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2023 DIGILAW 729 (KAR)

K B Basavarajappa v. Maheshkumar

2023-05-30

C M JOSHI

body2023
JUDGMENT : C M Joshi, J. Being aggrieved by the judgment and award dated 04-09-2010 passed in MVC No.299/2009 by the learned Presiding Officer, Fast Track Court-I, and Member, Addl. MACT, Mysore, whereby, the claim petition came to be dismissed, the petitioner/appellant is before this Court in appeal urging various grounds. 2. For the sake of convenience, the parties are referred to as per their rankings before the Tribunal. 3. Brief facts of the case of the petitioner are as below: That, on 14.05.2009 at about 3.00 p.m. petitioner was proceeding in scooter bearing reg. No. KA 06/H 6745 as a pillion rider along with the petitioner in MVC 301/2009 as a rider towards Kanchamalli village from Hampapura and when they reached Kanchamalli Tank, a tempo bearing reg.No.KA 45/1821 came from the opposite direction in a rash and negligent manner and dashed to the scooter of the petitioner in which he was travelling. As a result, both the rider and pillion rider fell down and sustained injuries. Immediately they were shifted to J.S.S. Hospital at Mysore, where, they took treatment as out patient and inpatient respectively. Petitioner was aged about 47 years and working as businessman and earning about Rs.6,000/- p.m. Because of the accident he sustained loss. It was further contended that, 1st respondent is the driver cum owner and 2nd respondent is insurer of tempo bearing regn No.KA 45/1821 and as such, both of them are jointly and severally liable to pay the compensation. Hence, the petitioner has claimed compensation of Rs.5,27,000/- with interest at 12% p.a. from the date of petition till the date of realization. 4. In response to the summons issued by the Tribunal, respondent Nos.1 and 2 appeared before the Tribunal through their counsel and filed separate written statement denying all the allegations made in the petition as false, frivolous, vexatious and the petitioner is put to strict proof of the same. Further contending that tempo bearing reg. No.KA 45/1821 was insured with 2nd respondent subject to the terms and conditions of policy. Further, contending that the driver of tempo bearing Reg NO.KA 45/1821 had no valid and effective driving licence as on the date of accident, the insurance company has disputed the liability. It is the further case of respondent No.2 that, the accident occurred only due to the rash and negligent riding of scooter bearing reg. Further, contending that the driver of tempo bearing Reg NO.KA 45/1821 had no valid and effective driving licence as on the date of accident, the insurance company has disputed the liability. It is the further case of respondent No.2 that, the accident occurred only due to the rash and negligent riding of scooter bearing reg. No. KA 06/ H 6745 by the petitioner in MVC No.301/2009 and he was under intoxication of alcohol and as such, it is self fall while avoiding vehicle coming from opposite direction and therefore, no liability can be attached to it and since the accident was occurred between the two vehicles, the owner and insurer of scooter bearing reg. No.KA 06/H 6745 are also proper and necessary parties and that, the petition is bad for non-joinder of necessary parties. Further, the compensation amount and the interest claimed by the petitioner is excessive and prayed to dismiss the petition. 5. On the basis of the aforesaid pleadings of both the parties, the Tribunal framed necessary issues for its consideration. 6. The Tribunal clubbed both the petitions filed by the rider and pillion rider and recorded common evidence. Petitioner in MVC No.299/2009 and MVC No.301/2009 have examined themselves as PWs-1 and 2 and examined the Doctor as PW3 and got marked Exs.P1 to P30. On the other hand, respondents examined two witnesses as RWs- 1 and 2 and got marked 8 documents as Exs.R1 to R8. 7. The Tribunal after hearing and considering the oral and documentary evidence available on file, dismissed both the petitions. 8. Being aggrieved by the dismissal of the petition, the petitioner in MVC No.299/2009 has preferred this appeal contending that the Tribunal grossly erred in holding that it was a self fall by the rider of the scooter under the influence of alcohol. It is contended that the percentage of the alcohol in the blood of the rider was nowhere found in the medical records and the fitness of the rider was not considered by the Tribunal. When it is clearly stated that the rider of the scooter fell down in a bid to avoid the impact, it conclusively show the negligence on the part of the tempo driver. However, the appellant herein was not intoxicated and he was only a pillion rider and therefore, he is entitled for the compensation. When it is clearly stated that the rider of the scooter fell down in a bid to avoid the impact, it conclusively show the negligence on the part of the tempo driver. However, the appellant herein was not intoxicated and he was only a pillion rider and therefore, he is entitled for the compensation. Hence, it is submitted that the finding of the Tribunal is not proper and the just compensation be awarded to the appellant. 9. In pursuance to the notice issued by this Court, 2nd respondent-Insurance Company appeared through its counsel and on admitting the appeal, secured the Tribunal records. 10. Heard Sri D.S. Hosmath, learned counsel for the petitioner and Sri Srishaila, learned counsel appearing for the respondent No.2 Insurance Company and perused the records. 11. The learned counsel for the appellant has submitted that the conclusion reached by the Tribunal are not justifiable in view of the fact that the petitioner/ appellant was only a pillion rider and he was not in inebriated condition and he had not contributed anything for the accident. It is submitted that the accident occurred due to the negligent act of the tempo driver and therefore, the Tribunal fell into error in holding that the petitions are not maintainable. Secondly, he contended that the involvement of the tempo was reported to the Medical Officer and the MLC extracts show the involvement of the tempo. Therefore, he contends that the appeal deserves to be allowed. 