Karnataka High Court
Andappa S/O. Basappa Naganur @ ... vs Falvia Carlo W/O. Vincent Prakash Carlo on 2 February, 2024
Author: V.Srishananda
Bench: V.Srishananda
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NC: 2024:KHC-D:2398
MFA No. 20587 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.20587 OF 2012 (MV-I)
BETWEEN:
ANDAPPA S/O. BASAPPA NAGANUR @ NIDAGUNDI,
AGE: 54 YRS, OCC: COOLIE NOW NIL,
R/AT SAJJAPUR, TQ: RON
NOW R/AT: MUTTALAGERI, TQ: BADAMI,
DIST: BAGALKOT.
...APPELLANT
(BY SRI. SIDDAPPA SAJJAN, ADVOCATE)
AND:
1. SMT. FALVIA CARLO
W/O. VINCENT PRAKASH CARLO,
AGE: MAJOR, OCC: OWNER OF THE VEHICLE,
R/AT: VANCY VILLA D'CUNA, COMPOND,
BAJJODI MAROLI ROAD, MANGALORE.
2. THE DIVISIONAL MANAGER,
IFFCO TOKOYO INSURANCE CO. LTD.,
3RD FLOOR, LALBAGH TOWER, MG ROAD,
Digitally
signed by
SAROJA
MANGALORE, DK.
SAROJA HANGARAKI
HANGARAKI Date:
...RESPONDENTS
2024.02.13
16:06:23
(BY SRI. R.R. MANE, ADVOCATE FOR R2;
+0530 NOTICE TO R1 SERVED)
THIS M.F.A. IS FILED U/SEC.173(1) OF MV ACT, AGAINST THE
JUDGMENT AND AWARD DTD:09.03.2011 PASSED IN
MVC.NO.588/2008 ON THE FILE OF THE SENIOR CIVIL JUDGE &
MEMBER MACT-VIII, BADAMI, DISMISSING THE CLAIM PEITTION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS M.F.A., COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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NC: 2024:KHC-D:2398
MFA No. 20587 of 2012
JUDGMENT
Heard Sri.Siddappa Sajjan, learned counsel for the
appellant and Sri.R.R.Mane, learned counsel for the
respondent - Insurance Company.
2. Unsuccessful claimant is before this Court
challenging the validity of judgment and award passed in
MVC No.588/2008 dated 09.03.2011 on the file of
Additional Motor Accident Claims Tribunal, Badami.
3. Facts in brief which are utmost necessary for
disposal of this case are as under:
3.1 A claim petition came to be filed under Section
166 of Motor Vehicles Act contending that on 20.12.2007,
the claimant along with other co-labourers were putting
coal tar to the road. When he was standing by the side of
road holding bucket of hot coal tar, a Mahindra pick-up
vehicle bearing No.KA-19/B-8355 came in a high speed
and rash and negligent manner and dashed against the
claimant, whereby he fell down and bucket of hot coal tar
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also fell on his body, whereby he got injured. He was
taken to hospital and treated there.
3.2 Claim petition was resisted by the Insurance
Company by filing a detailed written statement including
involvement of vehicle bearing No.KA-19/B-8355.
3.3 Tribunal raised following issues.
1. whether the petitioner proves that he had sustained
injuries in an accident occurred on 20.12.2007 at about
9.00 hours near Ambika Nagar Katte, panjimogaru
Mangalore about 1 KM west of kavoor police station due to
rash and negligent driving of vehicle bearing No.KA.19/B-
8355 (Mahindra pick up) by its driver ?
2. whether the respondent No.2 proves that the driver of
the vehicle had not possessed valid driving licence on the
alleged date of accident ?
3. Is petitioner entitled for compensation ? If so, from
whom and what extent ?
4. To what order or award
3.4 In order to prove the case of claimant, he got
examined himself as PW.1. He placed on record 62
documents which were exhibited and marked as Exs.P.1 to
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P.62. There was no evidence placed record either oral or
documentary on behalf of respondents.
3.5 Tribunal after considering the material evidence
placed on record by the claimant, dismissed the claim
petition by holding that there is no involvement of vehicle
bearing No.KA-19/B-8355 in the accident.
4. Being aggrieved by the said judgment, the
claimant has preferred the present appeal on the following
grounds:
"i. The Judgment and award passed by the Court
below in so far as it relates to quantum of
compensation is contrary to law and facts of the
case.
ii. The Court below has erred in awarding
compensation for the injuries sustained by the
claimant /appellant in the accident with occurred on
07/04/2008.
iii. The Court below failed to consider the pledging
and evidence on record and oral and documentary
evidence on record.
