Gadigeiah vs Ijaj Ahmed and Others

A.V. Chandrashekara, J.—Present appeal is filed by the claimant in a case bearing MVC 77/2008 on the file of Court of the II Addl. Civil Judge (Sr. Dn.) and Addl. MACT, Davanagere on the ground that his claim petition has been dismissed after contest on 8.6.2009.

The case put forth by the claimant before the Tribunal is as follows:

"The claimant was traveling in a private passenger bus bearing No. KA-14-B-9630 on 10.8.2007 on Channagiri Davanagere Road to go to his Village Kundur. The said bus was driven in a rash and negligent manner by its driver and dashed against the moving lorry bearing No. KA-34-A-9459 from behind as a result of which the claimant sustained injuries and he took treatment in Government Hospital, Davanagere. Hence, he had filed the claim petition seeking compensation of Rs. 2,00,000/-. The bus in which he was traveling was stated to be validly insured with New India Assurance Co. Ltd. and the bus was owned by respondent No. 2 and driven by respondent No. 1. The learned Judge of the Tribunal has come to the conclusion that Ex. P-6 wound certificate is a concocted document. The learned Judge has assigned reasons as to why the claimant would go to Government Hospital Davanagere ten days after the accident. The delay in approaching the hospital, according to the Tribunal makes the Court to suspect the bonafides of the claimant. Hence, the Tribunal has dismissed his claim petition. Aggrieved by the same, claimant has preferred this appeal." 3. The learned Judge has come to the conclusion that the claimant has not produced X-ray for scrutiny by the Court. Though, the learned Judge of the Tribunal has framed following 3 issues for consideration as found in pages 7 and 8, it has not answered issue No. 2.

"a) Whether the petitioner proves that, the bus bearing Reg No. KA-14-B-9630 in which he is said to have been traveled as a valid passenger by paying the valid fair dashed against a lorry bearing Reg. No. KA-34-A-9459 on 10.8.2007 at bout 5.00 p.m. near 6th Mile Stone on Channagiri-Davanagere, and the said accident was due to rash and negligent manner act of the driver of the bus bearing Reg. No. KA-14-B-9630?

b) Whether the petitioner further proves his entitlement towards compensation? If so, what is the quantum and from whom?

c) What order or award?"

The claimant has averred in his petition filed under Section 166 of MV Act that he was traveling in a private passenger bus on 10.08.2007 from Davanagere to Kudlur and the said bus dashed against a moving lorry as a result of which he sustained injuries. He has specifically averred in his petition that accident in question took place near Mangala Poultry Farm and he sustained injuries. Respondent No. 2 owner of the bus has filed detailed objections denying all the material averments and has called upon the claimant to prove the contents of the claim petition and manner in which accident took place, injuries sustained and involvement of the vehicle. Respondent No. 3 insurer has filed detailed objections denying the involvement of vehicle and injuries sustained by the claimant.

The claimant has been examined as PW-1 and has marked 9 exhibits on his behalf. One H.B. Jmaraj has been examined as RW-1 and has produced and marked two exhibits on behalf of respondents.

Ex. R-1 is the insurance policy of the vehicle in question. Ex. R-2 is the wound certificate issued by Medical Officer, Chigiteri Hospital, Davanagere on 22.8.2007. A case came to be registered against the driver of the bus Ijaj Ahmed, respondent No. 1 herein in Crime No. 69/2007 on the file of Hadadi Police Station under Section 279, 337 and 338 of IPC. Ex. P-2 is the complaint lodged by Malluru Anjanappa to the police at about 5.30 p.m. on 10.8.2007. It is mentioned that he was traveling in Gurubasaveshwara private bus from Davanagere and the said bus met with an accident near Mangala Poultry Farm due to rash and negligent driving of the bus by its driver and dashed against a moving lorry. He has mentioned the number of offending bus as KA-14-B-9630 and number of the lorry is KA-34-9459. Ex. P-3 is the spot mahazar drawn at the spot by the police on 10.8.2007 at about 6.00 to 6.30 p.m. Even in Ex. P-3, the number of bus is mentioned as KA-14-B-9630 and number of lorry is mentioned as KA-34-9459. Ex. P-4 is the statement recorded by the police under Section 161 of Cr.P.C. on 20.8.2007 and the same number of bus is mentioned. Ex. P-6 is the IMV report submitted by the Inspector after examining both the bus and lorry. The said report disclosed that the bus bearing KA-14-B-9630 had sustained the following damages:- a) front wind screen glass broken b) front left side shape, head light damaged c) left side dash board damaged and d) left side body top at front damaged. Similarly lorry bearing KA-34-9459 had sustained a) rear right side corner body damaged b) rear right side tail bump unit damaged and c) rear foot damaged at right portion.

