Karnataka High Court
Kishan @ Krishna S/O Maruti Sapale vs Ramesh Balkrishna Chechar on 2 February, 2024
Author: V.Srishananda
Bench: V.Srishananda
-1-
NC: 2024:KHC-D:2391
MFA No. 23111 of 2012
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 2ND DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE V.SRISHANANDA
MISCELLANEOUS FIRST APPEAL NO.23111 OF 2012 (MV-I)
BETWEEN:
KISHAN @ KRISHNA S/O. MARUTI SAPALE,
AGE: 43 YEARS, OCC: RICKSHAW DRIVER(NOW NIL),
R/O: H.NO. 13, MARUTI ROAD,
GANDHI NAGAR, BELAGAVI.
...APPELLANT
(BY SRI. VISHWANATH BADIGER, ADVOCATE)
AND:
1. RAMESH BALKRISHNA CHECHAR,
AGE: MAJOR, OCC: AUTO DRIVER,
R/O: H.NO.55, DURGA MATA ROAD,
GANDHI NAGAR, BELAGAVI.
2. THE DIVISIONAL MANAGER,
THE ORIENTAL INSURANCE CO., LTD.,
HAVING ITS OFFICE AT CLUB ROAD,
Digitally
BELAGAVI.
signed by
SAMREEN
SAMREEN AYUB
AYUB DESHNUR
DESHNUR Date:
2024.02.07
12:51:36
...RESPONDENTS
+0530
(BY SRI. S.S. KOLIWAD, ADVOCATE FOR R2;
R1 SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT, 1988, AGAINST THE JUDGMENT AND
AWARD DATED 06.03.2012 PASSED IN MVC NO.1554/2011 ON THE
FILE THE III-ADDL. SENIOR CIVIL JUDGE AND MEMBER, ADDL.
MACT, BELAGAVI, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MISCELLANEOUS FIRST APPEAL, COMING ON FOR
HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
-2-
NC: 2024:KHC-D:2391
MFA No. 23111 of 2012
JUDGMENT
Heard Sri Vishwanath V.Badiger, advocate for appellant
and Sri S.S.Koliwad, advocate for respondent No.2.
2. Unsuccessful claimant is in appeal.
3. Facts in brief which are utmost necessary for disposal of
the appeal are as under:
A claim petition came to be filed under Section 166 of the
M.V.Act which was registered in M.V.C.No.1554/2011 dated
06.03.2013 on the file of the III Additional Senior Civil Judge
and Addl. MACT, Belagavi.
According to the claimant, he suffered accidental injuries
in a road traffic accident that occurred on 11.06.2011 when he
was returning from a marriage ceremony of his friend in an
auto rickshaw bearing registration No.KA-22/A-3832. It is his
case that the driver of the auto rickshaw drove the same in a
rash and negligent manner and on account of cyclist crossing
suddenly, auto rickshaw driver has to apply sudden brake,
whereby, he fell down and sustained injuries.
NC: 2024:KHC-D:2391
4. Upon receipt of notice, respondent No./Insurance
Company appeared and denied the claim petition averments in
toto.
5. Based on the rival contentions of the parties, the Tribunal
raised the following issues:
"1. Whether the petitioner proves that due to the
rash and negligent driving of the auto rickshaw
bearing No.KA-22/A-3832 resulting in the
petitioner getting injured?
2. Whether the petitioner is entitled for
compensation?
3. What Order?"
6. In order to prove the case of the claimant, claimant got
himself examined as P.W.1 and Dr.A.B.Patil, as P.W.2 and
placed on record 20 documents marked as Ex.P.1 to 20.
7. As against the said oral and documentary evidence, there
is no oral evidence adduced by the Insurance Company, except
marking the insurance policy as Ex.R.1.
8. The learned Trial Judge heard the parties in detail and
came to the conclusion that the claimant failed to establish that
NC: 2024:KHC-D:2391
he sustained accidental injuries in a road traffic accident as
contended by him and dismissed the claim petition.
9. Being aggrieved by the same, claimant is in appeal on the
following grounds:
It is submitted that, as per averments of the complaint
lodged by the appellant that, on 11.06.2011 the appellant
along with his friend Bhau Laxman Langarkhande took the
auto rickshaw bearing No.KA-22/A-3832 belonging to R.1
who is riding the auto to the marriage purpose and after
while they coming back to house, and when the auto
reached the sport of accident near the Maratha Mandal
School, chavat gallin cross he driven the auto in rash and
negligent manner at that time a bicycle came middle of
the auto and to escape from to hit bicycle he lost control
over the auto and turtle the auto on left side of the, due
to said accident the appellant sustained grievous injuries.
It is submitted that, on the next day on 12.6.2011 the
police came to the Vijay hospital and took complaint from
the appellant, and registered the case against the driver
of the auto Respondent No.1 in FIR No.115/2011 for the
offence punishable u/Section 279, 337 of IPC and Section
134B, 187 of M.V.Act and after the investigation the
police have filed charge sheet against the driver of the
auto driver i.e., respondent No.1 offence punishable
u/Section 279, 337 of IPC and Section 134B, 187 of
M.V.Act and criminal case has been registered in
C.C.No.758/2011 by the JMFC II Court, Belgaum, wherein
NC: 2024:KHC-D:2391
the driver of the auto/respondent No.1 appeared and
pleaded guilty for the alleged offence. Hence regarding
the above said facts the tribunal has not taken into
consideration. Hence when the police charge sheeted the
alleged offence against the driver of auto and the driver
of auto pleaded guilty for the alleged offence and he was
sentenced to pay fine of Rs.1200/- the tribunal ought to
have been allowed the claim of the appellant/claimant.
