M. Nagaraju vs Syed Shabeer

A.V. Chandrashekara, J.—The claimant of case bearing MVC No. 2129/2005 which was pending on the file of MACT, Bangalore, has filed this appeal challenging the reduction of the compensation on the ground that he had contributed negligence to the accident in question. The claimant was injured in an accident that occurred on 10.09.2003 at about 5.00 p.m. near Byrathi Bande involving his motorcycle bearing registration No. KA-03-EJ-618 and another motorcycle bearing registration No. KA-03-R-6646.

According to the petitioner when he was proceeding on his motorcycle towards his home on the left side of the road, a motorcycle bearing registration No. KA-03-EJ-618 being driven rashly and negligently by its rider and dashed against him after overtaking a Maruti Van and as a result of which he fell down and sustained grievous injuries. He chose to file a claim petition before the MACT, Bangalore, and after contesting the matter, the Tribunal has awarded a compensation in all a sum of Rs. 2,95,000/-. The contributory negligence of claimant is attributed at 60% and a sum of Rs. 1,77,000/- has been reduced from the compensation awarded by the Tribunal and total compensation payable to the claimant was fixed at Rs. 1,18,000/-.

The claimant is aggrieved on the ground that 60% of compensation is reduced on the ground of contributory negligence. This, according to the claimant, is incorrect and improper.

What is argued by the learned counsel for the respondent - insurer is that the petitioner has admitted that the accident took place in the middle of the road and it is further supported by Ex. R-4, the sketch prepared by the police in the case registered against the claimant himself. It is argued that the claimant ought to have produced the police documents before the Tribunal. It is further argued that the Tribunal on considering the entire evidence of the parties, has come to the conclusion that claimant was responsible to the accident in question to an extent of 60%.

Perused the records and heard the learned counsel for the parties. There is no dispute about the accident that took place, in which two motor vehicles were involved. Admittedly, claimant was proceeding on his motorcycle towards his home. Ex. R-4, rough sketch prepared by the police soon after the case was registered on the accident. The case was registered against the claimant by the police on the ground that he was responsible for the accident.

Claimant who has been examined as P.W. 1 has specifically contended that accident took place solely due to the negligence of the driver of the offending motorcycle bearing registration No. KA-03-EJ-618. Just because he has admitted that accident in question took place in the middle of the road, it does not give scope to contend that the accident took place because of the negligence of the riders of two motorcycles. In paragraph 8 of the written objections filed before the MACT it is averred that claimant himself was responsible for the accident in question, since he drove his vehicle in rash and negligent manner. He has averred that claimant did not have valid insurance to his vehicle as on the date of the accident.

Mere production of police records would be insufficient and nothing came in the way of the insurer to have examined one of the persons, who is cited as eye witness to the accident in question. Sri. Syed Shabeer and Sri. S.N. Syed, cited as CWs 1 and 2 in the charge sheet are stated to be the eye witnesses to the incident in question and they have not been examined by the insurer. If they had been examined, the truth would have come out. On the other hand, claimant who is examined as P.W. 1 has stated about the manner in which the accident took place and the entire truth.

What is argued before this Court by the learned counsel for the insurer is that claimant did not have valid insurance to the vehicle and thereafter he chose to file the complaint through his wife before the police on 10.09.2003. Admittedly, the claimant had sustained grievous injuries to his head and face and he was treated in four hospitals at different dates. Ex. P-3 is discharge summary issued by Sanjay Gandhi Hospital and same discloses about the gravity of injuries sustained by him. At that point of time he could not have lodged a complaint to the police. It is also to be seen that the wife of the claimant chose to file a complaint before the police at about 11.25 p.m. on the same day of the accident and Ex. P-2 is the copy of the complaint. Since no action was taken on the complaint, he chose to file a private complaint under Section 2(d) of Cr.P.C. before the jurisdictional Magistrate Court and Ex. P-1 is the copy of the order passed by the Magistrate Court referring the same to the jurisdictional police for conducting investigation and to submit the report. Taking all these facts into consideration, this Court is of the considered view that P.W. 1 has proved that the accident that took place solely due to the negligence of the rider of the other motorcycle bearing registration No. KA-03-EJ-618.

Initial burden cast upon the claimant to prove the manner in which the accident took place has been discharged as per Sections 101 and 102 of the Evidence Act. Mere production of police documents would be insufficient to probabalize the theory of the contributory negligence. In fact, the learned Judge of the MACT has specifically held that the version of P.W. 1 has been not rebutted. The Tribunal has laid much emphasis on Exs. R-1 to R-4 to infer that the claimant was also responsible for the accident and thereby to calculate his negligence at an extent of 60%. The very approach adopted by the Tribunal is not consistent with the evidence placed on record. Thus the appeal will have to be allowed in its entirety and the contributory negligence attributed to the accident in question will have to be set aside.

ORDER

"(i) Appeal is hereby allowed in part in its entirety.

(ii) 60% negligence attributed to the rider of the motorcycle bearing registration No. KA-03-EJ-618 is set aside.

(iii) It is made clear that the insurer will have to be pay the entire award amount of Rs. 2,95,000/- to the claimant.

(iv) It is made clear that the insurer will have to indemnify appellant - claimant of the entire award amount of Rs. 2,95,000/-.

(v) There is no order as to costs."