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Rajanna & Another v/s T. Basavaraju & Another

    M.F.A. No. 6237 of 2017 (MV) c/w M.F.A. No. 6236 of 2017 (MV)

    Decided On, 09 March 2018

    At, High Court of Karnataka

    By, THE HONOURABLE MR. JUSTICE B.A. PATIL

    For the Appellants: A.K. Bhat, Advocate. For the Respondents: K.A. Chandrashekara, Advocate.



Judgment Text

(Prayer: This MFA is filed under Section 173(1) of the MV Act against the judgment and award dated 08.05.2017 passed in MVC No.771/2014 on the file of the Senior Civil Judge and JMFC and XIX MACT., at Chikkanayakanahalli, awarding Compensation of Rs.5000/- with interest at 6% P.A. from the date of petition till realization.

This MFA is filed under Section 173(1) of the MV Act against the judgment and award dated 08.05.2017 passed in MVC No.756/2014 on the file of the Senior Civil Judge and JMFC and XIX MACT., at Chikkanayakanahalli, awarding Compensation of Rs.7,92,316/- with interest at 6% P.A. from the date of petition till realization.)

1. These two appeals have been preferred by the owners of the offending vehicle, assailing the judgment and award dated 8.5.2017 passed by the Senior Civil Judge and JMFC and XIX Additional MACT, Chikkanayakanahalli in MVC.Nos.756/2014 and 771/2014.

2. Heard. Appeals are admitted. With the consent of the learned counsel for the parties the same are taken up for final disposal.

3. The brief facts are that on 23.10.2013 both the claimants-respondents in both these appeals were proceeding on a motorcycle bearing Regn.No.KA-27-H- 5788, driven by Guruswamy-respondent in MFA.No.6236/2017 arising out of MVC.No.756/2014, when they came near Hosahalli, Chikkanayakanahalli at about 4.30 p.m., a lorry bearing Regn.No.KA-44-2360 came from opposite direction rashly and negligently and dashed to the motorcycle on which the claimants were proceeding, as a result of the same, they fell down and sustained injuries.

4. It was the contention of the claimants in the claim petitions filed before the Tribunal under Section 166 of the Motor Vehicles Act ('Act' for short) that immediately

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after the accident, they were taken to Government General Hospital, Chikkanayakanahalli, wherein they were treated with first-aid and as per the advise of the doctor, the claimant-Guruswamy was shifted to THS Super Speciality Hospital, Tumkur, where he was admitted as an inpatient from 23.10.2013 to 30.10.2013 and was operated. It was further contended by the claimant-Guruswamy that by doing agricultural work and raring hybrid cows, he was earning Rs.15,000/- per month. Because of the injuries sustained by him in the accident in question he is not able to do his agricultural work and to attend his day-today work. Hence, they prayed for granting of compensation.

5. In pursuance to the notice issued by the Tribunal, the owners of the offending vehicle, i.e., appellants herein filed the objections by denying the contents of the claim petitions contending that the said accident has been occurred only on the fault of the rider of the motorcycle himself; he was not having valid and effective driving license and the compensation claimed is exorbitant. On these grounds, they prayed for dismissal of the claim petitions.

6. On the basis of the aforesaid pleadings, the Tribunal has framed the following issues:

Issues in MVC.No.756/2014

1. Whether the petitioner proves that he sustained the injuries in the accident took place on 23.10.2013 at about 4.30 p.m., near Hosahalli, on Doddarampura- Chikkanayakanahalli road, due to rash and negligent driving of Lorry bearing Regn.No.KA- 44-2360 by its driver?

2. Whether the petitioner is entitled to compensation? If so, to what extent and from whom?

3. What order or award?

Issues in MVC.No.771/2014

1. Whether the petitioner proves that he sustained the injuries in the accident took place on 23.10.2013 at about 4.30 p.m., near Hosahalli, on Doddarampura- Chikkanayakanahalli road, due to rash and negligent driving of Lorry bearing Regn.No.KA- 44-2360 by its driver?

2. Whether the petitioner is entitled to compensation? If so, to what extent and from whom?

3. What order or award?

7. In order to prove the case of the claimants, petitioner in MVC.No.756/2014 (respondent in MFA.No.6236/2017) came to be examined as PW.1 and petitioner in MVC.No.771/2014 (respondent in MFA.No.6237/2017) came to be examined as PW.2. They also got examined one Dr.G.M.Shivakumarappa as PW.3 and got marked the documents at Exs.P1 to P86. On behalf of the owners of the vehicle, no evidence was led. After hearing parties to the lis, the impugned judgment and award came to be passed by the Tribunal. Assailing the same, the owners of the offending vehicle are before this Court in these appeals.

