and
cautious in driving the said Bus. Therefore, the reasoning
given by the Tribunal that there was no negligence on the
part of the driver of the alleged offending Bus is not
acceptable.
18. In addition to the above, the contention taken
up by the appellant in the memorandum of appeal that the
driver of the offending Bus was charge sheeted for the
offences punishable under Sections 279 and 338 of the IPC
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MFA No. 554 of 2020
is corroborated with the documentary evidence at Ex.P-7
which is a copy of the charge sheet.
Further, the contention of the appellant that the
driver of the said vehicle pleaded guilty for the alleged
offences and was sentenced accordingly is also
corroborated by the certified copy of the order sheet in
C.C.No.1559/2017 which is marked at Ex.P-8. Thus, the
very pleading of guilt by none else than the driver of the
offending Bus himself would go to show that, he has
pleaded guilty for the offences punishable under Sections
279 and 338 of the IPC. This fact also was not taken into
consideration by the Tribunal. As such, the road traffic
accident, as alleged in the claim petition by the claimant,
is not only proved but also proved that the said road traffic
accident has occurred solely due to the rash and negligent
driving by the driver of the offending Bus bearing
registration No.KA-19/C-6864.
19. Since the Tribunal answering the issue No.1 in the
negative, has not answered issue Nos.2 and 3 with reasons
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MFA No. 554 of 2020
and in view of the fact that the said finding of the Tribunal
on issue No.1 also is now proved to be erroneous and the
said issue requires to be answered in the affirmative, I am
of the view that the matter requires to be remanded to
the Tribunal for its answering to issue Nos.2 and 3.
Needless to say that in the process, the Tribunal
would also consider one of the contentions taken up by the
respondent No.2 (insurer) before it in paragraph 12 of its
Written Statement that, as on the date of the road traffic
accident in question, the first respondent (owner of the
offending Bus) was not a policy holder.
Accordingly, I proceed to pass the following:
ORDER
[i] The appeal filed by appellant
(claimant) stands allowed in part;
[ii] The impugned judgment and award
dated 05-07-2019, passed by the I Additional
District Judge and Motor Accident Claims
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MFA No. 554 of 2020
Tribunal-II, Mangaluru (D.K.), in
M.V.C.No.1224/2017 stands set aside;
[iii] The matter stands remanded to the
Tribunal, for its fresh consideration, in
accordance with law, on the issues framed by it
with a direction to the Tribunal to proceed with
the trial from the stage of the argument on the
main petition;
[iv] Since the claim petition in the Tribunal
being of the year 2017, as such, one of the old
matters, it is appreciated if the Tribunal disposes
of the matter at the earliest, but not later than
six months from today;
[v] To enable the Tribunal to expedite the
matter in that regard, both side parties are
directed to appear before the Tribunal on the
date 27-03-2023 at 11:00 a.m., without
anticipating any fresh notice or summons from
it.
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MFA No. 554 of 2020
Registry to transmit a copy of this judgment along
with the Trial Court records, to the concerned Tribunal,
immediately.
Sd/-
JUDGE
BMV*
