Sr. Ganapati Timmanna Bhat vs Sri. & Anr.

This appeal is filed by the appellant-claimant under Section 173(1) of the Motor Vehicles Act, 1988, challenging the judgment and award passed by the Additional M.A.C.T. Yellapur (hereinafter referred to as ''the Tribunal'') in MVC No. 105/2006, dated 30.09.2008.

The appellant in his memorandum of appeal has taken contention that the finding of the Tribunal on issue No. 1 and 2 completely on relying oral evidence led by the parties in criminal case ignoring other documents produced by the appellant is erroneous and liable to be quashed. The cogent and valid reasons given by the appellant for delayed filing of complaint and explaining the facts was not properly appreciated by the court below. With this, appellant has prayed for allowing the appeal seeking grant of appropriate compensation by setting aside the judgement and award under appeal.

In response to the notice, respondent No.2 has appeared through its Counsel Shri. Rajashekhar S Arani. The respondent No.1 has served and unrepresented. The records of Tribunal below were called for and the same are placed before me.

Heard the arguments from both sides and perused the memorandum of appeal, impugned judgment and the entire materials placed before this Court.

In the light of the above, the point that arises for my consideration is: "Whether the appellant has made out grounds to allow the appeal?"

It is an appeal filed by the appellant, who was claimant in the Tribunal below. The respondent Nos.1 and 2 are the owner and Insurer of the alleged offending vehicle respectively.

The summary of the case of the claimant/appellant is that on 22.07.2004 at about 9.00 p.m., when he was waiting for a vehicle on kachcha road at Gergadde cross to proceed to Yellapur, a motorcycle bearing registration No.KA-31- J-9279 being ridden in a rash and negligent manner by its rider coming from Karwar side and dashed against him due to which accident, he sustained injury. He was admitted to Kshema Orthopedic and Trauma Centre, Hubli, wherein he was treated as inpatient from 23.07.2004 to 02.08.2004. Due to the accident, he sustained fracture of Medial Malleolus with fracture fibula 1/3rd left and underwent surgery. It is his further case that he was under an impression that the Police have registered a criminal case with respect to the accident but only at a later stage. He came to know that no such complaint was filed, as such, he lodged a private complaint. He has further stated that due to the injuries suffered by him in the accident, he has suffered permanent disability and the said accident occurred solely due to rash and negligent driving of the motorcycle by its rider. He has stated that he has spent Rs.50,000/- towards his medical treatment. Holding that the respondent No.1 and 2 in the tribunal below respectively as the owner and insurer of the motorcycle, the claimant had claimed a compensation of Rs.4,00,000/- from them. The Tribunal after recording evidence and hearing both side by its judgement and award dated 30.09.2008 dismissed the claim petition. It is against the said judgement and award, the claimant has preferred this appeal.

For the sake of convenience, the parties would be referred to with their rankings they were holding before the Tribunal below respectively.

The Tribunal below while deciding the claim petition before it framed the following issues. 1. Whether the petitioner proves that he sustained bodily injuries on his person in a RTA on 22.07.2004 at about 9.30 p.m. at Garagadde cross, near Arati Bail Ghat due to rash and negligent riding of motor bike bearing No.KA-31-J-9279 by its rider?

Whether the petitioner is entitled for compensation? if so, at what quantum and from whom?

What order or award?

It answered issue No.1 and 2 in the negative and dismissed the claim petition. While answering issue No.1 in the negative, the Tribunal below observed that there was a delay of 40 days in lodging a private compliant by the injured. Further, the said claimant in his evidence as PW1 has clearly stated that he does not know whether it was a bus or a motorcycle which dashed against him. Further, he does not know at whose fault the accident occurred. To support its contention, it further referred to Ex.R2, which is a copy of the deposition of the present claimant in criminal case, wherein the claimant as a complainant/injured has stated that he did not know as to which vehicle dashed against him. Further, observing that the claimant did not even examine one Sri. Nagendra G. Bhat, who was accompanying him at the time of accident, the Tribunal opined that there is a suspicion regarding the involvement of the motor cycle in the alleged accident. With these observations, it answered issue No.1 in the negative.

The learned counsel for appellant in his argument submitted that the trial court committed a grave error by solely relying upon the deposition of the claimant as PW1 in C.C.No.187/2005. In his support, he relied upon a judgment of a co-ordinate Bench of this court in Bajaj Allianz General Insurance Company Limited, Mysore V/s. B.C. Kumar and another, reported in 2010(1)Kar.L.J. 210.

The learned Counsel for the respondent- Insurance company in his argument submitted that the deposition of claimant as complainant/PW1 in C.C. No.187/2005, which has been marked as Ex.R2 clearly shows that the claimant has stated that he does not know as to who caused the accident. Therefore, the observation of the Tribunal below does not require interference by this court.

