(Prayer: This MFA is filed under Section 173(1) of the Motor Vehicles Act, against the judgment and award dated 04.04.2013 passed in MVC No.339/2012 on the file of the I Addl. Senior Civil Judge and M.A.C.T. at Gulbarga, partly allowing the petition and awarding the compensation amount of Rs.15,32,000/- with interest @ 6% p.a.)
Raghvendra S. Chauhan, J.
1. The Royal Sundaram Alliance Insurance Company Limited is aggrieved by the award, dated 04.04.2013, passed by the I Addl. Senior Civil Judge and MACT, Gulbarga (henceforth to be referred to as the 'learned Tribunal'), whereby the learned Tribunal has granted a compensation of Rs.15,32,000/- along with an interest at the rate of 6% p.a. from the date of filing of the claim petition till the date of realisation to the respondent- claimant Shivanand, a 32 years old young man, who become paraplegic due to a vehicular accident.
2. Briefly, the facts of the case are that on 10.02.2010, about 1.00 a.m., the claimant, and one Somashekhar were returning to their village in a Tractor-Trailer
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, after unloading the agricultural produce at APMC Market Yard. When their Tractor-Trailer was near Hipperga village, situated on the Jewargi-Sindagi road, a lorry, bearing Reg. No.KA-32/B-1007, being driven rashly and negligently, dashed against the Tractor-Trailer. Consequently, the respondent-claimant fell down on the ground and sustained grievous injuries, namely post traumatic parapledgia, and traumatic compression, fracture D11 vertebra, retropulsed fracture fragment causing significant indentation over spinal cord. Immediately, he was rushed to the Government General Hospital at Gulbarga. At the hospital, the doctors reffered the respondent-claimant to the Basaveshwara Hospital. At the Basaveshwara Hospital, he was an inpatient for about four days. Subsequently, he was taken to the Yashodhara Hospital, Solapur, where he was not only an inpatient, but also underwent an operation. According to the respondent-claimant, he incurred about Rs.6.00 lakhs towards the medical expenses alone. Due to the accident, he has become totally paralyzed. Therefore, he filed a clam petition before the learned Tribunal.
3. In order to support his case, the respondent- claimant, examined himself as PW.1, and Dr. Raju Kulkarni as PW.2, and submitted fifteen documents. On the other hand, the Insurance Company examined a single witness, and submitted two documents. After appreciating the evidence submitted by both the sides, the learned Tribunal granted the compensation to the respondent-claimant as aforementioned. Hence, this appeal by the Insurance Company.
4. The learned counsel for the appellant has raised three contentions before this Court: firstly, since it was a head on collision between the two vehicles, the learned Tribunal should have treated this case as a case of contributory negligence. Therefore, the learned Tribunal was not justified in imposing entire liability upon the driver, the owner and the Insurance Company of the offending vehicle. Secondly, although the driver of the offending vehicle had a licence to drive a light motor vehicle, but at the time of driving the lorry, in fact he was driving a heavy motor vehicle. Therefore, he did not have a valid licence to drive the offending vehicle. Hence, the Insurance Company could not have been imposed with the liability to pay the compensation to the respondent-claimant. Lastly, Dr. Raju Kulkarni (PW.2) is an Orthopedic Surgeon, but was not the treating doctor. Therefore, his testimony could not be accepted. Although, Dr. Kulkarni (PW.2) has assessed the disability of the respondent-claimant as 90% of the whole body as per Ex.P11, since he was not the treating doctor, his testimony should have been ignored. Therefore, the learned Tribunal was not justified in concluding that the respondent-claimant had suffered 90% of disability of the whole body.
5. On the other hand, the learned counsel for the respondent No.1-claimant, Mr. Babu H. Metagudda, has pleaded that the learned Tribunal has relied upon both oral and documentary evidence to come to the conclusion that it is the offending vehicle, which was being driven so rashly and negligently that when it collided with the Tractor-Trailer, it went on the wrong side, that is towards the right side of the road, and into the kaccha part. Thus, the negligence of the driver is writ large in this case. Secondly, the appellant has not produced any evidence with regard to the fact that the driver did not have a valid driving licence. A mere statement does not buttress the plea. Therefore, the appellant was required to produce sufficient evidence to prove its plea. Since it had failed to discharge the burden, the learned Tribunal was certainly justified in rejecting the plea that the driver did not have a valid driving licnece. Thirdly, even if Dr. Kulkarni (PW.2) is not a treating doctor, the learned Tribunal has noticed, in the impugned award, that the respondent-claimant was brought to the Court on a wheel chair, and both his lower limbs were almost not working. Thus, it would be obvious that the respondent-claimant had become physically dis-functional. Hence, the learned Tribunal was justified in believing the testimony of Dr. Kulkarni (PW.2) that 90% of the body was disabled, due to the injuries suffered in the vehicular accident. Hence, the learned counsel has supported the impugned award.
