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2020 DIGILAW 1681 (KAR)

Shivakumar @ Shivu v. K. S. Ashwath

2020-09-03

N.S.SANJAY GOWDA

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JUDGMENT N.S.Sanjay Gowda, J. - These appeals are filed by the inmate of lorry - Shivakumar and the owner of the vehicle- K.M.Basavarajaiah. 2. These appeals are filed challenging the dismissal of the claim petitions. 3. The inmate-Shivakumar filed the claim petition contending that he was traveling in the lorry as a cleaner and the said vehicle met with an accident when it is collided with another lorry. He has stated that as a result of the accident, he has sustained compound fracture of right patella with displacement along with fracture of right tibia and also suffered multiple cut lacerated wounds over face and chin. He claimed that he has suffered with a permanent disability and also undergone surgeries for which he is entitled to the compensation. 4. The owner of the vehicle-K.M.Basavarajaiah filed a claim petition seeking for recover the sums that have spent to repair the damages that has caused to his lorry. 5. The Tribunal, on consideration of the evidence, has come to the conclusion that an accident had occurred. It nevertheless proceeded to hold that it was doubtful as to whether Shivakumar was traveling in the lorry and suffered injuries, since, the chargesheet indicated that Shivakumar was aged about 50 years and was son of Basavaraju, whereas according to the claim petition, Shivakumar was aged about 22 years and was son of Basaiah Swamy. It also noticed that Shivakumar claimed to be a resident of Siddapura Village of Challakere Taluk, whereas the chargesheet indicated that he was resident of Linasuru Taluk, Raichur District. 6. The Tribunal also dismissed the claim petition of the owner on the ground that he did not establish that he was the owner of the vehicle. 7. The learned counsel for the claimant contended that the first information report clearly indicates that the claimant was also called as Shivu had suffered injuries in the accident. The medical records produced also indicate that one Shivakumar, aged about 20 years had been treated for the injuries suffered in the accident. This, by itself, indicated that the claimant had suffered in the accident. He contended that having regard to this documentary evidence of the accident at the earliest point of time, the reliance placed by the Tribunal on the chargesheet can not be sustained. This, by itself, indicated that the claimant had suffered in the accident. He contended that having regard to this documentary evidence of the accident at the earliest point of time, the reliance placed by the Tribunal on the chargesheet can not be sustained. He also submitted that the claimant's name was Shivakumar and for short he has been referred to as Shivu and this should not be taken as discrepancy. He also stated that the entry made in the chargesheet by the police can not be held against him, since, he had produced positive evidence to establish the injuries suffered by him in the accident. 8. Learned counsel for the Insurance Company, on the other hand contended that the award of the Tribunal could not be interfered with as it was based on a proper analysis of the evidence. 9. It cannot be in dispute that the complaint which is lodged on 04.10.2011 indicates that one Shivu was traveling in the Lorry. The wound certificate that is produced also indicates that it is about injuries suffered by one Shivakumar. Similarly, the disability certificate also indicates that one person called Shivakumar had sustained injuries and suffered with disability. In my view, having regard to these documents, it would be necessary to the Tribunal to afford to re-assess the documentary evidence as the same is not noticed in the proper perspective. 10. The learned counsel for the appellant also submitted that the school records which indicate that the claimant was indeed one Shivakumar and that he had suffered in an accident and also sustained grievous injuries in the said accident. 11. In my view having regard to the contentions advanced and the fact that an accident did occur, which is also reflected in the police records, it would be just and necessary for the matter to be re-examined by the Tribunal and an opportunity also be given to the claimant to establish afresh as to his involvement in the accident and the injuries sustained by him in the accident. Therefore, the matter is remanded to the Tribunal reserving liberty to the claimant to produce documents to establish that he was involved in the accident and that he sustained injuries in the said accident. 12. The Insurance Company is also at liberty to adduce such evidence as it is just and necessary to establish its defence. Therefore, the matter is remanded to the Tribunal reserving liberty to the claimant to produce documents to establish that he was involved in the accident and that he sustained injuries in the said accident. 12. The Insurance Company is also at liberty to adduce such evidence as it is just and necessary to establish its defence. Similarly, the owner of the vehicle is also permitted to adduce evidence to establish that he is the lawful owner of the vehicle in question. 13. Both the matters are therefore, remanded to the Tribunal. The Tribunal shall give an opportunity to both claimant and Insurance Company to adduce evidence and to establish their respective contentions. 14. Since, the parties are represented before this Court, it is proper to direct them to appear before the Tribunal on 27.10.2020 without awaiting fresh notice. Thus, the appeals are disposed of.