Remanded

Sunil Urf Sunil Kumar S/O Basavaraj Hanakanahalli v. Shashikala W/O Mahadev Naik

Karnataka HC14 Oct 2019MFA/103092/2015

Case brief

AI extract

What is this about?

The High Court of Karnataka set aside the Motor Accident Claims Tribunal's award granting Rs.60,000 to an appellant who lost his leg in a bus accident. The Court held the Tribunal failed to summon the treating doctor under Section 165 of the Evidence Act and remanded the matter for fresh disposal. The judgment also directed parties to appear before the Tribunal on a specified date without further

What did the court decide?

Judgment and award of the Tribunal set aside; matter remanded for fresh disposal after summing up treated doctor under Section 165 of Evidence Act.

Sunil Urf Sunil Kumar S/O Basavaraj Hanakanahalli Vs… — Motor Accident Claims | Karnataka HC (2019)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 14^TH DAY OF OCTOBER, 2019

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BEFORE

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THE HON’BLE MR. JUSTICE H.T.NARENDRA PRASAD

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MFA NO 103092 OF 2015 (MV/D)

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BETWEEN

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SUNIL URF SUNIL KUMAR S/O BASAVARAJ HANAKANAHALLI, AGE:18 YEARS, OCC:STUDENT, R/O:GOVERNMENT COLLEGE, NAVANAGAR, HUBBALLI NOW R/O:RAYANAL, HUBBALLI

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... APPELLANT

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(BY SRI. B S SANGATI, ADV.)

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AND

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SHASHIKALA W/O MAHADEV NAIK, AGE:MAJOR, OCC:OWNER OF THE BUS BEARING NO.KA-19/D-6219, R/O:RAJMAHAL, N.H.NO.48 ADYAR, MANGALURU-574143.

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THE DIVISIONAL MANAGER, NATIONAL INSURANCE COMPANY LIMITED, ANAND BUILDING, 1ST FLOOR, N.H.17, KALAL, MANGALURU, REP BY THE DIVISIONAL MANAGER, STATION ROAD,DHARWAD. ... RESPONDENTS (BY SRI.G.N.RAICHUR, ADV FOR R2; NOTICE TO R1 SERVED)

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THIS MFA FILED U/S.173(1) OF MOTOR VEHICLE ACT 1988, AGAINST THE JUDGMENT AND AWARD DATED 04.09.2015 PASSED IN MVC NO.348/2014 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE AND MEMBER MOTOR ACCIDENT CLAIM TRIBUNAL, HUBBALLI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal is filed by the claimant challenging the judgment and award dated 04-09-2015 passed by the I Additional Senior Civil Judge, Hubballi, in MVC No.348/2014, whereby the Tribunal has granted compensation of Rs.60,000/- with interest at 6% p.a.

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Brief facts of the case are that on 24.03.2014 at about 7:15 hours the claimant was traveling in bus bearing registration No.KA.-19/D-6219 as authorized passenger, when the bus came near Karnataka Circle bus stop, Navangar, Hubballi, the claimant and other passengers were intending to get down from the said bus, at that time, the driver of the bus without observing the passengers took the bus in reverse direction in a rash

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and negligent manner. Thereby, the claimant lost control over the body and fell down, and front left side wheel of the bus ran over the left part of the body of the claimant and caused accident. Due to the impact, the claimant sustained crush injury of the left leg. Immediately he was shifted to SDM hospital, Sattur, wherein he was undergone surgery, but his left leg was amputed below the knee. After recovering from the injury the claimant filed claim petition before the MACT, Hubblli.

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In order to establish his case, the claimant examined himself as PW-1 and also examined Dr.Madhuchandran R as PW.2, got marked 14 documents as Exs.P-1 to P-14. On behalf of the respondents, the Insurance Company has neither examined any witness nor produced any document. On appreciation of the oral and documentary evidence on record, the Tribunal granted compensation of Rs.60,000/- with interest at 6% per annum. Being aggrieved by the same, the claimant has filed this appeal for enhancement of compensation.

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Sri.B.S.Sangati, learned counsel appearing for

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the claimant contended that due to the accident, the claimant has suffered crush injury on the left leg and his left leg was amputated below the knee. He has produced disability certificate as Ex.P.9, wound certificate as Ex.P.4. To establish that there is amputation to left leg, he has examined Dr.Madhuchandran. R as PW.2. The Tribunal has not granted any compensation towards loss of future earnings. Hence, he sought for allowing the appeal.

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Per contra , Sri. G.N.Raichur, learned counsel appearing for the Insurance Company contended that even if the claimant has produced Ex.P.9 disability certificate and he has examined Dr.Madhuchandran R as PW.2, but he is not the treated Doctor. Further, he disputed the disability certificate and submits that tribunal has rightly not awarded any compensation towards loss of future earnings. Hence, he sought for dismissal of the appeal.

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Heard the learned counsel appearing for the parties and perused the materials on record.

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It is not disputed that the claimant has

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suffered injury due to the accident occurred on 24.03.2014 due to rash and negligent driving of the driver of the bus bearing registration No.KA-19/D-6219 due to the accident, his left leg was amputated below knee. To establish the same, he produced Ex.P.9 disability certificate, Ex.P.4 wound certificate and also photographs at Ex.Ps.10 and 11 and he has examined Dr.Madhuchandran R as PW.2, who is not a treated Doctor. The tribunal has not assessed loss of future income. For disability, this Court in the case of Shri.Iqbalahamed V/s. Vice-Chairman, M/s. Patel Integrated Logistics Ltd. And Another reported in ILR 2014 KAR 3045 as held 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

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be prevented from producing such witness either because

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of their poverty, ignorance, illiteracy or because such witness, being Doctors, are invariably too busy to appear before the tribunal. 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.

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In the case on hand, the claimant has produced disability certificate as Ex.P.9 and wound certificate as Ex.P.4 and photographs as Ex.Ps.10 and 11, but the treated doctor has not been examined. In view of judgment of this Court in the case of Shri.Iqbalahamed stated supra, under Section 165 of the evidence Act, the Court has to summon the treated doctor as a witness. In the case on hand, the Court has

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failed to exercise power under Section 165 of the evidence Act. Hence, this matter requires for reconsideration. Therefore, judgment and award passed by the tribunal is set aside. The matter is remanded to the concerned tribunal for fresh disposal after giving opportunity to both the parties and the tribunal is directed to examine the treated doctor after summoning him , and to dispose of the matter in accordance with law within six months from the date of receipt of copy of this order since accident relates to the year 2014. In the interest of justice, all the parties are directed to appear before the tribunal on 12.11.2019 without expecting notice form the concerned tribunal.

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Office is directed to send back LCR to the

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concerned tribunal forthwith and also directed to communicate the order passed by this Court.

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SD/JUDGE

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Sunil Urf Sunil Kumar S/O Basavaraj Hanakanahalli v. Shashikala W/O Mahadev Naik

Case brief

What is this about?

What did the court decide?

Sunil Urf Sunil Kumar S/O Basavaraj Hanakanahalli v. Shashikala W/O Mahadev Naik

Case brief

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What did the court decide?

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