8. It is the contention of the learned counsel for the appellants that when the alleged accident took place, the pillion rider did not note down the vehicle number and subsequently the vehicle has been implicated in the complaint. By relying upon Ex.P5, he contended that when the claimant-Guruswamy was taken to the Government General Hospital, Chikkanayakanahalli, the history given was the involvement of a tempo in the alleged accident near Hosahalli, whereas in Ex.P85, the history given as RTA by self-fall from the motorcycle. He further contended that before the Tribunal the claimants have contended that the alleged accident has taken place due to involvement of a lorry bearing Regn.No.KA.44- 2360. All these materials clearly indicate the fact that the said vehicle which has been mentioned in the claim petitions has not been involved in the alleged accident and the claimants by fabricating the documents have implicated the said vehicle only with an intention to claim the compensation by registering a false case. He further contended that 'men may lie, but the circumstances may not' and the fraud which is being played to the Court is not going to be hided. The fraud and justice do not go hand in hand. In that light, he contended that all the documents on record clearly indicate that the vehicle has been planted by the claimants with an intention to claim the compensation. On these grounds, he prayed for allowing the appeal by quashing the impugned judgment and award.

9. Without prejudice to the aforesaid contentions, learned counsel for the appellants contended that if at all this Court holds that the said vehicle has been involved in the accident in question, then under such circumstances, the disability assessed by the Doctor-PW.3 is on the higher side and the Tribunal ought to have taken 1/3rd of 40%, in that light, the compensation awarded by the Tribunal appears to be on the higher side and the same has to be proportionally reduced in accordance with law.

10. Per contra, learned counsel appearing on behalf of the claimants-respondents herein vehemently argued by contending that immediately after the accident, the case was registered as per Ex.P1, wherein it has been specifically stated that the vehicle involved in the accident is a milk lorry which came and hit the motorcycle on which the claimants were proceeding and subsequently criminal case registered also clearly indicates that the investigation has been done on the said aspect and a charge sheet has been laid as against the driver of the vehicle. He further contended that the said charge sheet has not been challenged neither by the driver nor the owners of the said vehicle. He further contended that though it was the case of the owners before the Tribunal that the vehicle has been planted, for the reasons best known to them, the owners have not stepped into the witness box to substantiate the said contention. When they take up a contention and fail to prove, then under such circumstances, the contention of the claimants has to be accepted. He further contended that when the injured Guruswamy was taken to the hospital, he was in semiconscious state and it is not forthcoming as to who gave the information to the hospital authorities. He further contended that though the concerned doctor was examined as PW.3, during the course of his cross-examination, nothing has been elicited in order to substantiate their contention. On these grounds, he prayed dismissal of the appeals by confirming the impugned judgment and award.

11. I have given my anxious and careful consideration to the submissions made by the learned counsel for both parties. I have also carefully gone through the records, including the impugned judgment and award. Before discussing the controversy in this case, it is relevant to mention here itself that the claimant-respondent in MFA.No.6237/2017 arising out of MVC.No.771/2014 has been awarded compensation of Rs.5,000/- with interest at 6% per annum. In view of Section 173(2) of the Act, which specifies that no appeal shall lie against any award of a Claims Tribunal if the amount in dispute in the appeal is less than Rs.10,000/-. Hence, at the outset, the appeal in MFA.6237/2017 is not maintainable. However, since in another appeal MFA.6236/2017, the issues raised are going to affect the said case, both the cases are taken up together for final disposal.

12. It is the contention of the appellants' counsel that at the time when the alleged accident has taken place, pillion rider did not note down the vehicle number and when the claimant-Guruswamy was taken to the Government General Hospital, in Ex.P5 it has been mentioned that the vehicle involved in the accident is a tempo and in the case sheet at Ex.P85 it has been mentioned as self-fall and when the claimant was taken to THS Super Speciality Hospital, at Ex.P81 it has been mentioned as hit by a LMV (tempo). Under the said facts and circumstances, he contended that the vehicle involved itself is doubtful and the said evidence indicates the fact that the said vehicle has been planted. As could be seen from the records, immediately after the accident, the rider of the motorcycle Guruswamy was taken along with the pillion rider Government General Hospital and the history mentioned in the case sheet discloses the fact that RTA has been caused by a tempo at about 4.45 p.m., on 23.10.2013. The position of the injured has been mentioned as he was in sub-conscious state when he came to be examined. When he was said to be in sub-conscious of mind, then under such circumstances, I feel that it is not the statement or the information which has been given by the claimant with regard to the type of the vehicle which was involved in the accident. Even as could be seen from Ex.P81, it has been mentioned that the vehicle involved is LMV and in the case sheet it has been mentioned as self-fall from the motorcycle. Though there is inconsistency in mentioning of the records in different hospitals, the fact remains is that the said claimant met with an accident and he was taken to the hospital.

13. It is well established principle of law that the person who contends must prove his contentions and if he fails, then the said contention also fails. If the entire records are perused, though the owners of the vehicle have made out their case by filing the written statement contending that the vehicle has been planted and the said vehicle has not been involved in the accident, for the reasons best known to them they have not stepped into the witness box to substantiate the said contention. Hence, the said contention has remained as contention without there being any proof. It is also well established principle of law that the party to the proceedings cannot take advantage of the weakness of the other side. When all the records are perused, though there appears to be some variations in mentioning the type of vehicle in the records, nothing has been brought either during the course of cross-examination or by production of any other material to show as to why the said vehicle has been involved in the alleged accident and with regard to the animosity. The records clearly indicate that the claimants and the owners of the vehicle are residents of the same place. Under such circumstances, there must be some animosity or ill-will so as include the vehicle in the alleged accident.