The tribunal dismissed the appeal merely on the basis of
the accident spot mahazar, and the tribunal held that
there is no break mark on the road and there is no
damage to the alleged auto rickshaw, hence these
reasons are not to the grounds to dismiss the appeal, as
already the police charge sheeted against the driver of
the auto rickshaw and the said driver pleaded guilty for
the offences, hence the said police papers regarding the
accident cannot be ruled out. Therefore the tribunal
ought to have allowed the appeal.
The Court below ought to have been considered the
award under the head of loss of future earning by
considering income of the appellant at Rs.9,000/- p.m.
and multiplier for the age of the appellant as 42 years
and permanent physical disability at 25%.
The appellant sustained "fracture middle 3rd clavicle left
side type III A open, and communicated left tibia lower
3rd and middle junction", due to the said fracture there is
shortening of 2.5 cms to the left lower limb. P.W.3 doctor
assessed the disability to 35% to left lower limb and 15%
NC: 2024:KHC-D:2391
to left upper limb. Hence the tribunal ought to have been
considered the disability to the extent of 25%.
The appellant produced medical bills of Rs.46,520/- as
per Ex.P.13, hence the same be considered in this appeal.
The tribunal ought to have been consider the award under
future medical expenses, as he has to take day to day
treatment and medicine, hence it required to
enhancement in this appeal under the head of future
medical expenses.
The tribunal ought to have been consider the award under
the head of pain and suffering, hence by looking into the
nature of injuries the same is required to be enhancement
in this appeal.
The tribunal failed to award under the head of
conveyance, incidental charges, nutrition, as the
appellant was admitted in the hospital for 10 days, hence
looking into the same is required to be consider in this
appeal.
The trial court ought to have consider the award the
compensation under the head of loss of amenities, hence
the same is required to be enhancement in this appeal.
The tribunal ought to have considered the interest at the
rate of 9% from the date of filing of petition.
NC: 2024:KHC-D:2391
10. Reiterating the grounds urged in the appeal, learned
counsel for the appellant contended that the Tribunal has not
properly appreciated the material evidence on record and
wrongly dismissed the claim petition resulting in miscarriage of
justice and sought for allowing the appeal.
11. He further contended that the standard of proof required
to be placed before the Court is that of preponderance of
probability and the learned trial Judge has not properly
appreciated the material on record, especially, the charge sheet
being filed against driver of the auto rickshaw who pleaded
guilty and therefore, impugned judgment is suffering from legal
infirmity and sought to allow the appeal.
12. Per contra, learned counsel for the Insurance Company
supported the impugned judgment by contending that the
learned Trial Judge has rightly dismissed claim by properly
appreciating the material evidence and sought for dismissal of
the appeal.
13. In view of the rival contentions of the parties, perused
the material on record, meticulously.
NC: 2024:KHC-D:2391
14. On such perusal of the material on record, claimant has
stated that he was an inmate of auto rickshaw bearing
registration No.KA-22/A-3832. While he was returning home
after attending the marriage of his friend, when auto rickshaw
reached near Maratha Mandal School, Chavat Galli, Belagavi,
auto rickshaw driver suddenly applied the brake to avoid an
accident on a bicycle rider who crossed the road abruptly.
Claimant fell down from auto rickshaw and tyre of the auto
rickshaw ran on his body and he sustained injuries.
15. He also stated that the driver of the auto rickshaw
sustained injury on his forehead.
16. But, in order to substantiate the said aspect of the matter
sufficient evidence is not placed on record. If any such
accident has occurred there should be been visible damage to
the auto rickshaw. No such visible damages are noted by the
Inspector of Motor Vehicle when he examined the auto
rickshaw after the same has been seized and parked in the
precincts of police station.
17. Further, the spot mahazar does not indicate applying
sudden brake. If the auto rickshaw driver has suddenly applied
NC: 2024:KHC-D:2391
brake as is claimed by claimant, there must be tyre marks on
the road. The spot mahazar does not mention any such tyre
mark. Further, it is not the claimant alone who was the inmate
of the auto rickshaw as on the date of the accident. No such
inmate is examined. Nor any other inmate has been injured.
18. Non examination of driver of the auto rickshaw and other
inmates is also taken note by the learned Trial Judge while
dismissing the claim petition.
19. No explanation is forthcoming as to these anomalies in
the case of the claimant, even in appeal grounds.
20. Under such circumstances, this Court is of the considered
opinion that the Tribunal was justified in dismissing the claim
petition, disbelieving the genesis of the accident as is
propounded by the claimant.
21. Thus, even on re-appreciation of the material on record,
this Court is of the considered opinion that material on record is
hardly sufficient to interfere with the well reasoned order
passed by the Tribunal.
22. Accordingly, the following:
- 10 -
NC: 2024:KHC-D:2391
ORDER
(i) Appeal is meritless and is hereby dismissed.
(ii) No order as to costs.
Sd/-
JUDGE
kcm