If the bus had not met with an accident, such damages would not have been noticed by the Inspector on 11.8.2007, the very next day after the accident. Apart from this, the same bus number is found in the FIR lodged by Anjanappa. Ex. P-6 wound certificate issued by Medical Officer on 22.8.2007 there is reference about this petitioner having treated by the doctor on 11.8.2007 and taking out X-ray. There is reference about the accident that occurred on 10.8.2007 and number of the bus is mentioned as KA-124-B-9630. It is true that figures 9436 has been struck and the said strike has been initialed by the said doctor. What is argued by the learned counsel for the insurer is that bus bearing KA-14-B-9630 is not involved in the accident.

Though figure 9436 is struck off the initial of the doctor is found in Ex. P-6. In the light of oral assertion of PW-1, which has remained unchallenged the evidence of PW-1 has to be assessed on broad preponderance of probabilities. PW-1 has deposed that soon after the accident, he went home and on the next day, he went to the hospital and this is found in the X-ray taken. After taking X-ray he went home and came to hospital on 22.8.2007 which discloses that he had sustained injuries in the accident. X-ray discloses that claimant sustained fracture of left hand of right clavicle, displacement and dislocation. The injuries 2 and 3 are grievous in nature and injury 1 is simple in nature.

Ex. P-7 is the outpatient slip produced by the claimant which discloses the fracture of right shoulder clavicle and treatment obtained by him. On considering the oral and documentary evidence, it could be certainly held that he was traveling in the bus bearing KA-14-B-9630 and sustained injuries on 10.8.2007 and the bus in question met with an accident due to rash and negligent driving of the bus by its driver near Mangala Poultry Farm.

The learned Judge has adopted a pedantic approach while analyzing the oral and documentary evidence. The learned Judge has blown out of proportion of striking of registration number of the bus ''9436'' in Ex. P-6 and mentioning it as ''9630''.

In a case like this, claimant is not expected to prove beyond reasonable doubt as is insisted in criminal cases. He has effectively discharged the initial responsibility cast upon him and onus has been shifted on other side, which has not been effectively explained.

In view of injuries sustained by the claimant in the accident, reasonable amount has to be awarded as compensation. Considering the nature of injuries, a sum of Rs. 25,000/- is awarded under the head ''pam and suffering'', Rs. 5,000/- is awarded under the head ''medical expenses'', Rs. 10,000/- is awarded under the head loss of amenities'' and Rs. 2,000/- is awarded under the head ''incidental expenses''. In all, a sum of Rs. 42,000/- is awarded as compensation.

In the result following order is passed:

ORDER

The appeal is allowed-in-part setting arise the impugned judgment. The judgment and award passed by the Tribunal is modified. The claimant is entitled for total compensation of Rs. 42,000/- (Rupees Forty Two Thousand only) with interest at 9% p.a. from the date of claim petition till the date of realization, to be realized from the respondents jointly and severally. Insurer is expected to indemnify the claimant.

The insurance company is directed to deposit the compensation amount together with interest within two months from the date of receipt of a copy of this judgment. The said amount is ordered to be released in favour of the claimant.

Parties to bear their own costs.