The Tribunal below has extracted some portion of the deposition of the claimant as PW1 in C.C.No.187/2005, which is reproduced here below. "VERNACULAR MATTER OMITTED"

A reading of the above extract and the said deposition of the complainant in the said criminal case, though makes it clear that the complainant has clearly stated that he does not know the manner of occurrence of accident and has given a clean chit to the accused in the said crime who was incidentally the rider of the motorcycle, but the point to be considered is whether such evidence, the certified copy which was not confronted to the claimant in the Tribunal below who was examined as PW1 can be solely relied upon. In the decision relied upon by the learned counsel for appellant in support of his argument, which is Bajaj Allianz General Insurance Company Limited, Mysore .vs. B.C. Kumar and another reported in 2010(1) KAR L.J.210, a learned Single Judge of the Principal Bench of this court in a similar circumstance under Section 168 of M.V. Act 1988 was pleased to observe that a plea of guilt by the driver, which has become sole criteria for allowing the claim petition by Motor Accident Claims Tribunal. When the evidence placed before it raised a serious doubt as to the very factum of accident itself was not proper. The said judgement further go to show that a case under Motor Vehicles Act, 1988 for claim under Section 166 requires to be analyzed and appreciated independently. In the instant case, no doubt the evidence of RW1 supported by Ex.R2 go to show that the claimant as PW1 in the criminal case is stated that he does not know the manner how the accident took place. His evidence led the court to give a clean chit to the accused in the said case, but the point which cannot escape the notice of this court that the respondent-Insurance company except producing a copy of the deposition and marking it as Ex.R2 in the evidence of RW1, did not confront the said document to the claimant in his cross examination as PW1. Mere making a suggestion to the effect that the claimant had given a different version about the accident in a criminal case before some other court is not sufficient when in fact the respondent-Insurance company was in possession of certified copy of the said decision, which ought to have produced the said document and confronted the same to the claimant in the Tribunal below. Mere making a couple of suggestion that the claimant is said to have deposed in the criminal case is not sufficient to hold that the claimant had intentionally given a false evidence in one of the courts and further he is trying to make an unlawful gain out of the accident. Had the respondent- Insurance company confronted the document of deposition of the complainant/PW1 in the Tribunal below, PW1 might have given explanation for giving a different version of the incident before the court. Such an act was not done by the respondent- Insurance company. As such, merely because the deposition of the complainant in the criminal case is marked as Ex.R2 in the evidence of RW1 by that itself it cannot be concluded that PW1 as a claimant in the court below has intentionally given a different version of the evidence.

On the other hand, PW1 in his crossexamination in the Tribunal below has given explanation for delayed filing of the private complaint by him. He has stated that he was under an impression that one Sri. Venkataramana Bhat, who was in the place at that time has given a police complaint. Further, the claimant as an injured has advised for bed rest for a period of eight weeks. As such, he could not go to the Police station to enquire about the lodging of the complaint. The said statement of PW1 in the Tribunal below has not been seriously denied by the respondent-Insurance company.

For all these reasons, I am of the view that the Tribunal below has failed to appreciate these aspects, but merely embraced Ex.R2 as the sole criteria to decide issue No.1, which led to a wrong conclusion.

When the evidence of PW1 is perused, the same is supported with the document at Ex.P1 to P4, which are certified copies of FIR with complaint, Spot Panchanama along with hand sketch, charge sheet and wound certificate. Those documents are not only corroborate and prove the occurrence of the accident as stated by the claimant in his claim petition, but also prove the occurrence of the accident as stated by the claimant in his claim petition and also prove the manner of occurrence of accident by which, it can be concluded that the accident in question, which occurred on 22.07.2004 was solely due to the rash and negligent driving of rider of vehicle bearing registration No. KA-31-J-9279 by its rider and in the said accident, the claimant sustained injuries as shown in the wound certificate at Ex.P4. It is also for the reason that the said document at Ex.P4 further mentions that the injured/claimant was taken to Kshema Orthopedic and Trauma Centre Hospital Pvt. Ltd., with the history of road traffic accident on 22.07.2004 at about 9.30 p.m. It further reveals that on examination the claimant was found to have sustained fracture of Medial Malleolus with fracture fibula 1/3rd left. Thus, the finding of the Tribunal below on issue No.1 in the negative is erroneous and the said issue requires to be answered in the affirmative.

The Tribunal below since answered issue No.1 before it in the negative did not venture to discuss issue No.2 elaborately. Since the said issue No.1 is now answered in the affirmative, issue No.2 is required to be discussed in detail.

