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2021 DIGILAW 631 (KAR)

Vasudeva Kamath v. S. A. Nadeem Ulla Khan

2021-06-02

ALOK ARADHE, HEMANT CHANDANGOUDAR

body2021
JUDGMENT : Hemant Chandangoudar, J. 1. This appeal under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act' for short) has been filed by the claimant seeking enhancement of the amount of compensation, against the judgment dated 20.12.2018 in MVC. 825/2014 passed by the I Additional Senior Civil Judge and CJM and Additional Motor Accident Claims Tribunal- VII at Shivamogga (hereinafter referred to as 'the MACT' for short). 2. Facts leading to filing of this appeal briefly stated are that on 8.06.2014 at about 9.30 p.m., when the claimant was entering the marriage hall, the respondent No. 1 riding his motor cycle bearing registration No. KA-14-EF-6785 dashed against the claimant, due to which, the claimant sustained grievous injuries and complicated injuries. 3. The claimant thereupon filed a petition under Section 166 of the Act inter alia on the ground that the claimant was admitted to Nanjappa Hospital at Shivamogga for treatment and on improvement in health condition he was discharged from the hospital and was advice to take bed rest and follow-up treatment. He further pleaded that he spent more than three lakhs for his treatment and he is practicing as an Orthopedic Surgeon since 1984 and earning more than 5 Lakhs Rupees per annum. The claimant claimed compensation to the tune of Rs. 2,36,50,000/- along with interest. 4. The respondents appeared through their Counsel and filed separate written statement. The respondent No. 1 inter alia pleaded that the accident occurred due to his fault and the compensation claimed by the claimant is highly excessive. The second respondent disputed the facts that the first respondent is owner and rider of the offending motor cycle and rights and liabilities of this respondent is as per the terms and conditions of the contract. Hence, sought for dismissal of the claim petition. 5. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimant, in order to prove his case, examined himself as PW-1, and got exhibited documents namely Ex. P1 to Ex. P118. The respondents neither examined any witness nor got exhibited any document. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of the motorcycle by its rider i.e. respondent No. 1, as a result of which, the claimant sustained injuries. P1 to Ex. P118. The respondents neither examined any witness nor got exhibited any document. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of the motorcycle by its rider i.e. respondent No. 1, as a result of which, the claimant sustained injuries. The Tribunal further held that the claimant is entitled to a global compensation of Rs. 1,00,000/- along with interest at the rate of 6% p.a. Being aggrieved, this appeal has been filed by the claimant seeking enhancement of the amount of compensation. 6. Learned Counsel for the claimant submitted that the Tribunal has committed an error in awarding global compensation instead of awarding compensation towards loss of future income and other conventional heads when the material on record clearly discloses that the claimant has sustained grievous injuries and functional disability due to the accidental injuries. He further submits that when the treated doctor was not cooperating to record the evidence, the Tribunal was under an obligation to secure the presence of the treating doctor by invoking the power under Section 165 of the Evidence Act or alternatively the Tribunal should have referred the matter to the medical board for assessment of the disability. Hence, he seeks for setting aside the impugned award passed by the Tribunal and remit the matter to the Tribunal for assessing the disability of the claimant and thereafter award just and proper compensation. 7. Learned Counsel for the Insurance-Company submits that in the absence of evidence on record the Tribunal is justified in awarding global compensation to the claimant and seeks for dismissal of the appeal. 8. We have considered the submissions made by learned Counsel for the parties and have perused the record. The only question which arises for our consideration in this appeal is whether the Tribunal was justified in awarding global compensation instead of awarding compensation towards loss of earning and other conventional heads. 9. It is not in dispute that the accident occurred due to the rash and negligent driving by the rider of the motor cycle. The only question which arises for our consideration in this appeal is whether the Tribunal was justified in awarding global compensation instead of awarding compensation towards loss of earning and other conventional heads. 9. It is not in dispute that the accident occurred due to the rash and negligent driving by the rider of the motor cycle. The specific case of the claimant is that due to the accident the claimant has sustained following injuries: i) Multiple hemorrhagic contusions in right temporal lobe; ii) Diffuse acute subarachnoid bleed in right cerebral hemisphere and basal cisterns; iii) Acute subdural bleed in right fronto-parietal convexity, 8mm thickness; iv) 8 mm midline shift to left side; v) Cerebral odema; vi) Fracture of bilateral temporal bone and left parietal bone; vii) Fracture of mid shaft of right clavicle and right 6th rib. viii) Hemoperitoneum secondary to mesenteric tear. 10. The claimant to substantiate his claim got examined himself as P.W. 1 and got exhibited documents Exs. P.1 to P.118 including income tax returns, clinical reports, wound certificate, and medical bills and other medical records. Though the claimant has taken steps for securing the presence of the treated doctor before the Tribunal but failed to examine the doctor. The Tribunal also issued commission warrant by appointing a Court Commissioner to examine the doctor and due to the non co-operation of the doctor the evidence of the doctor was not recorded. The Tribunal held that the claimant has failed to prove that he has suffered any disability due to the accidental injuries resulting in loss of future income. 11. The Motor Vehicles Act is a social beneficial piece of legislation and the scope and object of the Act is to protect and to promote the interest of the claimant. The Division Bench of this Court in the case of Shri. Iqbalahamed Vs. Vice Chairman, M/s. Patel Integrated Logistics Ltd. and Another, : 2017 (2) MACR 1001 (Kar)): [ILR 2017 Kar 3045] following the decision of the Apex Court in the case of Rajkumar Vs. Ajaykumar and Another reported in (2011) 1 SCC 343 has observed, where the claimants are unable to examine the treating doctor as witness, the Presiding Officer of the Tribunal shall play a proactive role in ensuring the presence of doctor by invoking the power under Section 165 of the Evidence Act. 12. Ajaykumar and Another reported in (2011) 1 SCC 343 has observed, where the claimants are unable to examine the treating doctor as witness, the Presiding Officer of the Tribunal shall play a proactive role in ensuring the presence of doctor by invoking the power under Section 165 of the Evidence Act. 12. In the present case, though Court Commissioner was appointed to examine and record the evidence of the doctor the Commission warrant could not be executed due to non-cooperation of the doctor. The claimant cannot be made to suffer for no fault of his, the Tribunal is under an obligation to secure the presence of the doctor by invoking the power under Section 165 of the Evidence Act or in the alternate refer the matter to the medical board for assessment of disability of the claimant. 13. For the discussions in the preceding paras, we are of the considered view that, the matter requires to be remanded to the Tribunal directing the Presiding Officer of the Tribunal to summon the treating doctor and in case that the treating doctor is not available, the Tribunal shall refer the matter to the Medical Board for assessment of disability. 14. Accordingly, the appeal is allowed. The judgment and award passed by the Tribunal is set aside inasmuch as it relates to the quantum of compensation and assessment of disability sustained by the claimant. The negligence of the rider of the motorcycle bearing registration No. KA-14-EF-6785 and the liability of the insurance company to pay the compensation is confirmed. The matter is remanded to the Tribunal to summon the treating doctor and in case the treating doctor is not available, the Tribunal shall refer the matter to the Medical Board for assessment of the disability of the claimant and thereafter re-determine the compensation in accordance with law. The said exercise shall be completed by the Tribunal within a period of four months from the date of receipt of certified copy of this order. Appeal Allowed