Karnataka High Court
Sri Santhosh Kumar G C vs The General Manager on 16 June, 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF JUNE 2017
BEFORE
THE HON'BLE MR. JUSTICE N.K. SUDHINDRARAO
MFA No.8639/2015(MV)
BETWEEN
SRI SANTHOSH KUMAR G.C.
S/O CHANDRE GOWDA
AUTO DRIVER,
R/AT. HOUSE OPP.TO SCHOOL
NEAR ARALI TREE
GUTHALU, MANDYA.
...APPELLANT
(By Sri BHUSHANI KUMAR, ADVOCATE)
AND
THE GENERAL MANAGER
CUM OWNER OF K.S.R.T.C BUS
BEARING No.KA-09-F-4022
AND INTERNAL INSURANCE CO.LTD.,
K.S.R.T.C, K.H.DOUBLE ROAD
SHANTHINAGARA, BENGALURU
HAVING DIVISION OFFICE AT MANDYA
K.S.R.T.C BUS DEPOT, M.C.ROAD
MANDYA - 571 401.
...RESPONDENT
(By Sri D.VIJAYAKUMAR, ADVOCATE)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 31.07.2015
PASSED IN MVC No.933/2012 ON THE FILE OF THE II
ADDITIONAL SENIOR CIVIL JUDGE AND ADDITIONAL MACT,
MANDYA, DISMISSING THE CLAIM PETITION FOR
COMPENSATION.
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THIS MFA HAVING BEEN HEARD AND RESERVED ON
05.04.2017 AND COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING.
JUDGMENT
This appeal is directed against the judgment and award passed in MVC No.933/2012 dated 31/07/2015 by the learned II Addl.Senior Civil Judge and Additional MACT, Mandya. The appellant is the petitioner/claimant before the Tribunal seeking compensation of Rs.9 lacs together with interest at 18% p.a., from the date of petition till realization and the said claim petition came to be dismissed.
2. To avoid overlappings and confusions, the parties are hereafter referred with reference to their status before the Tribunal.
3. It is stated that on 11.04.2012 at about 12.15 pm., at Mandya - K.M.Doddi road, Soonagahalli, near the land of Devaiah, the petitioner was returning after attending the nature call to step into the autorickshaw. At that time, the KSRTC bus bearing registration No.KA 09/F-4022 driven in 3 a rash and negligent manner so as to endanger human life came from K.M.Doddi side towards Mandya side and dashed against the petitioner, due to which, he sustained grievous injuries and immediately he was shifted to District Hospital, Mandya and thereafter to NIMHANS, Bengaluru. The petitioner claimed that he incurred medical and attendant expenditure of Rs.3 lacs and Rs.1 lac respectively. Further, he claimed that, being aged 25 years, he was earning Rs.15,000/- per month as an auto driver and thus suffered loss of income.
4. Learned counsel for the petitioner herein submits that the petitioner-claimant made out a case for compensation and he is entitled for the relief, but was negated by the Tribunal.
5. Learned counsel appearing for the petitioner-claimant submits that when the Motor vehicles Act being a social legislation, the petitioner-claimant has been unfortunate enough to be lined up with misfortune. Learned counsel submits that the petitioner-claimant was taken by surprise 4 and shock. Learned member of the Tribunal has held that the petitioner is only an informant about the accident and not the injured.
6. The respondent-Corporation therein denied the accident, registering of criminal case and injuries to the petitioner-claimant much less, incurring of expenses. Accordingly, the respondent claimed that on 11.04.2012, the driver of the KSRTC bus No.KA 09/F-4022 was moving from Mandya to Malavalli in route No.118 and at the time of the accident, it was returning from Malavalli to Mandya and there were three persons in the autorickshaw where the auto got toppled. The incident was said to be seen by the driver of the bus and the said toppling might have caused injuries to one of them. People gathered and driver came to the spot and the irate mob made galata assuming that the driver of the KSRTC bus was liable for the accident, good sense did not prevail on the mob. The respondent-Corporation further claims that the status of the vehicle was stationed with engine on. 5
7. Learned Member of the Tribunal framed the issues covering the accident on 11.04.2012 at about 12.15 pm., near the land of Devaiah on Mandya-K.M.Doddi road, involvement of the driver of the KSRTC bus bearing No.KA 09/F-4022, compensation and non-joinder.
8. The petitioner got himself examined as PW.1 and the witness-CW.1-Dr.Ramesh Ranganathan was examined through Court commissioner. Respondent-Corporation got examined one Ramesh as RW1. Petitioner filed documents as Exs.P.1 to P.18 including FIR, discharge summary etc. The respondent-Corporation got examined RW.1 and got marked Ex.R1.
9. The identity of the injured-claimant was disputed by the KSRTC-Corporation for the first time in this appeal. The case came to be registered by the Police on the basis of the report lodged by one Santhosh and the Tribunal finds that the petitioner before the Tribunal was not the one who got injured.
