Karnataka High Court
Kallappa S/O Channappa Anad @ ... vs Moulasab S/O Hussainsab ... on 23 May, 2023
Bench: M.G.Umapresided Bymguj
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MFA No. 21371 of 2012
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 23RD DAY OF MAY, 2023
BEFORE
THE HON'BLE JUSTICE M.G.UMA
MISCELLANEOUS FIRST APPEAL NO. 21371 OF 2012
(MV)
BETWEEN:
KALLAPPA S/O CHANNAPPA ANAD @ ANADAD,
AGE: 58 YEARS,
OCC: AGRICULTURE AND BUSINESS,
R/O. KUSUGAL,
TQ: HUBLI NOW RESIDING AT NAVALUR,
TQ: DHARWAD.
...APPELLANT
(BY SRI. SHAILA BELLIKATTI, ADVOCATE)
AND:
1. MOULASAB S/O HUSSAINSAB AGASANALLI,
AGE: MAJOR, OCC: OWNER OF HERO HONDA,
R/O. GANGADHAR NAGAR, KUSUGAL,
TQ: HUBLI, DIST: DHARWAD.
Digitally signed
by VINAYAKA B
V
Location: HIGH
2. NATIONAL INSURANCE CO. LTD.,
COURT OF DIVISIONAL OFFICE SUJATA COMPLEX,
KARNATAKA
DHARWAD P.B. ROAD, HUBLI.
...RESPONDENTS
(BY SRI. VEENA HEGDE FOR R2, ADVOCATE;
NOTICE TO R1 IS SERVED)
THIS MFA FILLED UNDER SECTION 173(1) OF MV ACT,
AGAINST THE JUDGMENT AND AWARD DTD: 15.12.2011
PASSED IN MVC. NO. 985/2009 ON THE FILE OF THE
PRESIDING OFFICER, FAST TRACK COURT - III, AT DHARWAD,
DISMISSING THE PETITION FILED U/SEC. 166 OF MV ACT &
ETC.
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MFA No. 21371 of 2012
THIS MFA, COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The appellant-claimant being aggrieved by the judgment and
award dated 15.12.2011 passed in M.V.C. No. 985/2009 by the
learned Fast Track Court-III, Dharwad, (hereinafter referred to as
the Tribunal), is before this Court.
Parties shall be referred to as per their rank before the
Tribunal.
2. Brief facts of the case are as follows:
On 02.09.2009 at about 23.30 hours the petitioner was
returning to his home at Byahatti-Kusugal road, near Kumbar Oni.
At that time, the rider of the motorcycle bearing reg. no. KA-25/EC-
6766 came in a rash and negligent manner and dashed to the
petitioner causing him the injuries. Petitioner was taken to KIMS
Hospital, Hubli and admitted as indoor patient from 03.09.2009 to
15.09.2009. Petitioner contended that he was working in
agricultural fields and doing business thereby earning Rs.7,000/-
per month. Due to the accident he sustained fracture of his right
leg and other injuries. Hence sought for compensation.
MFA No. 21371 of 2012
Upon service of notice, respondent No.1 did not appear
before the Court and was placed exparte.
Respondent No.2-Insurer of the offending vehicle filed its
objection denying the accident, age, income, occupation and
amount spent by the petitioner towards treatment. A false
complaint was lodged after lapse of 12 days from the date of
alleged accident and thus prayed for dismissal of the petition.
3. On the basis of these pleadings of the parties, the Tribunal
framed the following issues.
1. Whether the petitioner proves that he has sustained
injuries in RTA that occurred on 02.08.2009 at about
23.30 hours, due to the rash and negligent driving of
the driver of the Hero Honda Motorcycle bearing Reg.
No. KA-25/EC-6766?
2. Whether the petitioner proves that he is entitled for any
compensation? If so, what amount and from whom?
3. What decree or order?
4. In support of his case, the petitioner got himself examined as
PW1 and got examined the Doctor as PW2. He got marked
documents as per Exs.P.1 to P.16. On the other hand, the
MFA No. 21371 of 2012
respondent No.2 did not examine any witness, however, got
marked the insurance policy as Ex.R.1.