6. Heard the learned counsel for the parteis, and perused the impugned award.
7. A bare perusal of the impugned award clearly reveals that in his testimony, the respondent- claimant had clearly stated that it is the offending vehicle, which was being driven rashly and negligently, which came and collided with the Tractor-Trailer, in which he was travelling. Since he is an injured witness, he is the star witness of the case. Despite subjecting him to a lengthy cross-examination, the witness could not be shattered. Therefore, the learned Tribunal was justified in relying on his oral testimony.
8. Moreover, the Tribunal has considered the documentary evidence: firstly, the Complaint (Ex.P1a) lodged by the co-traveler Mr. Somashekhar; secondly, the fact that after a thorough investigation, the police had charge-sheeted the driver of the offending vehicle; thirdly, the fact that the respondent-claimant, in his statement given to the police under Section 161 of Cr.P.C., had made a specific allegation against the driver of the offending vehicle. And most importantly, the spot mahazar (Ex.P3), which clearly reveals that the offending vehicle went on the wrong side towards the right side and dashed against the Tractor-Trailer. Furthermore, the fact that according to the IMV report (Ex.P4), a heavy damage has been caused to both the vehicles, thus clearly indicating that the vehicles had collided with each other with great force. The spot mahazar (Ex.P3) further reveals that after dashing the tractor and trailer, the offending vehicle went completely towards the right side, it left the tar road, and went into the kachha part, on the side of the road. Considering the ample documentary evidence, the learned Tribunal was justified in holding that the negligence lay solely on the shoulder of the driver of the offending vehicle. Therefore, the contention raised by the learned counsel for the appellant that since the vehicles had collided head on, a presumption should be drawn that it is a case of contributory negligence, the said contention is belied by the record itself. Hence, the submission is unacceptable.
9. As far as the plea with regard to the driving licence is concerned, suffice it to say that it was the duty of the Insurance Company to establish its plea through cogent and convincing evidence. However, the appellant - Insurance Company has failed to do so. During the course of the proceeding, the appellant did not take any steps to produce any documentary or oral evidence to establish its plea. It is only at the fag end of the trial, in fact, after the final arguments were over, and the case was scheduled for pronouncement of judgment, suddenly an application was filed by the Insurance Company for reopening the case by producing one driving license extract, and by praying that the RTO, Gulbarga should be summoned as a witness. Relying on the Division Bench decision of this Court rendered in Rabiya Bi Kassim M /Vs/ The Country Wide Consumer Financial Service Limited (ILR 2004 KAR 2215), the learned Tribunal was justified in concluding that after the final arguments are over, and a case is kept only for pronouncement of judgment, nothing is required to be done by the Tribunal except to pronounce the judgment itself. Therefore, during this interim period, a party cannot file an application for reopening its case. Thus, the learned Tribunal is certainly justified in drawing the conclusion that the appellant has failed to establish its plea that the driver did not have a valid driving licence.
10. Although it is true that Dr. Kulkarni (PW.2) was not the treating doctor, he is merely an Orthopedic Surgeon, but he has given his opinion based on the disability certificate (Ex.P11). More importantly, the learned Tribunal has noticed the condition of the respondent-claimant when he was brought on a wheel chair into the Court. The learned Tribunal has clearly noticed the fact that both the lower limbs of the respondent-claimant were dis-functional. According to the testimony of the respondent-claimant, he is unable to carry out his daily chores and he requires an attendant even for answering the call of Nature. Thus, it would be obvious to any Court, even if the medial witness was not produced by the respondent-claimant, that the claimant has turn into a vegetable. Therefore, due to the injuries suffered by the respondent in a vehicular accident, his body had become totally dis-functional. Hence, the conclusion drawn by the learned Tribunal that the respondent has suffered 90% disability of the whole body cannot be fault by this Court. Therefore, the third and last contention raised by the learned counsel for the appellant is clearly unsustainable.
For the reasons stated above, this Court does not find any merit in the present appeal; the same is, hereby, dismissed.
The statutory amount deposited before this Court by the Insurance Company shall be transmitted to the concerned Tribunal.
The Insurance Company is directed to deposit the entire compensation amount, along with an interest at the rate of 6% p.a., from the date of filing of the claim petition till the date of realisation with the Tribunal within a period of one month from the date of receipt of a certified copy of this judgment. The Tribunal is directed to disburse the said amount forthwith in favour of the respondent-claimant.