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2014 DIGILAW 480 (KAR)

Vijay v. Shetty VS V. Sharada

2014-04-22

N.K.PATIL, P.D.WAINGANKAR

body2014
JUDGMENT N.K. Patil, J. 1. This appeal by the claimant is directed against the impugned judgment and award dated 7th September 2012, passed in MVC No. 81/2011, by the Presiding Officer, Fast Track Court-II, Motor Accident Claims Tribunal, Shimoga, (for short, 'Tribunal'), seeking to set aside the same and to award reasonable compensation for the injuries sustained by him in the road traffic accident. 2. The appellant claims to be aged about 29 years and hale and healthy prior to the date of accident. He contended that at about 9:00 P.M. on 04-12-2010, when the appellant was proceeding on his Hero Honda Splendor Plus Motor cycle bearing Registration No. KA-02/HE-7948 towards Alkola from Police Chowki on the left side of the road, in front of petrol Bunk situate at 100 ft. road, Vinobanagar, Shivamogga city, at that time, the rider of motor cycle bearing Registration No. KA-14/W-6603 drove the said motor cycle in a rash and negligent manner and dashed against the appellant's motor cycle. Due to the impact, the appellant sustained grievous injuries to his head, face and other parts of the body and the bike was badly damaged. Immediately, the appellant was shifted to Mc. Gann Hospital, Shivamogga, and thereafter, on the advise of the Doctor, he was shifted to Nanjappa Hospital, Shivamogga, where he took treatment as inpatient from 04-012-2010 to 07-12-2010 and thereafter admitted to Kasturba Hospital, where he took treatment from 07-12-2010 to 14-12-2010. 3. It is his further case that, on account of the road traffic accident, the appellant has gross facial asymmetry lengthening of mid fact more on left side and flattering of face on left side malar region and widening of roof of nose and B/L circumorbital hematoma and mouth opening was restricted and also underwent cranio facial surgery and Research Centre S.D.M. College of Dental Sciences and Hospital at Sattur, Dharwad and because of the said injuries sustained in the accident, he has undergone severe pain and agony and for the treatment of the said injuries, he has spent reasonable amount towards conveyance, nourishing food and attendant charges including medical expenses and other incidental expenses and therefore, he has to be compensated reasonably. 4. On account of the injuries sustained in the accident, the appellant filed the claim petition under Section 166 of the Motor Vehicles Act, before the Tribunal, seeking compensation of a sum of Rs.56,30,000/- against the respondents. 5. 4. On account of the injuries sustained in the accident, the appellant filed the claim petition under Section 166 of the Motor Vehicles Act, before the Tribunal, seeking compensation of a sum of Rs.56,30,000/- against the respondents. 5. It is the specific case of the appellant that, for treatment of the aforesaid grievous injuries, he took treatment at various Hospitals, namely at Mc.Gann Hospital, Shivamogga, at Nanjappa Hospital, Shivamogga from 04-12-2010 to 07-12-2010, at Kasturba Hospital from 07-12-2010 to 14-12-2010 and thereafter at S.D.M. College of Dental Sciences and Hospital at Sattur, Dharwad from 19-12-2010 to 30-12-2010, by spending huge amount and in support of the same, has produced the IMV report, wound certificate, medical bills, prescriptions, scanning report, case sheet, CT scan and X-ray reports, etc. But, the Tribunal, disbelieving the entire oral and documentary evidence has grossly erred in dismissing the claim petition itself, without awarding any compensation. Therefore, it is the case of the appellant that the appeal filed by appellant is liable to be allowed, by setting aside the impugned judgment and award passed by Tribunal and by awarding reasonable compensation for the grievous injuries sustained by him in the road traffic accident. 6. Upon service of notice to the respondents, the respondents 1 to 3 appeared before the Court through their respective counsel and resisted the petition by way of filing objections statement. In the objection statement, the respondent Nos. 1 and 2 denied the averments made in the petition, regarding the age, occupation, monthly income, employment of appellant and also denied the averments regarding the cause of accident, injuries sustained, treatment taken and medical expenses incurred by the appellant for taking treatment and manner of accident said to have occurred as alleged in the petition and claimed strict proof of the same. 7. They have further specifically stated that on the date of accident, the second respondent was coming from Alkola side with a pillion rider and in order to fill the petrol to his motor cycle was negotiating to take turn in front of petrol bunknar and in between VIPRA Trust and SUDA complex and as such as there was no street light and as the said respondent was negotiating to take turn his vehicle, speed was about 10 to 15 Kms. at that time, the appellant was coming from Police chowki towards Alkola side, without head light to his vehicle, came at high speed, in a rash and negligent driving without giving any sort of signal or horn etc. and dashed against the mid portion of the vehicle and caused the accident and there was no negligence or rash driving on the part of the said respondent and further due to rash and negligent driving by the appellant, the pillion rider suffered injuries to his head and shoulder. Accordingly, the respondent Nos. 1 and 2 prayed for dismissal of the petition. 