5. The Tribunal answered point no.1 in the negative; point no.2
holding that it does not survive for consideration. Ultimately, the
Tribunal dismissed the claim petition. Being aggrieved by the
judgment of the Tribunal, the claimant is before this Court.
6. I have heard Smt. Shaila Bellikatti, learned counsel for the
appellant and Smt. Veena Hegde, learned counsel for the
respondent No.2 and perused the impugned judgment and the
original records.
7. Learned counsel for the appellant contended that the
petitioner was aged 55 years and was an agriculturist, he met with
an accident on 02.09.2009 due to the rash and negligent riding of
the motorcycle by one Ashpak Ahmed, who is arrayed as accused
and later chargesheeted. Immediately after the accident, injured
was shifted to the hospital and treated as inpatient for about 15
days. In the meantime, he learnt from the neighbours that it was
the respondent No.1 to whom the motorcycle belonging and that
the rider had ridden it in a rash and negligent manner and caused
MFA No. 21371 of 2012
the accident. Therefore, he lodged the first information with the
Police against the offending vehicle. Therefore, there was delay in
lodging the first information. The petitioner has examined himself
as PW1 and also examined the Doctor as PW2. Medical bills were
also produced before the Tribunal wherein at the initial stage, a
case of RTA wass mentioned and MLC was registered. Inspite of
that, the Tribunal proceeded to dismiss the petition solely on the
ground that there was delay in lodging the first information. The
Tribunal has not considered the oral and documentary evidence
that are placed before the Court. Therefore, the impugned
judgment and award passed by the Tribunal is erroneous and the
same is liable to be set aside.
8. Learned counsel further submitted that when the matter is
pending before this Court, the claimant was permitted to adduce
additional evidence. Accordingly, PW3 was examined. PW3 was
an eyewitness to the incident and categorically stated regarding the
involvement of the offending vehicle and riding of the motorcycle in
a rash and negligent manner which resulted in the accident.
Accordingly, she prays for allowing the appeal in the interest of
justice.
MFA No. 21371 of 2012
9. Per contra, learned counsel for the respondent No.2-insurer
opposing the application submitted that an attempt was made to
contend that the vehicle belonging to respondent No.1 caused the
accident, but no materials are placed before the Court to
substantiate the same. The inordinate delay in lodging the first
information which is not explained. Even though respondent No.2
has not denied the factum of accident, the petitioner has not proved
involvement of the vehicle in question. Under such circumstances,
the Tribunal was right in dismissing the petition. Even though
additional evidence was led by the petitioner before this Court by
examining PW3, it is only an after thought and the same cannot be
considered at this stage. Hence, prayed for dismissal of the
appeal.
10. On the basis of the above, the point that would arise for
consideration in this appeal is:
Whether the impugned judgment and award passed by the
Tribunal requires interference by this Court?
11. My answer to the above point is in the affirmative for the
following reasons.
MFA No. 21371 of 2012
12. It is the specific contention of the claimant-appellant that
respondent No.1 was the owner of the motorcycle bearing No. KA-
25/EC-6766. Its rider ridden it in a rash and negligent manner and
dashed to the claimant as a result of which he sustained fracture of
both bones of his right leg. Even though the accident had occurred
on 02.09.2009 the first information was lodged on 13.09.2009.
There is a delay of about 11 days in filing the first information.
13. The claimant produced Ex.P.6 the wound certificate issued
by the KIMS Hospital, Hubli, according to which the claimant being
injured, was admitted to the hospital on 03.09.2009 at 1.30 a.m.
The case was registered as MLC and it is stated that the injury was
due to road traffic accident. Therefore, at the initial stage,
immediately after the accident the injured was shifted to the
hospital where he informed that he sustained injury due to road
traffic accident. Additional evidence was adduced before this Court
by examining PW3 who is stated to be the eyewitness to the
incident. This witness categorically stated regarding involvement of
the vehicle belonging to respondent no.1 who was riding it in a rash
and negligent manner. Even though he was subjected to cross
examination, nothing has been elicited to disbelieve his version.
