Karnataka High Court
Sri G B Ravi vs H J Bhaskar on 24 January, 2013
Author: N.K. Patil
Bench: N.K. Patil
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 24th DAY OF JANUARY 2013
: PRESENT :
THE HON'BLE MR.JUSTICE N.K. PATIL
AND
THE HON'BLE MR. JUSTICE V. SURI APPA RAO
M.F.A. No.4461 OF 2009 (MV)
Between:
Sri G.B.Ravi,
S/o Bettaiah,
Aged about 25 years,
R/at Giriyarahalli Village,
Chinakurali Hobli,
Pandavaura Taluk,
Mandya District,
Now r/at C/o Kantharaju,
No.4, II Main Road,
Kumbarakoppalu, Mysore. ...Appellant
(By Sri Pavan Kumar, for Sri A.G.Sridhar, Adv.)
And:
1. H.J.Bhaskar,
Major, S/o H.J.Javaregowda,
No.2265/19,
Bharathi Nilaya,
6th Cross, 2nd Main,
Vinayakanagara, Mysore.
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2. M.B.Nagendrasimha,
M/s Bhojayya Silks,
No.72, D.D.Urs Road,
Mysore.
3. The New India Assurance Co. Ltd.,
Rep. by its General Manager,
No.73, 1st Floor, Madhavesh Complex,
Nazarbad Road, Mysore. ...Respondents
(By Sri C.R.Ravishankar, Adv. for R3
R1 and R2 - Served)
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This MFA is filed under Section 173(1) of M.V.Act against
the impugned judgment and award dated 16-03-2009 passed
in MVC No. 177/2006 on the file of the Judge, Court of Small
Causes and C.J. (Sr.Dn.) and MACT, Mysore, dismissing the
claim petition for compensation.
This MFA coming on for hearing this day, N.K.Patil J.,
delivered the following: -
JUDGMENT
This appeal by the claimant is directed against the impugned judgment and award dated 16.03.2009 passed in MVC No.177/2006 on the file of the learned Judge, Small Causes and C.J. (Sr.Dn.) & MACT, Mysore (hereinafter referred to as the 'Tribunal' for short), whereby the Tribunal by its judgment and award 3 dismissed the claim petition. Being aggrieved, the appellant felt necessitated to present this appeal.
2. Brief facts of the case are as under:
The appellant-claimant claims to be aged about 22 years, and a resident of Giriyarahalli Village, Pandavapura, Mandya District. He was hale and healthy prior to the accident. When things stood thus, he met with an accident on 13.03.2006 at 1.00 p.m. when he was waiting for bus near P.K.Sanitorium. Respondent No.1 being the driver of the car bearing registration No.CKJ 4988 came from Mysore side in high speed and rash and negligent manner and dashed against the appellant. Due to the impact, he fell down and sustained injuries. He was shifted to K.R.Hospital, Mysore, where he took treatment as in-patient for 11 days. Respondent No.1 requested the appellant not to file complaint and promised him that he will bear the medical expenses. Therefore, he could not file the 4 complaint immediately. On 24.03.2006 the appellant was shifted to JSS Hospital, Mysore. Respondent No.1 did not keep up his promise and not taken care of the appellant nor bore the medical expenses including incidental expenses. Therefore, he was constrained to file a complaint. Due to this there is a delay in filing the complaint.
It is the case of the appellant that he underwent surgery on 17.04.2006 at J.S.S.Hospital and plate, screws and rods were inserted in the back bone of the appellant. He took treatment in JSS Hospital from 24.03.2006 to 13.05.2006 for a period of 49 days as in-
patient. Even after discharge he has taken treatment as out-patient from 13.05.2006 to 24.06.2006.
It is the case of the appellant that he has spent Rs.50,000/- for medical expenses and requires another Rs.1 lakh towards future medical expenses and as per the advise of the Doctor he has taken complete bed-rest 5 for a period of 1½ years. He is unable to walk, move without attendant. He has appointed an attendant and paying Rs.2,000/- p.m. Prior to the accident he was doing agricultural work and earning Rs.5,000/- p.m. and in the evening he was running panipuri business and earning Rs.3,000/- p.m. By deducting his personal expenses, his net income comes to Rs.8,000/- p.m. Because of the injuries sustained in the accident he is unable to do his day-to-day work, agricultural work and pani-puri business. Due to which, his entire family is suffering socially and economically. Respondent No.1 is the driver of the Car, respondent No.2 is the owner of the car and respondent No.3 is the insurer. All are jointly and severally liable to pay compensation. Therefore, he prays for allowing the petition filed under Section 166 of M.V.Act claiming compensation against the respondents.