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iv. It is submits that the appellant spent more than
Rs.1,00,000/- for medical expenditure, but court
below erred in awarding compensation towards
medical expenses.
v. It is submits that appellant sustained grievous
Burnt injuries 35% of the whole body and grievous
injuries the all over the body.
vi. The Court below is erred in awarding
compensation of towards future loss income and loss
of income during treatment.
vii. It is submitted that the court below erred in
awarding compensation towards conveyance,
attendance charges and special diet and award
interest as claimed by the appellant.
viii. That having regard to the nature of injuries
sustained by the appellant. Court below erred in
dismiss the appeal that the appellant was not proved
the alleged accident. Hence the dismiss the claim
petition and directing the appellant to go before
workman compensation commissioner. It is liable to
be set aside."
5. Reiterating the grounds urged in the appeal
memorandum, Sri.Siddappa Sajjan learned counsel for the
appellant contended that the Tribunal has grossly erred in
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dismissing the claim petition by improperly appreciating
the material evidence on record resulting in miscarriage of
justice and sought for allowing the appeal.
6. He pointed out that the proof that is required to
be adduced before the Tribunal is not strict proof like a
criminal case and Court is required to assess the
evidentiary value of material evidence on record by
preponderance of possibilities and sought for allowing the
appeal.
7. Per contra, learned counsel for Insurance
Company supports the impugned judgment by contending
that there is clear overwriting in the complaint itself in
inserting the vehicle number as bearing No.KA-19/B-8355.
But though in the claim petition it has been mentioned as
Mahindra pick-up van, in the complaint itself it has been
stated that as it is TATA pick-up van.
8. The discrepancy in mentioning the vehicle name
itself is clear enough to show that there is false implication
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of vehicle bearing No.KA-19/B-8355 in the case and
sought for dismissal of the appeal.
9. Further, IMV report does not show any damage
to the vehicle nor any traces of hot coal tar spread on the
vehicle. Absence of coal tar on the vehicle shows that the
alleged accident as is contended by the claimant has not
taken place and sought for dismissal of the appeal.
10. In view of the rival contentions of the parties,
this Court perused the material on record meticulously.
11. On such perusal of material on record, in the
complaint itself there is clear mention that the alleged
vehicle involved in the accident is TATA pick-up van;
whereas vehicle bearing No.KA-19/B-8355 is a Mahindra
pick-up van. In the mahazar also, what has been seized is
Mahindra pick up van.
12. How TATA pick-up van would become a
Mahindra pick-up van is the question that remains
unanswered on behalf of claimant. Further, in the
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compliant, it is seen that the vehicle number is tampered.
Same is visible to a naked eye. Perhaps the Mahindra pick-
up van possessed proper insurance and therefore, there is
possibility of implanting said vehicle in the incident.
13. Further, as rightly argued by the learned
counsel for the respondent, no injury has taken place in
the alleged accident to the claimant other than burn
injuries. Burn injuries are on account of spilling of hot coal
tar. If a Mahindra pick-up van or a TATA pick-up van has
dashed against the claimant that too with a very high
speed as is contended, the injured would have definitely
fallen down on the road and sustained at least some blood
injuries on his body.
14. Wound certificate does not indicate any blood
injury on the body of the claimant except the burn
injuries.
15. Further, the photographs marked at Ex.P.61
and Ex.P.62 does not indicate any blood injuries on the
body of the claimant except the burn injury.
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16. Therefore, the Tribunal doubted the very
accident itself involving vehicle bearing No.KA-19/B-8355.
17. It is also pertinent to note that no other
eyewitness is examined to advance the case of claimant.
Admittedly, the claim petition averments show that he was
holding hot coal tar for the purpose of repairing the road
along with co-labourers.
18. Nothing prevented the claimant either to
examine the contractor or co-labourers to establish the
accident. Therefore, the material evidence on record has
been rightly appreciated by the Tribunal and dismissed the
claim petition.
19. Even after re-appreciation of material evidence
on record in the light of the appeal grounds, this Court
does not find any legal infirmity or perversity in recording
a finding that the claimant has failed to establish that he
has sustained injuries found on his body as per the wound
certificate by involvement of vehicle bearing No.KA-19/B-
8355.
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20. In view of the foregoing discussion, following
order is passed:
ORDER
(i) Appeal is meritless and hereby dismissed.
(ii) No order as to costs.
Sd/-
JUDGE
SH
