Partly allowed

Shahjahan @ Shahabuddin v. S Samson Devaprasad

Karnataka HC3 Jun 2015MFA/4290/2013

Case brief

AI extract

What is this about?

Appeal against dismissal of motor accident compensation claim. Court set aside impugned award, finding negligent riding established. Elasticated compensation awarded for pain, loss of income, and reasonable medical expenses totaling Rs.70,000.

What did the court decide?

Impugned Judgment and Award set aside. Award of Rs.70,000 with 6% interest granted to the appellant shareable by respondents.

Shahjahan @ Shahabuddin Vs S Samson Devaprasad — Motor Accident Claims | Karnataka HC (2015)

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MFA ��

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 3^RD DAY OF JUNE, 2015 BEFORE

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THE HON’BLE MR. JUSTICE A.S.PACHHAPURE

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MISCELLANEOUS FIRST APPEAL No.4290 OF 2013 [MV]

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BETWEEN:

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SHAHJAHAN @ SHAHABUDDIN S/O ABDUL SATTAR, AGED ABOUT 28 YEARS, R/AT NO.232, NEW QUARTER, CHINNAPPA GARDEN, BANGALORE-46. ... APPELLANT (BY SRI: HALESHA.R.G., ADV)

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AND:

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S.SAMSON DEVAPRASAD S/O N.SAMUEL JOSEPH, AGED ABOUT 37 YEARS, R/AT ‘D’ BLOCK, NEELADRI MAHAL, NO.114/2BR, GROUND FLOR, NANDI DURGA ROAD, BENSON TOWN, BANGALORE-560 046.

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BAJAJ ALLIANZ INSURANCE CO. LTD GROUND FLOOR, NO.31, TBR TOWER, 1^ST CROSS, NEW MISSION ROAD, ADJACENT TO JAIN COLLEGE AND BANGALORE STOCK EXCHANGE,

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MFA ��

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J.C.ROAD, BANGALORE-02. ... RESPONDENTS

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(BY SRI: A.NANCY PRINCE, ADV FOR R1, SRI: O.MAHESH, ADV FOR R2)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:28.1.2013 PASSED IN MVC NO.1132/2010 ON THE FILE OF THE I ADDITIONAL SMALL CAUSES JUDGE, MACT, BANGALORE, DISMISSING THE CLAIM PETITION FOR COMPENSATION.

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THIS MFA COMING ON FOR HEARING, THIS DAY THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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The dismissal of claim petition seeking compensation for the injuries sustained is

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challenged in this appeal.

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The facts reveal that the appellant was a pillion rider on the motor cycle bearing registration No.KA-06/18-1879 and an accident occurred on 07.03.2009 said to be due to the rash and negligent driving of another motor cycle bearing registration No.KA-04/EZ-1598. As a result, the

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MFA ��

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appellant sustained grievous injuries. He made a claim for compensation before the Tribunal.

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After recording the evidence, the claim petition has been dismissed. Aggrieved by the award, the present appeal is filed.

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I have heard learned counsel for both

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parties.

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The points that arise for my consideration

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are:

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1. Whether the appellant is able to establish the rash and negligent riding of the motorcycle bearing reg. No.KA.04/EZ-1598?

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1. Whether the appellant is entitled to any compensation? If so, to what extent?

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1. Whether the impugned Judgment and Award needs any interference?

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MFA ��

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Learned counsel for the appellant would

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submit that there is ample material on record to establish the rash and negligent riding of the motorcycle bearing reg. No.KA-04/EZ-1598 and the Tribunal has committed an error in dismissing the claim petition. It is also his submission that the material placed on record is sufficient to grant the compensation as prayed for.

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On the other hand, learned counsel for the 2^nd respondent/insurer submits that the complainant is not an eye-witness and except the evidence of interested witness-P.W.1, there is nothing on record to establish the negligent riding. So also, there is a delay of 2 days in filing the complaint and the case has been concocted by the appellant to make a false claim. It is his submission that the rider of the motorcycle is the best witness and the appellant has not examined him. He submits that there are many discrepancies in the evidence of the appellant and therefore, he claims that the Tribunal by

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MFA ��

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assigning proper reasons has rightly rejected the claim petition. On the question of compensation, he submits that the Tribunal has not given any findings and the matter may be remitted to the Tribunal. So also, it is his submission that the evidence on record is insufficient to grant any compensation. On these grounds, he has sought for dismissal of the appeal.