14. Though it is contended that the vehicle belonging to respondent No.1-owner has been falsely implicated in the case, when a charge sheet has been led as against the driver, the same has not been challenged before any Court of law. If really the vehicle has not been involved and falsely implicated, then definitely, he could not have kept silent without challenging the same. This attitude and conduct of the owners of the vehicle clearly indicates that only with an intention to avoid the payment of compensation, they are taking the advantage of the variations mentioned in the records and put forth their case.

15. Another surprising thing which is noticed by this Court is that if at all the vehicle which has been planted for the purpose of claiming compensation, admittedly the vehicle which has been mentioned is not having any force of insurance. Under such circumstances, the contention of the learned counsel for the appellants in this behalf, does not appear to be having any force in law and the same is liable to be rejected and accordingly it is rejected.

16. No doubt, I agree with the contention taken up by the leaned counsel for the appellants that 'men may lie, but the circumstances may not'. But while considering the said aspect, the case has to be looked into in its entirety. It is the duty of the Court to ascertain the truth and then to give justice. No doubt the fraud and justice would not go hand in hand. But if we look at the conduct of the appellants-owners of the vehicles, they have not come with clean hands by taking a specific and definite plea in this behalf. In that light, the appellants have not made out any case.

17. Learned counsel for the appellants by drawing my attention has contended that the required blood was secured at 7.30 p.m. on 23.10.2013, prior to the admission of the patient Guruswamy who was admitted in the hospital at 8.00 p.m. on 23.10.2013, also creates a doubt in the case of the claimant. Though the records would indicate that the required blood has been secured about 7.30 p.m. on 23.10.2010, i.e., prior to the admission of the claimant to the hospital, initially the claimant was admitted to the Government General Hospital, Chikkanayakanahalli, where he was treated with first-aid. As per Ex.P5 at the time of making entry, it has been mentioned that the injury is grievous in nature and at the time of referring the patient to THS Super Speciality Hospital, the information might have been given to the concerned hospital for the purpose of securing required blood immediately and therefore the hospital authorities might have secured the blood before the patient got admitted to the said hospital. Hence, only on the basis of securing blood prior to the admission of the patient, no doubt can be raised. In that light, the said contention also fails and the same is rejected.

18. The alternative contention taken up by the appellants counsel is that the compensation awarded by the Tribunal is on the higher side and the disability taken is also on the higher side. As could be seen from the impugned judgment and other records, it would indicate that due to the accidental injuries the claimant- Guruswamy has been operated by removing his spleen. The doctor-PW.3 has assessed the disability to the extent of 40% to the whole body. Spleen is an important organ in the body of a person. It acts as a filter for blood as part of the immune system. Though by removal of the spleen, the person can lead his normal life, he has to depend upon alternatively for the immune system and in that light the compensation has to be assessed.

19. In view of the aforesaid facts and circumstances, the Tribunal by taking into consideration the notional income of the claimant at Rs.6,000/- per month in the absence of any material to substantiate that he was earning Rs.15,000/- per month by doing agricultural work and raring of hybrid cows and by taking 40% disability to the whole body has awarded an amount of Rs.5,18,400/- towards loss of future income; an amount of Rs.50,000/- towards pain and suffering and loss of expectation of life; Rs.1,73,916/- towards the medical expenses and attendant charges. In all, the Tribunal has awarded Rs.7,92,316/-. On careful consideration of the documents and other evidence produced, it clearly indicates the fact that the disability assessed by the doctor-PW.3 appears to be on the higher side, though the spleen has been removed. Under such circumstances, 1/3rd of 40% of disability could have been taken in this behalf. If the income is taken at Rs.6,000/- per month and after applying proper multiplier of '18' the claimant- Guruswamy is entitled to an amount of Rs.1,68,480/- towards loss of future income.

20. In so far as the compensation awarded by the Tribunal towards pain and suffering and the medical expenses and attendant charges is concerned, the same is not disturbed. But, the Tribunal has awarded Rs.50,000/- towards loss of expectation of life including pain and suffering the same is also undisturbed, but not under the said head, but under the head of pain and suffering and loss of amenities of life, the future expenses for the purpose of maintaining immunity and other medical expenses.

21. In view of the aforesaid facts and circumstances and the discussion held by me, the respondent in MFA.6236/2017 (petitioner in MVC.756/2014) is entitled to Rs.4,42,396/ as against Rs.7,92,316/- with interest at 6% per annum.Accordingly, MFA.6237/2017 is dismissed being devoid of merit. MFA.No.6236/2017 is allowed in part. Impugned judgment and award passed by the Tribunal in MVC.No.756/2014 is modified to the extent as indicated above.

The amount in deposit may be transited to the jurisdictional Tribunal forthwith Registry is directed to draw the award and send back the records.

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