8. In the objections statement filed by the third respondent, Insurer, it has denied all the averments made in column 3 to 8A, 10 to 14 and 22 of the petition regarding the age, income and occupation of the appellant, cause of accident, injuries sustained, treatment taken and medical expenses incurred by him for taking treatment and manner of accident said to have taken place as alleged by the appellant and claimed strict proof of the same. 9. It was further contended that the 2nd respondent drove the motor cycle bearing Registration No. KA-14/W-6603 in a normal speed by observing traffic rules and so going near petrol bunk, 100 ft. road in Vinobanagar, the appellant came from police chowki on a motor cycle without having valid driving licence and also observing the vehicles playing on the road and on seeing the motor bike which was slowly moving, the appellant became panic and lost control and he himself dashed against the motor bike and fell down and sustained some minor injuries and there was no rashness and negligence on the part of the 2nd respondent and the alleged accident happened only due to carelessness and negligent act of the appellant himself and the said respondent is not liable to pay any compensation to the appellant and that the petition is bad for non joinder of necessary parties and on all the said grounds sought for dismissal of the claim petition filed by the claimant/appellant. 10. After hearing the learned counsel appearing for both parties and on the basis of the pleadings available on record, the Tribunal framed necessary issues, which read thus: 1. 10. After hearing the learned counsel appearing for both parties and on the basis of the pleadings available on record, the Tribunal framed necessary issues, which read thus: 1. Whether the petitioner proves that he had sustained injuries in the road traffic accident that occurred on 04-12-2010 at about 9-00 P.M., in front of Petrol Bunk 100 ft. road, Vinobanagar, Shivamogga due to the rash and negligent riding of Bajaj Pulsar Motor cycle bearing Registration No. KA-14/W-6603 by its rider 2nd respondent? 2. Whether the petitioner is entitled for compensation? If so, what amount from whom? 3. What order? In order to prove the case, the claimant appellant got examined himself as PW 1 and got marked the documents as Ex. P1 to Ex. P19 and the doctors have been examined as PWs 2 and 3 and closed his side. The respondents did not adduce any evidence on their behalf. 11. The Tribunal, after appreciation of the oral and documentary evidence available on file, has elaborately discussed the issue in detail at paragraphs 16 to 18 of its judgment and specifically recorded a finding at paragraph 19 of its judgment, dismissing the claim petition holding that, the contents of Ex. P6 and Ex. P12 clearly shows that the appellant sustained injuries due to skid and self fall from the bike and thus has failed to prove issue No. 1 and accordingly answered the said issue in the negative and dismissed the claim petition filed by appellant. Being highly aggrieved by the dismissal of claim petition filed by appellant, the appellant has presented this appeal seeking reasonable compensation for the grievous injuries sustained in the road traffic accident. 12. We have gone through the grounds urged in the memorandum of appeal and the impugned judgment and award passed by Tribunal and heard the learned counsel appearing for the appellant and also the learned counsel appearing for Insurer. 13. The principal submission canvassed by learned counsel appearing for appellant is that, the Tribunal committed a grave error in proceeding to dismiss the claim petition on hyper technical ground, by relying upon Exs. P6 and P12, which are the Wound Certificate and Case sheet of the Nanjappa Hospital and Mc. Gann Hospital. 13. The principal submission canvassed by learned counsel appearing for appellant is that, the Tribunal committed a grave error in proceeding to dismiss the claim petition on hyper technical ground, by relying upon Exs. P6 and P12, which are the Wound Certificate and Case sheet of the Nanjappa Hospital and Mc. Gann Hospital. To substantiate his stand, he submitted that the second respondent himself has admitted that the accident has taken place and the vehicle is damaged and this fact is sufficient to prove that two vehicles are involved in the accident. Further, he submitted that, on account of the grievous injuries sustained in the road traffic accident, the appellant has suffered gross facial asymmetry lengthening of mid fact more on left side and flattering of face on left side malar region and widening of roof of nose and B/L circum orbital hematoma and mouth opening was restricted and he also underwent cranio facial surgery at research Centre SDM College of Dental Sciences and Hospital at Sattur, Dharwad. This aspect of the matter has been completely lost sight of by the Tribunal and merely relying upon the documentary evidence at Exs. P6 and P12, the Tribunal has proceeded to dismiss the claim petition, which cannot be sustained and is liable to be set aside, by awarding reasonable compensation for the injuries sustained by the appellant in the road traffic accident. 