MFA No. 21371 of 2012
Admittedly, the charge sheet was filed by the Investigating Officer
against the rider of the motorcycle for having caused the accident.
The claimant has produced FIR, vehicle seizure panchanama,
Motor Vehicle Accident Report and the charge sheet filed by the
I.O. which substantiate the contention of the claimant regarding
causing of the accident. Therefore, I am of the opinion that the
claimant is successful in proving the accident as contended by him.
14. The claimant produced Ex.P.6, the wound certificate,
according to which he had sustained fracture of both bones of right
leg. He was admitted to the hospital on 03.09.2009 and
discharged on 15.09.2009. The injuries are grievous in nature. He
has also produced the discharge card as per Ex.P.8. X-ray report
referred to in the discharge card discloses that the injured has
sustained communited fracture of right distal 1/3rd tibia and fibula.
K-wire was fixed to fibula of right leg on 12.09.2009. Ex.P.9 is one
more discharge card issued by the KIMS, Hubli, according to which
claimant was once again admitted to hospital on 31.03.2010 and
was discharged on 13.04.2010 with a complaint that there was
swelling in his right foot. As per this document, the implant was
MFA No. 21371 of 2012
removed on 04.04.2010. Therefore, it is clear that the claimant
was admitted to the hospital as inpatient for about 27 days.
15. Ex.P.13 is the disability certificate issued by PW2. He has
assessed the disability at 31% to the right lower limb. Therefore,
the claimant is entitled for compensation towards partial permanent
disability at 10% to the whole body.
16. The claimant has produced Ex.P.11, being six medical bills,
total amount spent by the petitioner claimant as per these bills is
Rs.1,300/-. However, taking into consideration the nature of injury
and duration of treatment, I deem it appropriate to award
Rs.10,000/- towards medical expenses.
17. The claimant was aged 55 years and was an agriculturist.
The accident occurred during 2009. Therefore, the monthly income
could be assessed at Rs.5,000/-. The claimant is also entitled for
loss of income during laid up period. Since the claimant was
admitted as an inpatient for about 27 days, I deem it to award
Rs.15,000/- towards loss of income during laid up period for at
least for three months.
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MFA No. 21371 of 2012
18. The claimant is also entitled for loss of amenities at
Rs.10,000/-, a sum of Rs.10,000/- towards attendant charges,
traveling expenses and other incidental expenses. Since the
petitioner-claimant has suffered partial permanent disability of 10%,
he is entitled for Rs.66,000/- (Rs.5,000/- [income] x 12 [months] x
11 [multiplier] x 10%) towards disability. Since the claimant has
suffered fracture of both bones of right leg and treated as inpatient
for about 27 days, he is entitled for compensation of Rs.50,000/-
towards pain and suffering.
Thus, the claimant is entitled for compensation as under:
Sl. No. Particulars Amount
1. Towards disability : 66,000.00
2. Towards pain and suffering : 50,000.00
3. Medical expenses : 10,000.00
4. Loss of income during laid up period : 15,000.00
5. Loss of amenities : 10,000.00
6. Attendant charges, traveling expenses and other : 10,000.00
incidental expenses
Total : 1,61,000.00
For the aforesaid reasons, I answer the above point in the
affirmative and pass the following order.
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MFA No. 21371 of 2012
ORDER
The appeal filed by the appellant is allowed with costs.
The judgment and award dated 15.12.2011 passed in M.V.C.
No. 985/2009 by the learned Fast Track Court-III, Dharwad, is set
aside.
The claim petition is allowed with costs. The appellant-
claimant is entitled for compensation of Rs.1,61,000/- with interest
at 6% p.a. from the date of petition till payment.
Respondents No.1 and 2 are jointly and severally liable to
pay the compensation.
Respondent No.2-insurer is directed to deposit the entire
compensation amount with interest before the Tribunal within 60
days from the date of preparation of award.
Amount in deposit, if any, before this Court shall be
transmitted to the Tribunal along with the original records and copy
of this judgment.
SD/-
JUDGE
BVV