12. Per contra, learned counsel for the respondent Insurance Company submits that the involvement of the tempo do not find a place in case sheet or the MLC register and the entries in these records were made subsequent to the admission to the hospital. It is pointed out that the accident had occurred at about 2.45 p.m. and the MLC register was written at about 7.00 p.m. by which time, a false implication of the tempo was made by the petitioner and the rider of the scooter. Therefore, he submits that the conclusions reached by the Tribunal are proper and correct. 13. The perusal of the documents produced by the petitioner show that the complaint was lodged by the father of the petitioner on 15-5-2009 though the accident had occurred on 14-5-2009, which is more than 24 hours later to the accident. Therefore, the delay in registering the FIR is a point to be remembered. 13. The perusal of the documents produced by the petitioner show that the complaint was lodged by the father of the petitioner on 15-5-2009 though the accident had occurred on 14-5-2009, which is more than 24 hours later to the accident. Therefore, the delay in registering the FIR is a point to be remembered. The respondent- Insurance Company has produced the copy of the case sheet of JSS Hospital at Ex.R2. This case sheet discloses that the petitioner presented himself to the hospital on a reference by some other hospital. It was informed at JSS hospital that the RTA has taken place at 2.00 p.m. and the RTA was in the form of fall from a motor cycle. It is evident that the history was given by none else than the petitioner himself. The copy of the case sheet of the rider of the scooter is produced at Ex.R6. It is the outpatient record of the rider and it shows the history that it was a self fall from scooter while trying to avoid an opposite vehicle i.e. tempo resulting in sustaining injury of bleeding from nose. It also mention that the patient was under influence of alcohol. Later, on 14-5-2009, again, it was mentioned that the rider was on Bajaj scooter and he was hit by a Tata Bolero vehicle, following which he sustained the injuries. 14. The Insurance Company has examined its official as RW1 and he has stated that he has obtained the documents from the hospital and has produced the same before the Tribunal. Therefore, the custody of the above documents produced before the Tribunal cannot be disputed. 15. Respondent No.1 before the Tribunal is the owner of the Tempo bearing No.KA.45.1821 and he is examined as RW2. He states that the accident was not due to his negligence, however, states in his cross-examination that there was a collusion between the scooter and the tempo. It is the case of the Insurance company that the said tempo has been implicated subsequently in order to make unlawful gain. The nature of the evidence of RW2 shows that he has not adhered to the contentions taken up by him in his affidavit and has admitted the collusion in the cross-examination by the counsel for the petitioner. Therefore, his evidence has been rightly disbelieved by the Tribunal as unreliable. 16. The nature of the evidence of RW2 shows that he has not adhered to the contentions taken up by him in his affidavit and has admitted the collusion in the cross-examination by the counsel for the petitioner. Therefore, his evidence has been rightly disbelieved by the Tribunal as unreliable. 16. The above documentary evidence available on record discloses that though the accident had occurred around 2.00 p.m., the rider of the scooter turned up at the hospital at 6.00 p.m. as mentioned in Ex.R6. However, it was the petitioner who turned up before the JSS hospital soon after the accident and at that time, he has stated that it was a fall from the motor cycle. The MLC register of the JSS hospital produced at Ex.R2(c) shows that the entries were made at 7.00 p.m. and by that time, the number of the tempo was available and mentioned therein. These documents are appreciated by the Tribunal in para 13 of the impugned judgment. The Tribunal also observes that the concerned Doctor of JSS hospital did not send the police intimation to the jurisdictional police. The rider of the scooter also did not informed the police though he took treatment as an outpatient. It was only the father of the petitioner who lodged the complaint on the next day evening. These aspects have been considered at length by the Tribunal and it came to the conclusion that the involvement of the tempo is not proved. In addition to that, the Tribunal also observed that the rider of the scooter was under influence of alcohol. 17. The Appellate Court while appreciating the evidence should bear in mind that the conclusions of the Tribunal cannot be over turned simply because an alternate possibility is available. The Appellate Court should not replace its own finding only because such a probability is feasible. The Tribunal/Trial Court has the advantage of seeing the demnor of the witnesses and therefore, its conclusions are not to be disturbed only because another probability is possible. Under these circumstances, when the Tribunal has considered the evidence on record and has concluded that it is difficult to believe that there was such an accident involving the tempo, such conclusions not being perverse or arbitrary, cannot be interfered by the Appellate Court. For these reasons, I am unable to accede to the persuasive arguments by the learned counsel appearing for the appellant. For these reasons, I am unable to accede to the persuasive arguments by the learned counsel appearing for the appellant. There is absolutely no reason as to why there was a mention of a self fall in the case sheet of the petitioner. This aspect has neither been explained properly nor any independent eye witness to the accident was examined before the Tribunal. Therefore, I am unable to interfere with the conclusions reached by the Tribunal. 18. For the aforesaid reasons, the appeal is devoid of merits and as such, it deserves to be dismissed. Hence, the following: ORDER The appeal is dismissed. The impugned judgment of dismissal of the petition by the Tribunal is confirmed.