14. Per contra, learned counsel appearing for Respondent No. 3/Insurer inter alia, contended and substantiated the impugned judgment and award passed by Tribunal, stating that the same is passed after due appreciation of the oral and documentary evidence available on file, including the entire relevant material available and also after assigning valid and cogent reasons at paragraphs 15 to 17 of its judgment for dismissing the claim petition. To substantiate the said submission, he specifically submitted that, as per Ex. P6, the appellant fell down due to skid of the vehicle and thus sustained the said injuries. Taking this aspect of the matter, the Tribunal is highly justified in dismissing the claim petition. Further, he specifically submitted that the Tribunal rightly observed that if the appellant really had sustained injuries due to the accident as alleged in the claim petition, he being an educated person, having worldly knowledge, would have certainly narrated the real facts before the Doctor at Nanjappa Hospital, while he was taking treatment. Further, he specifically submitted that the Tribunal rightly observed that if the appellant really had sustained injuries due to the accident as alleged in the claim petition, he being an educated person, having worldly knowledge, would have certainly narrated the real facts before the Doctor at Nanjappa Hospital, while he was taking treatment. Even the discharge summary available in inpatient record which is at page 4 clearly discloses that the appellant had given a history that he sustained injuries due to skid and fall from bike on 04-12-2010 at around 9:00 P.M. near Vinobanagar and at that, he had no loss of conscious since the time of accident. Thus, the Tribunal has rightly not accepted the evidence of the appellant that he sustained injuries due to rash and negligent riding of the motor cycle bearing Registration No. KA-14/W-6603 by the first respondent. Therefore, he prayed for dismissal of the appeal with costs. 15. After careful consideration of the submission of the learned counsel appearing for both the parties, after perusal of the impugned judgment and award passed by Tribunal and the entire material available on file including the original records placed before us, it is manifest on the face of the same that, there is no error or material irregularity as such committed by Tribunal, in dismissing the claim petition filed by the appellant. The Tribunal, after appreciation of the oral and documentary evidence available on file and after assigning valid and cogent reasons at paragraphs 15 to 19 of its judgment, has recorded a specific finding of fact, holding that the contents of Exs. P6 and P12 clearly show that the appellant sustained injuries due to skid and self fall from the bike and the appellant has utterly failed to prove the issue No. 1. 16. Further, after critical evaluation of the entire material available on file, it emerges that occurrence of accident and the resultant injuries sustained by the appellant are not in dispute. It is also not in dispute that the appellant has taken treatment at various Hospitals on various occasions. But, the accident occurred due to clash or involvement of two vehicles is under serious dispute. Ex. It is also not in dispute that the appellant has taken treatment at various Hospitals on various occasions. But, the accident occurred due to clash or involvement of two vehicles is under serious dispute. Ex. P6 is the Wound Certificate issued by Nanjappa Hospital, Shivamogga which discloses that the appellant was admitted to Nanjappa Hospital on 12-12-2010 where he has given history that he had sustained injuries due to fall from the bike at Vinobanagar, Shivamogga. Ex. P12 is the in-patient record of Nanjappa Hospital, pertaining to the appellant, which discloses that the appellant was admitted to Nanjappa Hospital on 04-12-2010 at about 10:00 P.M. and it is evidence from casualty out patient slip at page 8 of the in-patient record that at the time of admission, the appellant has given a history that he sustained injuries due to skid and fall from bike on 04-12-2010 at about 9:00 P.M. near Vinobanagar, Shivamogga and he received primary aid at Government Hospital, Shivamogga. Further, the Tribunal has specifically observed that from the casualty out patient slip that he had no history of loss of conscious or vomiting since then. This clearly shows that the appellant was very much conscious since the time of accident and therefore, the statements given by him could be believed. Further, it can be seen that the Tribunal has rightly observed that the appellant is a Manager in Sushan Marketing and is well education and having worldly knowledge and if really he had sustained injuries due to accident as alleged in the claim petition, by involvement of two vehicles, he definitely would have certainly narrated the real facts before the Doctor at Nanjappa Hospital, while he was taking treatment. It is not forth coming from Ex. P12 that the history of the injuries was furnished by some other persons and not the appellant. Even the discharge summary available in in-patient record at page 4 clearly discloses that the appellant had given a history that he sustained injuries due to skid and fall from bike on 04-12-2010 at around 9:00 P.M. near Vinobanagar, he had no loss of consciousness since the time of accident. Immediately