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To prove occurrence of the accident and rash

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and negligent riding of the motorcycle bearing reg. No.KA-04/EZ-1598 by its rider, the appellant placed reliance on the documents-Exs.P1 to 19, which include the complaint, copy of the charge-sheet, FIR., sketch, mahazar, statement, Motor Vehicles Inspector’s Report, etc.

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Apart from these documents, it is in the

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evidence of P.W.1 as well which is required to be considered. So far as the manner of the accident is considered, it is on 07.03.2009 at about 9.30 p.m.

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MFA ��

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that the appellant was proceeding as a pillion rider on the motorcycle bearing reg. No.KA-06/18-1879 and his friend was riding the vehicle. The accident was on the Queens Road, Benson Town, Bengaluru. At that time, it is his case that another motorcycle bearing reg. No.KA-04/EZ-1598 came from the opposite direction, ridden in rash and negligent manner and hit the motorcycle bearing reg. No.KA-06/18-1879. Thereby, the appellant fell down and sustained fracture of his right femur and other simple injuries. A complaint of this incident was filed by one Noor Ahmed and the copy of the said complaint has been produced at Ex.P2.

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The perusal of the complaint reveals that

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Noor Ahmed is the relative of the appellant and he filed the complaint to the Police alleging that on the date of the accident when the motorcycle was proceeding, another motorcycle came from the opposite direction ridden in rash and negligent manner and hit the motorcycle and therefore, in the

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MFA ��

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circumstances, he requested the Police to register a case. On perusal of this complaint, it reveals that he did not specifically mention that he is an eyewitness to the incident. There is nothing in the complaint to show that he has seen the accident. Anyhow, the perusal of the allegation in the complaint would reveal that a complaint having been filed attributing rash and negligent riding of the motorcycle owned by the 1^st respondent. There is a delay of 2 days in filing this complaint. Though the accident occurred on 07.03.2009 at about 9.30 p.m., the complaint of this incident came to be filed on 09.03.2009 and the complaint does not reveal any reasons for the delay. It is for this reason that it is contended by learned counsel for the insurer that the delay was utilized for concocting and to make a false claim for compensation.

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The appellant has produced injury certificate at Ex.P11. The perusal of this

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MFA ��

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certificate would reveal that the appellant had suffered the injury in a road traffic accident on 07.03.2009 at 9.45 p.m. He was examined by the doctor at the hospital for the purpose of treatment at 12.45 a.m. i.e., in the midnight, particularly 3 hours after the accident. This certificate reveals the history of the injuries is due to a road traffic accident. Thereby, some support could be gained from the contents of the injury certificate Ex.P11 to prove the version of the complainant in Ex.P2. Ex.P3 is the FIR and it reveals that the complaint was filed on 09.03.2009 at 5.15 p.m. So, it appears from the aforesaid documents that the delay was at the most 1½ days.

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That apart, as the appellant had suffered the fracture and was in the hospital, the question of he approaching the Police to lodge the complaint does not arise, may be it was due to the rider of the motorcycle either on which the appellant was proceeding or that of the rider of the other

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MFA ��

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vehicle, who could approach the Police Station, but non-approach of the aforesaid rider in my opinion does not affect the evidence of P.W.1.

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Furthermore, it is relevant to note that the

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owner of the motorcycle was impleaded as the 1^st respondent in the Tribunal. He has not appeared and no written statement is filed. In the evidence, P.W.1 states the manner in which the accident occurred. It is his contention that the motorcycle on which he was proceeding was on proper side of the road and other motorcycle came from the opposite direction, ridden in rash and negligent manner and hit their motorcycle. As could be seen from the cross-examination of P.W.1, nothing is elicited to disbelieve his version. Furthermore, the 2^nd respondent is the insurer of the other motorcycle. At least, to put-forth the averment that the version of P.W.1 is wrong, the insurer could have examined the rider of the other motorcycle. At least steps could have been taken to examine the rider to say

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MFA ��

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that the version of P.W.1 is wrong or unacceptable. When the material is placed on record by the rival parties, the same has to be weighed and thereafter the evidence which is available has to be accepted in the context of the evidence which has been produced by the adversary party. The 2^nd respondent has not taken any steps to examine the rider or place any other material on record to substantiate the contention raised in the written statement.