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10. Ex.P.2, the complaint is lodged by Santhosh Kumar G.P. S/o Puttaswamy Gowda and in the complaint he says that one Santhosh got into autorickshaw, at that time a KSRTC bus bearing No.KA 09/F-4022 was driven in a rash and negligent manner and dashed against Santhosh who fell down and sustained injuries and the complainant and one Raghavendra came to the spot. Injury certificate bears the name as Santhosh Kumar G.C and it is dated 06.06.2012. The Following injuries were said to have been sustained by him:
1) Severe Head injury.
2) Left Anterior cranial fossa fracture with fracture of posterior wall of frontal sinus.
3) Left black eye.
In the wound certificate, discharge summary from BGS Hospital, it is stated that Dr.Girish Kulkarni, Consultant ENT Surgeon treated him and the nature of injuries as stated by the patient/injured stating that a KSRTC bus hit on his back and he suffered injuries and he was treated in BGS Hospital in Kuvempunagar, Mysuru. However, there is no reference regarding the extent of injury on the limbs 7 and consequential impact on the entire body. The Medical bills are in the name of Santhosh Kumar G.C. All medical documents, prescriptions and bills refer the name of Santhosh Kumar G.C.
11. Ex.P.4, which is the treatment sheet issued by NIMHANS states the name of the injured as Santhosh Kumar, 24 years, S/o Chandrashekar. Whereas, the petitioner before the trial Court is Santhosh Kumar G.P. S/o Puttaswamy Gowda.
12. The three photographs of an injured person are neither marked as exhibits nor there is a discussion on them. It is certain that the complainant is one Santhosh Kumar S/o Puttaswamy Gowda. Case was registered in Cr.No.164/2012 for the offence punishable under Sections 279 and 337 IPC on 11.04.2012. The name of the injured is not mentioned therein. The substance of the complaint Ex.P2 is that Santhosh Kumar G.P. S/o Puttaswamy Gowda is the informant, the injured in the accident is Santhosh Kumar, 24 years. Though the photographs are not marked 8 as exhibits they are not referred to during discussion. Face of the injured with injuries and stitches is clearly visible. But, the said photographs are not marked, may be the learned Member in his wisdom felt that it was not necessary to be marked.
13. The said three photographs which are pasted to a memo are dated 24.03.2013 are filed before the Tribunal. Further, order sheet page Nos.1 and 2 are torn to half extent horizontally and literally the order sheet starts from 12.03.2014. It is necessary to mention that on a particular day as mentioned in page No.3 of the order sheet, the case file was transferred to II Addl.Senior Civil Judge and JMFC., Mandya and the proceedings in the assignee Court starts from 12.03.2014 and the next hearing date is 24.03.2014. On which day, I.A.No.1 is filed under Order VII Rule 14 (3) CPC, 1908 and there is no reference of the photographs dated 24.03.2014 in the list of documents filed on 24.03.2014. About the photographs, the reason for the finding that the petitioner- 9 claimant who filed the case is not the injured is made in the judgment, incidentally they are not marked as exhibits and the finding of the Tribunal that Santhosh Kumar G.C., is the injured and not Santhosh Kumar G.P. S/o. Chandrashekar, aged 24 years and in para No.9, the Tribunal concludes that the petitioner is not the injured person. In the above circumstances, the Tribunal repeatedly finds that the injured Santhosh Kumar G.C. in the accident is not the petitioner Santhosh Kumar.
14. Under such circumstances, reasons are not assigned by the Tribunal as to whether an enquiry was conducted considering the available, but unmarked and not considered three photographs which apparently were filed by the claimant along with the application.
15. In the context, the Tribunal was expected to be aware of the bounden duty to go through the photographs whether they pertain to the injured or not and further to give reasoning as to why the photographs which are available in the case were not looked upon nor steps taken 10 in connection with such impersonation though the Tribunal mentions the ingredients of impersonation by the present petitioner.
16. In the context and circumstances, the following points are clear:
The Tribunal entertains doubt regarding the identity between the petitioner and the injured. But, there is no pleading of such special defence by the Corporation (respondent therein).
17. Under Ex.P.1 FIR, the informant is Santhosh Kumar, 25 years, S/o Puttaswamy Gowda, but the name of the injured or the victim is not mentioned in the said exhibit. In Ex.P.2 the complaint, tone and tenor of the version of the judgment is that the complaint therein reports about the accident dated 11.04.2012 and sustaining of injuries by one Santhosh, but the informant Santhosh is not the one.
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18. The plea of impersonation not contended by the respondent-Corporation, but the Tribunals holds likewise.
19. Learned Member finds at para No.10 of the judgment as:
"xxx This attitude of the petitioner also creates doubt.
xxxx The learned counsel for the petitioner also could not convince this tribunal in this regard. For the reasons discussed, above it is crystal clear that, the petitioner, who has filed the petition is not injured person in the alleged accident and thereby the very petition itself found to be not maintainable and thereby question of considering other aspects does not arise."12
20. There was no pleading nor oral evidence nor issue, but it finds a place in the judgment though it is not a point of law. Learned Member of Tribunal finds the petitioner therein who was represented as the 'injured' though he was not. The operative portion of the judgment and award is as under;
" Petition filed by the petitioner under Section 166 of MV Act, 1988 is hereby dismissed.