after the accident, the first document is the Wound Certificate, which is issued at the time of taking treatment. At that time, the injured would definitely give the correct reason for the injuries sustained, except in rarest of rare cases. Immediately after the accident, the first document is the Wound Certificate, which is issued at the time of taking treatment. At that time, the injured would definitely give the correct reason for the injuries sustained, except in rarest of rare cases. Such being the circumstances, the evidence given by the appellant cannot be accepted that he sustained injuries due to rash and negligent riding of the motor cycle bearing Registration No. KA-14/W-6603 by its rider, first respondent. If that was the case, he would definitely have stated the said fact at the time of taking treatment and issuance of Wound Certificate. 17. Further, it can be seen that, as per Ex. P3, initially, the appellant was admitted to Mc.Gann Hospital by his father and was well aware of the fact regarding the accident. If at all the appellant had sustained injuries due to the accident, as narrated in the claim petitioner, the father of the appellant would have definitely informed the same before the Doctor at the time of admission into the Hospital and hence, under these circumstances, it creates a doubt regarding the involvement of the vehicle in question as alleged and narrated in the claim petition. Therefore, Ex. P3, complaint also goes against the appellant. 18. It is further seen that the MLC extract of Mc.Gann Hospital is a very material document to prove the fact that the appellant had sustained injuries in the road traffic accident. But the said MLC extract has not been produced before the Court to prove that he sustained injuries due to the accident as alleged in the claim petition. Therefore, in the absence of explanation regarding the alleged mistake crept in the Wound Certificate and non production of MLC extract of Mc.Gann Hospital, the Tribunal observed that, it cannot be accepted that the appellant had sustained injuries due to rash and negligent riding of the motor cycle bearing Registration No. KA-14/W-6603 by its rider, as alleged by the appellant in the claim petition. 19. Further, it can be seen that Ex. P4 is the spot mahazar, which is prepared on 05-12-2010 in between 10:45 A.M. and 11:30 A.M. At that time, the two motor vehicles, i.e. motor cycle bearing Registration No. KA-14/W-6603 and the motor cycle bearing Registration No. KA-02/HE-7948 were produced and those vehicles were recovered for the motor vehicle inspection. In Ex. Further, it can be seen that Ex. P4 is the spot mahazar, which is prepared on 05-12-2010 in between 10:45 A.M. and 11:30 A.M. At that time, the two motor vehicles, i.e. motor cycle bearing Registration No. KA-14/W-6603 and the motor cycle bearing Registration No. KA-02/HE-7948 were produced and those vehicles were recovered for the motor vehicle inspection. In Ex. P4, it is mentioned that the offending vehicle had scratches on mask and bumper was dented. Though the offending vehicle was seized on 05-12-2010, the same was subjected to Motor vehicle inspection on 21-12-2010, at the time of inspection, the motor vehicle inspector had noticed the damages on the offending vehicle and the damages mentioned in Ex. P4 and the damages mentioned in Ex. P4 are altogether different and hence, it creates a doubt regarding the involvement of the motor cycle bearing Registration No. KA-14/W-6603 in the accident. Further, the Tribunal observed that the appellant has not adduced cogent and believable evidence to prove that he sustained injuries in the accident as narrated in the claim petition and the contents of Ex. P6, Wound Certificate and Ex. P12, case sheet of the Nanjappa Hospital clearly show that the appellant sustained injuries due to skid and self fall from the bike and has failed to prove that there was involvement of two vehicles in the occurrence of accident. The said reasoning given and the discussion of the Tribunal is just, fair and proper and we do not find any irregularity or unreasonableness in the finding recorded by Tribunal. 20. Thus, viewed from any angle and after critical and evaluation of the entire material available on file, it proves beyond all reasonable doubt that, the accident has occurred purely on account of the fault and negligence on the part of the claimant appellant and there is no involvement of two vehicles and that the injuries stated to have been sustained by him are not on account of the involvement of two vehicles but on account of skid of his bike and therefore, he being the tort-feasor, the claim is not maintainable. Hence, the Tribunal is justified in dismissing the claim petition and we do not find any justification or good ground to interfere in the well-considered, well-founded and well-reasoned judgment passed by Tribunal nor the appellant has made any good grounds for such interference. 21. Hence, the Tribunal is justified in dismissing the claim petition and we do not find any justification or good ground to interfere in the well-considered, well-founded and well-reasoned judgment passed by Tribunal nor the appellant has made any good grounds for such interference. 21. For the foregoing reasons, the appeal filed by the appellant is liable to be dismissed as being devoid of merits. Accordingly, it is dismissed.