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Judgment
H.S. Kempanna, J.—This appeal by the claimant is directed against the impugned judgment and award dated 8.8.2008 passed in MVC No. 7944/2006 by the MACT, Court of Small Causes, Bangalore City (SCCH-10) dismissing the claim petition preferred by the Appellant-claimant.
The brief facts of the case are:
The Appellant-claimant filed the claim petition claiming compensation in respect of the bodily injuries which he sustained in a motor accident that took place on 23.10.2006 at about 9 a.m. near Vaddanakunte village involving the lorry bearing Regn. No. CAW 2813 owned by the second Respondent and insured with the first Respondent at the relevant point of time. In the impugned accident he sustained severe injuries for which he took treatment in the hospital by spending huge money. Despite the same, he was not completely cured of the injuries due to which he is unable to carry on his avocation as cleaner which has resulted in loss of income. Accordingly, he sought for compensation from the Respondents.
After service of notice, the second Respondent-owner remained absent. Hence, he was placed exparte. The first Respondent-insurer of the offending vehicle appeared and contested the claim of the Appellant. It was contended that the accident did not take place on account of the fault of the driver of the lorry. On the other hand, it took place due to the fault of claimant himself. They also further contended that their liability if any is subject to the terms and conditions of the policy issued. Apart from the same, they also denied all other allegations made in the petition and sought for dismissal of the petition as against them.
On the basis of the above pleadings, the Tribunal framed the following issues:
Whether the Petitioner proves that on 23.10.2006 at about 9 a.m. when the Petitioner was pedestrian at Vaddanakunte village, Anjanapura, Uttarahalli Hobli, Bangalore Urban taluk, then there was an accident due to the actionable negligence on the part of the driver of Lorry bearing No. CAW-2813, thereby the Petitioner sustained injuries?
Whether the Petitioner is entitled for any compensation? If so, what amount and from whom?
To what order or award?
The claimant in support of his case got himself examined as PW1 and the doctor who had treated him as PW2. He produced 10 documents which came to be marked as exhibits P1 to P10. On behalf of the contesting Respondents they did not lead any oral evidence on the other hand, got marked the policy of insurance with consent as Ex.R1.
The tribunal thereafter on considering the oral and documentary evidence on record held that the-accident, in question has taken place due to the fault of the driver of the offending lorry. However, the Tribunal on perusal of the wrapper of the case sheet and the first page of the case sheet which is at. Ex.P9 held that, the claimant has not established that the accident in question took place on 23.10.2006 relying on the entries made on the wrapper of Ex.P9 and first sheet of ease sheet which indicated that the date of accident as 21.10.2006 and the date 23.10.2006 has been corrected from 21.10.2006. Accordingly, the tribunal dismissed the claim petition. Further, the Tribunal having dismissed the claim petition did not go into the other aspects of the case to assess the compensation that the claimant is entitled to.
The Appellant-claimant being aggrieved of the impugned judgment and order of the Tribunal dismissing his claim petition is in appeal before this Court.
The learned Counsel for the Appellant submitted that the Tribunal has erred in dismissing the claim petition solely relying on the date of admission of the claimant mentioned on the wrapper of Ex.P9 as 21.10.2006 and in the first page of case sheet the date having been solely corrected as 23.10.2006. Drawing my attention to Ex.P9, he submitted that, the accident in fact has taken place at about, 9 a.m. on 23.10.2006. He further submitted PW2, the doctor, inadvertently in his evidence has mentioned that the accident has taken place on 21.10.2006 against the medical records which reveals that the accident in question has taken place on 23.10.2006. He further submitted a close scrutiny of Ex.P9 reveals coupled with other documents that the accident in question has taken place on 23.10.2006 at 9 a.m. as claimed by the Appellant and the Tribunal has not properly appreciated the same and thereby it has come to a wrong conclusion that the claimant has failed to establish that the accident in question took place on 23.10.2006 and accordingly, has dismissed the petition which cannot be sustained.
Per contra, the learned Counsel appearing for the contesting insurer submitted that in view of the evidence of PW2 the medical officer and the entries in Ex P9 the Tribunal has correctly recorded its finding and accordingly, has dismissed the petition and the same does not. call for any interference.
