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2020 DIGILAW 36 (KAR)

Javare Gowda v. M. N. Jagadeesha And Another

2020-01-06

H.T.NARENDRA PRASAD

body2020
JUDGMENT 1. This appeal is filed by the appellant challenging the judgment and award dated 12.11.2013 passed by the Court of the Senior Civil Judge & MACT, K.R.Pet in MVC 89/2009. 2. Brief facts of the case: On 5.6.2008 at about 12.45 p.m. when the claimant was traveling in an auto rickshaw bearing Registration No.KA-54-910 from K.R.Pet side towards Akkihebbalu near Kattaragatta gate, at that time, the driver of the Maruthi Omni car bearing Registration No.KA-12-M-6586 came in a rash and negligent manner and dashed against the auto. As a result, he sustained injuries and immediately he was shifted to the hospital. After recovering from injuries, the claimant filed a claim petition before the Tribunal seeking compensation. In order to support his case, he examined himself as PW-1 and submitted 10 documents. On the other hand, the Insurance Company neither examined any witnesses nor produced any documents. After appreciation of the evidence, the Tribunal granted compensation of Rs.44,787/- with interest at 8% p.a. Being aggrieved by the same, the present appeal is filed seeking enhancement of compensation. 3. The learned counsel for the claimant contended that as per the wound certificate, the claimant has sustained pain over the neck, cervical region and spinal injury resulting in 100% disability. Further, the claimant has produced medical bills, prescriptions, out patient and inpatient records. But the Tribunal is not justified in granting total compensation as merely as Rs.44,787/- on the ground that the claimant has not examined the doctor. Hence, he sought for allowing the appeal. 4. Per contra, the learned counsel for the Insurance Company has contended that the injuries suffered by the claimant are minor injuries and he has not examined the doctor regarding disability. Therefore, the Tribunal on the basis of the materials available on record has granted just and reasonable compensation. Hence, he sought for dismissal of the appeal. 5. Heard the learned counsel for the parties. Perused the appeal papers. 6. It is not in dispute that the claimant had sustained injuries in a road traffic accident occurred on 5.6.2008 due to rash and negligent driving of the offending vehicle by its driver. Due to the accident, the claimant has suffered neck injury. The Tribunal has given a finding that the claimant has not examined the doctor regarding the nature of injuries and disability suffered by him. 7. Due to the accident, the claimant has suffered neck injury. The Tribunal has given a finding that the claimant has not examined the doctor regarding the nature of injuries and disability suffered by him. 7. The Motor Vehicles Act is a social beneficial piece of legislation, which caters to the need of the claimants. The very scope and object of the Act while dealing with the claim, is to protect and promote the interest of the claimants. For both the injured, and family of the deceased would find themselves in a difficult situation after suffering an accident. Therefore, the Act tries to monetarily compensate both the injured, and the dependents of a deceased by providing certain benefits under the Act. 8. In the case of Shri. Iqbalahamed v. Vice Chairman, M/s. Patel Integrated Logistics Ltd. and Another [ILR 2017 Kar 3045] , this Court, has clearly observed that in cases where the claimants are unable to examine the treating doctors as witness, the presiding Officer of the Tribunal shall play a pro-active role in ensuring the presence of the doctors by invoking the power under Section 165 of the Evidence Act. Paragraphs-8 and 9 of the said decision is relevant and the same is extracted hereunder: '8.This case is a classic example of the lackadaisical performance of many Tribunals dealing with motor accident claims while discharging their judicial duty. Repeatedly it has come to the notice of this Court that in large number of claim petitions, the claimants are unable to produce either the treating Doctor, or the Doctor who has issued the Disability Certificate, as a witness. The claimants may be prevented from producing such witness either because of their poverty, ignorance, illiteracy, or because such witness, being doctors, are invariably too busy to appear before the Tribunals. But in these circumstances, which are beyond the control of the claimant, invariably, it is the claimant who suffers for no fault of his or her. Considering the fact that the treating Doctor, and the Doctor who has issued the Disability Certificate are material witnesses in a claim petition, it is essential that their presence be ensured by the Presiding Officers of the Tribunal by invoking the power under Section 165 of the Evidence Act. 9. Considering the fact that the treating Doctor, and the Doctor who has issued the Disability Certificate are material witnesses in a claim petition, it is essential that their presence be ensured by the Presiding Officers of the Tribunal by invoking the power under Section 165 of the Evidence Act. 9. In the case of Raj Kumar (supra), the Hon'ble Supreme Court has reminded the Presiding Officers of the Tribunals, dealing with claim petitions, that they should function neither as a neutral umpire, nor as a silent spectator. In fact, a pro-active role needs to be played by the Presiding Officers of the Tribunals. Since the Tribunal has ample powers under Section 165 of the Evidence Act to summon a court witness, the learned Tribunals are expected to exercise such powers in favour of the claimants. The Presiding Officers cannot shy away from exercising the said power on the flimsy ground that, in case such a power were to be exercised, the learned members of the Bar get agitated. Both the learned members of the Bar, and the Presiding Officers must realize that the duty of the Bar and the Bench is not only to discover truth, but is also to do justice to the parties. If the Presiding Officers were to call any person as court witnesses, the Presiding Officers are merely adopting a means to discover the truth. By no stretch of imagination, it can be said that by calling a court witness, the Presiding Officer is revealing his partiality in favour of the claimant. Therefore, no valid objection can be taken by the learned members of the Bar when the power vested in the Presiding Officer under Section 165 of the Evidence Act is invoked in favour of the claimant. 9. In the present case, the claimant has not examined the doctor regarding the disability suffered by him. Considering the injuries mentioned in the wound certificate and in view of the decision of this Court in the case of Shri. Iqbalahamed (supra), this court of the opinion that the matter needs to be remanded back to the Tribunal with a direction to the Presiding Officer of the Tribunal to summon the doctor to examine him regarding assessment of disability. 10. Accordingly, the appeal is allowed. 10. Accordingly, the appeal is allowed. The matter is remanded to the Tribunal with a direction to the Tribunal to summon the treating doctor or the doctor who is expert in the field regarding assessment of disability suffered by the claimant and thereafter reassess the compensation. The parties are directed to appear before the Tribunal along with the copy of this judgment on 24.1.2020 without awaiting for any notice from the Tribunal. The Tribunal shall decide the matter within six months from the date of appearance of the parties.