It is noticed that, the petitioner has tried to mislead the Tribunal by pretending himself to be the injured person. Under these attending circumstances, it is just and proper to dismiss the petition with exemplary costs of Rs.3000/- to be paid by the petitioner. The said amount is ordered to be deposited in the District Legal Service Authority, Mandya for using the said amount for the public purpose.
If the amount is not deposited as per this order, the District Legal Service Authority, Mandya is entitled to recover the same from the petitioner.13
Send the copy of this judgment to the District Legal Service Authority, Mandya.
Draw award accordingly."
Thus, the learned Member comes to a conclusion regarding the liability and offence as well.
21. Not considering the rules of pleadings and evidence without evidence, evidence without pleadings and finding without pleading should have been considered by the Tribunal. In this connection, it is also not forthcoming in the judgment whether the learned Member saw the photograph and compared them with the face of the petitioner/claimant.
22. Further, the legal effect and consequential legal step after finding the petitioner at fault of false identity, the Tribunal concludes that Rs.3000/- as exemplary costs as payable by the petitioner.
23. In the circumstances and as the matter needed discussion and answer regarding identity or impersonation, if any, has become core issue in the circumstances, as the 14 respondent almost bases on the same principle. The Tribunal has not taken efforts to find out in the procedure provided under law more particularly including concentrating on the photos available before him or by securing the evidence of oral or documentary. The respondent-Corporation for the first time in the appeal proceedings contends that there was contact between the bus and the petitioner-claimant never sustained injuries but makes a fake claim. Learned Member notes that the petitioner-claimant in just an informant of the accident and not the injured. According to the judgment, the claimant Santhosh Kumar G.C is only the informant but not the injured.
24. Impersonation is a cognizable offence under Section 419 of Indian Penal Code. Section 419 of IPC is as under;
" 419. Punishment for cheating by personation.
Whoever cheats by personation shall be
punished with imprisonment of either
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description for a term which may extend to three years, or with fine, or with both."
The ingredients of Section 419 of Indian Penal Code are seen in the judgment as per the finding of the Tribunal. The fair hearing opportunity is the hall mark in the history of jurisprudence. Thus, the law relating to non-joinder of parties is found under Order 1 Rule 9 of Civil Procedure Code. Fair opportunity invariably applies when a new finding becomes a substantial ratio in a given case. Learned Member has not considered as to whether any one else got injured in the accident or nobody. It is seen that the learned Member of the Tribunal emphasized much in his reasoning the impersonation and the said finding is sufficient to dislodge the claim at the threshold. At the same time, the said finding has the substantial effect of giving clean chit whoever the accused in the connected criminal case for the offence of rash and negligent driving and causing injuries punishable under Section 279, 337 and 338 of IPC.
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25. The matter needs to be remanded to the Tribunal with a direction to the learned Member to adjudicate the matter keeping in mind the rules of pleading evidence, principles of natural justice and then to decide the matter MVC No.933/2012 within an outer limit of three months from appearance of the parties. In order to avoid wasting of time, both the claimant and the respondent-Corporation are directed to appear before the Tribunal on 31.07.2017.
26. It is to be noted that the matter assumes significance as the claim under the Motor Vehicles Act is supposed to reach the right person at the right time with reasonable quantum, in other words 'just compensation'. At the same time, if somebody were to impersonate and to claim as victim or injured to knock off the compensation, that becomes more serious than the first one. The Tribunal cannot wash away the responsibilities by just disposing of the case. Thus, the judgment and award passed in MVC No.933/2012 does not cover the necessary 17 points. The Tribunal further has not assigned reasons for having not considered aspects of criminal legal liability regarding impersonation.
27. In the circumstances, the judgment and award of the Tribunal in passed in MVC No.933/2012 is not a complete and well-reasoned one and keeps relevant matter away from being discussed and the judgment does not reflect true state and deserves to be set-aside.
28. In the result, this Court passes the following:
The judgment and award dated 31/07/2015 in MVC No.933/2012 passed by the learned II Addl.Senior Civil Judge and Addl.MACT., Mandya is hereby set-aside and the matter is remanded to the Tribunal for adjudication of the matter afresh by considering the fact of identity of the petitioner and also following the rules of evidence and pleadings in the light of the observations made.
Office is directed to send a copy of this order to the Tribunal with a direction therein to the learned Member of the Tribunal to dispose of the matter afresh within an outer 18 limit of two months from the date of commencement of the hearing by virtue of remand.
The parties shall appear before the Tribunal on 31.07.2017 without waiting for notice from the Tribunal.
Sd/-
JUDGE mr mv