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That apart, after the investigation, a chargesheet was laid against the rider of the other motorcycle and copy of the charge-sheet has been produced at Ex.P1. It clearly establishes that the accident was registered by the Benson town Police Station and charge-sheet was registered by the R.T.Nagar Police Station.

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The proceedings under the Motor Vehicles Act are summary in nature. Strict principles of Evidence Act are not applicable. Even the documents which have been produced could be looked in the

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MFA ��

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summary proceedings. The appellant has produced all those documents, which are necessary to establish the rash and negligent riding of the other motorcycle by its rider. Considering these

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documents in the context of the oral evidence of P.W.1, I am of the opinion that the Tribunal ought to have taken into consideration the evidence lead by the appellant and could have held that the accident is due to the negligence on the part of the rider of the other motorcycle.

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In view of the matter, the delay of normally two days in lodging the complaint could have been weighed in proper way and in my opinion it is not sufficient to reject the complaint. Hence, I answer Point No.1 in affirmative.

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Point Nos.2 and 3: The appellant has

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suffered fracture of right femur. The Tribunal has not considered the material placed on record, so far as the quantum of compensation is concerned. Whenever, the Tribunal examines the issues, it is

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MFA ��

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necessary to it to answer each of the issues either it was in favour of the complainant or the other side. But, when issue No.2 is not answered by the Tribunal, the appellate Court could look into the matter and may come to its own conclusion and answer the issue which has been framed by the Tribunal. It is in these context, it is just and proper to look into the matter to arrive at a reasonable conclusion.

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The appellant has suffered the fracture of right femur and there is no disability. No doctor has been examined to assess the disability. The injury certificate reveals the fracture suffered by the appellant. Taking into consideration the pain that he might have undergone due to the fracture, I think it is just and proper to grant a sum of Rs.25,000-00 towards pain, suffering and mental agony.

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The appellant was a painter. To

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substantiate it, except his interested version,

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MFA ��

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there is no material placed on record and no documentary evidence is produced to prove the said fact. He was in-patient in the hospital for 2 days. Taking into consideration the probable income at the rate of Rs.5,000-00 p.m., I think a sum of Rs.10,000-00 is reasonable towards loss of income during the treatment period.

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So far as the medical expenses are

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concerned, though the appellant has produced many prescriptions, the perusal of the prescriptions would reveal that 22 prescriptions do not bear the signature of the doctor. The bills which have been produced are worth a sum of Rs.61,124-00. In view of the fact that many of the prescriptions are not signed by the doctor, I think the contention of the appellant regarding incurring of about Rs.61,124-00 towards medical expenses cannot be accepted. Taking into consideration the reasonable expenses for treating a fracture in the hospitals in Bengaluru, I

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MFA ��

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am of the opinion that a sum of Rs.30,000-00 would be appropriate towards medical expenses.

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Considering the food, nourishment, conveyance charges, etc., I think a sum of Rs.5,000-00 is proper on this head. Therefore, the appellant is entitled to a sum of Rs.70,000-00 with interest at 6% p.a. Issues are answered accordingly.

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Taking into consideration the findings on the aforesaid issues, the impugned Judgment and Award is set aside by allowing the appeal in part.

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The appellant is entitled to a sum of Rs.70,000-00 with interest at 6% p.a. from the date of the petition till its payment. The respondents are jointly and severally liable to pay the sum. The 2^nd respondent/insurance company is granted 3 months time to deposit the amount.

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Sd/JUDGE

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Ksm*

Shahjahan @ Shahabuddin v. S Samson Devaprasad

Case brief

What is this about?

What did the court decide?

Shahjahan @ Shahabuddin v. S Samson Devaprasad

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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Case details

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