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3. Upon notice, the first respondent filed objections and contended that the petition filed by the appellant is not maintainable. It is stated that the contents of paragraphs-2 to 5, are not within his personal knowledge. It is further stated by respondent No.1 that the alleged accident has not taken place due to the negligent driving of car by him. The appellant has not sustained fracture and other injuries. He has not suffered any disability due to the injuries. He has admitted that he is the present owner of the car bearing No.CKJ 4988. He has stated that the compensation and interest claimed is exorbitant, for which the appellant is not entitled. He has also stated that the car bearing No.CKJ 4988 is insured with respondent No.3-insurer and if any compensation is awarded respondent No.3 insurer is liable to be directed to pay the compensation. Therefore, he prayed for dismissal of the petition. 7
4. The second respondent appeared through his counsel and filed detailed objections contending that the petition filed by the claimant is not maintainable either in law or on facts of the case and the same is liable to be dismissed in lemine. It is stated that there is no basis for the appellant to claim compensation of Rs.21,25,000/-. The petition is filed only to make wrongful gain and the second respondent is not liable to pay any compensation to the appellant. Further, it is stated that he came to know that the accident has not taken place as alleged by the appellant. He has also not stated as to how the accident took place. This petition has been filed suppressing the real facts and circumstances. The Car bearing No.CKJ 4988 is insured with the third respondent-insurer. In case any award is passed, the third respondent is liable to be directed to pay compensation and prayed for dismissal of the claim petition filed by the appellant. 8
5. The third respondent has filed detailed objections contending that the Car bearing No.CKJ 4988 was insured with the insurer and the policy was valid for the period commencing from 19.11.2005 to 18.11.2006. He has admitted about the alleged accident which took place on 13.03.2006. He has stated that he was not having personal knowledge about the age, avocation, income and the injuries sustained by the appellant and further contended that respondent No.1 driver was not having valid and effective driving licence to drive the specific type of vehicle as on the date of the alleged accident. Therefore he contended that the third respondent-insurer is not liable to pay any compensation to the appellant. He stated that the accident has not at all taken place and false claim petition has been filed to make wrongful gain. The compensation amount and interest claimed is exorbitant for which the appellant is not entitled. 9 Therefore he prayed that the claim petition filed by the appellant may be dismissed with costs.
6. Based on the above pleadings, the Tribunal has framed necessary points for consideration as follows:
1. Whether petitioner proves that the accident took place due to the rash and negligent driving of the car by 1st respondent and due to that accident petitioner sustained grievous injuries?
2. Whether 1st respondent proves that on the date of accident he was having a valid driving licence to drive the car?
3. Whether the petitioner is entitled to the compensation as claimed in the petition?
4. To what order or award?
7. To substantiate the case of the appellant, he has examined himself as PW1 and another witness as PW2 and got marked the documents at Exs.P1 to P259 and closed his side. On behalf of respondents-1 and 2 10 no evidence was led. The third respondent-insurer got marked the insurance policy as per Ex.R1 and closed its side.
8. After hearing the learned Counsel for both the parties and after evaluation of the oral and documentary evidence and other material available on file, taking into consideration the nature of injuries sustained by the appellant and on going through the entire medical reports of the Hospital and the contents of the FIR, charge sheet, the Tribunal has answered issue Nos.1, 2, 3 in negative and issue No.4 by final order dismissing the claim petition filed by the appellant by assigning valid reasons in paragraphs-12, 13 and 14. Being dissatisfied with the impugned judgment and award passed by the Tribunal, the appellant has presented this appeal seeking appropriate relief as stated supra.
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9. The submission of the learned Counsel for the appellant at the outset is that the Tribunal has committed grave error muchless material irregularity in dismissing the claim petition resulting in miscarriage of justice. To substantiate this point, he quipped to point out that respondent No.1 driver has pleaded guilty of the offence punishable under Sections 279 and 337 of IPC and Section 134(a) and (b) of M.V.Act. Further he submitted that FIR and charge sheet have been filed against the driver. Due to his rash and negligent driving, the accident occurred. Further, he submitted that first respondent himself has admitted that he would bear all the medical expenses incurred by the appellant when he was admitted in K.R.Hospital and J.S.S.Hospital. However, he failed to keep up his promise to make arrangement for bearing medical expenses. Therefore the appellant was constrained to give a complaint later on. During this process, delay has caused and it is not a ground for denying the 12 legitimate compensation to the appellant. Therefore, he submitted that the Tribunal has failed to take note of these aspects of the matter and dismissed the petition on hyper-technical ground that there is tampering in the history of the hospital records and injuries sustained due to the accident. They are all concocted and fabricated just for wrongful gain. These documents have been created in collusion with the staff of the Hospital and the police authorities and therefore, the same cannot be accepted. Therefore, he submitted the impugned judgment and award is liable to be set aside by allowing the appeal and granting just and reasonable compensation on account of the injuries sustained by the appellant in the road traffic accident.
10. Respondent Nos.1 and 2 are served and unrepresented.
11. Per contra, Sri C.R.Ravishankar, learned Counsel for the third respondent-insurer, at the outset 13 submitted that the instant appeal is liable to be dismissed with exemplary costs. To substantiate his submission, he has taken us through paras-12, 13 and 14 of the judgment, where the Tribunal has elaborately discussed about the oral and documentary evidence and other relevant material available on file, taking note of the conduct of the appellant by colluding with the police authorities and the hospital staff created a case just to make wrongly gain from the day the alleged accident took place till his discharge dates and the same do not tally with each other. It is nothing but a concocted one and has been put up to gain the sympathy of the Court and claim compensation. That has not been rightly accepted by the Tribunal. Therefore, he requests that the appeal filed by the appellant may be dismissed.
12. After careful consideration of the submission of the learned Counsel for the appellant and the learned Counsel for third respondent and after evaluation of the records at the threadbare and after perusal of the 14 impugned judgment and award, we do not find any error muchless material irregularity committed by the Tribunal in dismissing the claim petition filed by the appellant. The Tribunal after due appreciation of the oral and documentary evidence on file and taking into consideration the conduct of the appellant and with reference to Exs.P1 to P259, has assigned valid and cogent reasons which are well-founded and recorded a finding of fact.
13. After critical evaluation of the oral and documentary evidence, the reasonings given in paras- 12, 13, 14 are well founded and well reasoned. We do not find any error or unreasonableness or irregularity or perversity in the Judgment. The said reasonings are given after due appreciation of the oral and documentary evidence and other material available on file. Therefore, we are of the considered view, that the appellant has failed to make out a case for awarding 15 compensation before the Tribunal as well as before this Court.
Taking all these relevant factors into consideration, the instant appeal filed by the appellant is dismissed as devoid of merits.
Sd/-
JUDGE.
Sd/-
JUDGE.
JT/-