It is not in dispute that the vehicle involved in the accident, which is a motorcycle bearing registration No. KA-31-J-9279 is owned by respondent No.1 and insured by respondent. No.2. Since the finding on issue No.1 shows that the said accident occurred solely at the fault of the rider of the motorcycle, which has resulted in the claimant sustaining injuries, the respondent No.1 and 2 being the owner and insurer of the said vehicle are liable to be compensated the claimant/injured. The evidence of PW1 coupled with the would certificate at Ex.P4 shows that in the accident the claimant sustained fracture of Medial Malleolus with Fibula L/3 which is grievous injury. As such, towards pain and suffering the claimant is entitled for compensation of Rs.30,000/-. Even though the claimant in his deposition as PW1 stated that he has spent more than Rs.50,000/- towards medical expenses, the document produced and marked at Ex.P6 to Ex.P52, which are the medical bills and prescriptions go to show that he has incurred medical expenses of Rs.28,925/-. As such, towards medical expenses, he is entitled for compensation of Rs.28,925/- only.

The claimant has stated in the Tribunal below, as an agriculturist he was earning a sum of Rs.8,000/- per month. He has got produced the RTC extract at Ex.P53. Merely because, RTC shows that he possess some agricultural land, in the absence of any details, it cannot be assessed that he had monthly income of Rs.8,000/- from out of agriculture and as such, notional income prevailing as on the date of the accident, which was 22.07.2004 is to be considered. For that relevant period the Co-ordinate Benches of this court are taking Rs.3,500/- as the notional income. The wound certificate at Ex.P4 shows that from 23.07.2004 to 02.08.2004 for 10 days he was inpatient in the hospital. As such, towards loss of earning for these period of 10 days, he is entitled for compensation of Rs.1,170. For the same period towards attendant charges at Rs.100 per day, he is also entitled for compensation for Rs.1000/-. According to the claimant, due to the injury he sustained in the accident, he has suffered with permanent partial disability, which according to him is 17%. In this regard, he examined one Dr. Ashok Kalamdani as P.W.2. The said Doctor in his affidavit evidence has stated that he has examined the injured/claimant and came to a conclusion that he is suffering with the total disability of 16.6% , rounded of to 17% affecting the lower limb. In his support, the said doctor also identified the disability certificate marked at Ex.P5 as a document said to have been issued by him.

The learned counsel for the appellant in his argument submitted that the claimant is also entitled for compensation under the head future loss of income. However, said argument was vehemently opposed by the learned counsel for respondent- Insurance company, who submitted that there is no evidence to prove that due to the alleged disability the claimant has sustained any loss of income. P.W.2- doctor in his cross-examination has stated that he cannot say whether the disability mentioned in Ex.P5 applies to the whole body. That means according to the said doctor, disability is only with respect to lower limb, but not to the whole body. Even it is to be seen whether the said disability has resulted in the loss of future income to the claimant, the claimant as P.W.1 no where in his evidence has stated that the physical disability has caused loss of his future income. Even though he has stated that due to the physical disability, he is suffering a lot and unable to do any agricultural work and he is required to be dependent upon the workers for his agricultural activity. But, nowhere he has stated, it has resulted in his loss of income. That means he continues to get the same income from agricultural activity, which can be continued by engaging labours. As such, the alleged disability though might have caused him some inconvenience for enjoying pleasure of life or resulted in depriving him with some amenities, it has not resulted in causing any loss in his future income.

Therefore, the claimant is not entitled for any compensation under the head of future of loss of income, However, he is entitled to a compensation under the head loss of amenity which can be quantified at Rs.10,000/-.

Barring the above, the appellant is not entitled for any compensation under any other head. As such, the appellant is entitled for compensation as shown in the table below:

1

Towards loss of Income during laid up period

Rs.1,170.00

2

Towards pain, sufferings, mental agony Rs.30,000-00

3 Towards medical expenses Rs.28,925-00

4.

Towards loss of amenities in life Rs.10,000-00

5.

Towards attendant charges and conveyance during hospitalisation Rs.1,000-00

Total Compensation Rs. 71,095-00

Rounded of to Rs.71,100-00

Since respondent No.1 and 2 being owner and insurer of the vehicle causing accident, they are jointly and severally liable to pay the said compensation to the appellant herein. Accordingly, I answer the point partly in the affirmative and proceed to pass the following:

ORDER

The appeal is allowed in part.

The judgment and award passed by the Addl. MACT, Yellapur, dated 30.09.2008 in M.V.C.No.105/2006 is set aside. The claim petition of the claimant in M.V.C.No.105/2006 filed before the Additional M.A.C.T. Yellapur is allowed in part. The claimant therein is entitled for compensation of Rs.71,100/-(Rupees Seventy one thousand one hundred only) together with interest therein, at 6% p.a. from the date of claim petition till the date of realisation of the amount.

The respondent No.1 and 2 are jointly and severally liable to pay said compensation amount together with interest thereupon. Respondent No.2 being Insurer of the vehicle in question is liable to deposit the entire amount with interest within six weeks from the date of this judgement. After the deposit of the awarded amount by the insurance company, the Tribunal shall release the entire amount in favour of the claimant before it. Since the amount awarded is not huge amount, no order for depositing any portion of it is being made.

Registry to transmit a copy of this judgement together with lower court records to the Tribunal below without delay.

There is no order as to costs.