Patil Lakshman Gowda @ Putil L.J. vs P. Velu and The National Insurance Co. Ltd.

A.S. Pachhapure

The dismissal of the claim petition filed by the appellant u/s 166 of the Motor Vehicles Act for the injuries sustained is challenged in this appeal. The facts reveal that on 02.09.2008 at about 3.30 p.m. the appellant was proceeding on extreme left edge of the road at J.P. Nagar. At that time, suddenly a motorcycle bearing reg. No. KA 05-EU 3806 came in high speed in rash and negligent manner and hit the appellant and thereby he sustained grievous injuries. He was shifted to different hospitals and while under treatment, the Police recorded the complaint, registered the crime and held the investigation. The appellant having sustained grievous injuries has claimed compensation on different heads before the Tribunal.

The 2nd respondent appeared before the Tribunal and contested the petition. The appellant was examined as P.W.1 and 2 witnesses P.Ws.2 and 3. In their evidence, documents Exs. P1 to 16 were marked. The 2nd respondent has not examined any witness, but Exs. R1 and R2 were admitted with consent. The Tribunal after hearing the learned counsel for the parties and on appreciation of the material on record has dismissed the petition holding that the accident is not proved. Aggrieved by the Award, the present appeal has been, filed.

I have heard the learned counsel for the appellant and respondent No. 2.

The points that arise for my consideration are;

1) Whether the appellant proves that an accident occurred on 02.09.2008 at about 3.30 p.m. near Dattatreya Temple, Puttenahalli Road, J.P.Nagar, Bangalore, and he sustained injuries due to the actionable negligence on the part of the rider of the motorcycle bearing reg. No. KA 05-EU 3806?

2) What Order?

Ex.P1 is the certified copy of the FIR and it reveals that the accident occurred on 02.09.2008 about 3.30 p.m. Evidence of P.W.1 reveals that after the accident the public joined at the place of the accident and even the rider was caught by them. It is thereafter that the appellant was shifted to the hospital for the purpose of treatment. EX.P2 is the certified copy of the complaint lodged and P.W.1. In his complaint, he also states about the arrival of the vehicle in rash and negligent manner and hit him. He also mentioned the registration number of the motorcycle as KA-05-EU-3806. This complaint came to be lodged while he was in the hospital on 04.09.2008 i.e., two days after the accident. Ex.P3 is the sketch of the seen of occurrence, whereas Ex.P4 is the copy of the charge-sheet filed against the rider of the motorcycle. The documents produced would go to show that the complaint was registered against the rider of the motorcycle and after investigation, a charge-sheet was also laid against him. In support of these documents, the appellant is examined as P.W.1 and he also states the manner of the accident in his evidence. There appears to be some discrepancy so far as the person who actually informed the registration number of the offending vehicle. But, any how, if the objection statement filed by the 2nd respondent is seen, in para 7, it is stated:

It is given to understand that there is negligence on the part of the petitioner himself in not following the traffic rules and regulations and he was standing almost middle of the road and in fact petitioner was negligent to stand on the road and on the other hand the rider of the motorcycle bearing reg. No. KA 05-EU-3806 was riding the vehicle solely, carefully and following all the traffic rules and hence the petitioner is not liable in the eye of law for compensation.

Though the owner of the offending vehicle did not file any objections, the insurance company in its objection statement admitted the accident. So, ultimately, the question that arises for consideration is about the rash and negligent driving.

P.W.1 has stated that he was standing on the side of the road when the accident occurred and he also states that the motorcycle was ridden in rash and negligent manner and hit him while he was on the side of the road. This much of evidence in the context of the documents produced is sufficient to hold that the rider of the motorcycle is responsible for the occurrence of the accident. Furthermore, the respondents have not examined the rider of the motorcycle to over-come the evidence led by the appellant. The proceedings under the Motor Vehicles Act are summary in nature and it is the principle of preponderance of probabilities that has to be considered so far as the proof of the accident is considered. So, mere delay in lodging the FIR itself is not a ground to reject the evidence and also the admission of the insurer. So, taking into consideration these all materials, I am of the opinion that the appellant was successful in establishing the rash and negligent riding of the motorcycle in question by its rider. The Tribunal committed an error in rejecting the evidence led merely because that there was some discrepancies in the evidence of P.W.1 so fax as the person who gave the registration number of the vehicle. So far as the quantum of compensation is concerned, the Tribunal has not answered the issue holding that it does not survive for consideration. Whenever the issues are framed it is necessary for the Tribunal to answer all the issues. Merely because of issue No. 1 went adverse to the interest of the claim, it does not mean that the Tribunal is exempted from the responsibility of answering the second issue regarding the quantum of compensation. It is the duty of the Tribunal to appreciate the material placed on record and also conclude ass to what could be the compensation in case if the appellant had proved the negligent driving. In the circumstances, I am of the opinion that the matter has to be remitted back to the Tribunal with a direction to consider issue No. 2. Therefore, I answer point No. 1 in affirmative and proceed to pass the following:

ORDER

The appeal is allowed. The Judgment and Award dismissing the claim of the appellant is set aside and the matter is remitted back to the Tribunal to dispose of the same in accordance with law in the context of the findings and observations made above. As the matter is of the year 2008, the Tribunal is directed to expedite the disposal.

Both the parties are directed, to appear before the Tribunal on 13.02.2012.