Taking the rival submissions into consideration and the documents placed on record the point that arises for my consideration is:
Whether the impugned judgment, and order passed by the Tribunal dismissing the claim petition of the Appellant-claimant is sustainable?
The facts are not in dispute. The Appellant/claimant having met with accident, injuries sustained, treatment taken, amount spent are not in dispute. It is the case of the claimant that he met with accident at about 10 a.m. on 23.10.2006 and sustained injuries in the same near Vaddanakunte village involving the lorry in question. In support of his claim he has produced exhibits P1, P3. P5, P6 and P9. Relying upon exhibits P1 to P3 and P5, the Tribunal has recorded a finding that the impugned accident has taken place solely on account of the fault of the driver of the offending lorry and accordingly, the claimant has established actionable negligence. However, the Tribunal has dismissed the claim petition of the claimant holding that: he has failed to establish that the accident took place on 23.10.2006 at 9 a.m. as claimed by him relying upon the entry made on the wrapper of Ex.P9 which discloses that the date of admission as 21.10.2006 and a correction in the dare made in the first sheet of the case sheet Ex.P9 and the testimony of PW2 the medical officer. But Exhibits P1 and P5, FIR, FI and the charge sheet reveal that the accident has taken place on 23.10.2006 at 9 a.m. involving the lorry in question. Ex.P9 is the case sheet of S.M. Hospital situated near Konankunte cross. Bangalore. On the wrapper of Ex P9 it is mentioned the date of admission as 21.10.2006. In the first page of the case sheet it appears, the date ''3'' has been corrected from ''1''. Further, the evidence of PW2 reveals that the accident took place on 21.10.2006. As already pointed out relying on. these things the Tribunal has come to the conclusion that the Appellant-claimant has failed to establish that the accident took place on 23.10.2006 at 9 a.m. near Vaddanakunte village and accordingly, has dismissed his petition. But, on scrutiny of Ex.P9, the case sheet reveals that the claimant has been treated in the very same hospital on 23.10.2006 at 9.50 a.m. for the injuries which he has sustained, in the impugned accident. Further, the case sheet also reveals on that day itself he has been treated in the very hospital at 11 p.m. It further discloses the continuous treatment that has been given to the claimant in the said hospital from that date onwards upto 2.11.2006. Apart from the same, the claimant has produced skiograms which has been taken from the very same hospital which are at exhibits P10 series. A perusal of the same discloses that the same has been taken in the hospital on 23.10.2006 in respect of the injuries which he has sustained in the impugned accident. The medical officer PW2 might have in his evidence inadvertently stated that he examined the Petitioner on 21.10.2006 contrary to the entries made in the case sheet and the X-ray Ex.P10 taken on the date of accident i.e. 23.10.2006. These documents clearly disclose that the accident in question has taken place as claimed by the claimant on 23.10.2006 at about 9 a.m. near Vaddanakunte village involving the lorry in question. As the Tribunal has also held that the accident has taken place due to the fault of the offending lorry relying upon the police documents at Exs.P1, 2, 3 and 5, the Tribunal was in error in coming to the conclusion that the claimant has failed to prove that he sustained injuries in the impugned accident that took place on 23.10.2006. Accordingly, the same cannot be sustained. Further, the Tribunal having come to the conclusion that the claimant has filed to establish the accident having taken place on 23.10.2006 has not gone into other aspects of the case in determining the compensation that the claimant is entitled to on the basis of the evidence and other documents placed on record. In view of the material that is available on record, as already pointed out, the impugned judgment and award of the Tribunal cannot be sustained, the same is set-aside and the matter deserves to be remitted back to the Tribunal for fresh consideration by affording opportunity to both the parties to establish their case. Accordingly, the appeal has to succeed.
In the result, for the foregoing reasons, I proceed to pass the following order:
i) The appeal is allowed.
ii) The impugned judgment and award dated 8.8.2008 passed in MVC No. 7944/2006 by the MACT(SCCH-10) Bangalore is set aside. The matter is remitted back to the Tribunal for fresh consideration and disposal in accordance with law after affording opportunity to both the parties to establish their claim. All contentions raised by the respective parties are left open.