Dismissed

K R Thimme Gowda v. the Manager

Karnataka HC14 Sept 2021MFA/3723/2013

Case brief

AI extract

What is this about?

Appeal against the dismissal of a compensation claim. The appellant challenged the finding that the accident was caused by a falling sign board during road widening, not by a JCB vehicle. The court upheld the lower tribunal's finding that evidence was insufficient to prove vehicle involvement, dismissing the appeal.

What did the court decide?

The appeal is dismissed, affirming the dismissal of the compensation claim by the Motor Accident Claims Tribunal.

K R Thimme Gowda Vs the Manager — Civil Procedure and Limitation | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 14^TH DAY OF SEPTEMBER, 2021

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BEFORE

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THE HON'BLE MR. JUSTICE H.P. SANDESH

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M.F.A.NO.3723/2013 (MV)

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BETWEEN:

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K.R.THIMME GOWDA S/O K.R.RENUKAPPA AGED ABOUT 37 YEARS R/AT D.NO.114, 7^TH CROSS, AVMR BUILDING CHOKKASANDRA T.DASARAHALLI BENGALURU-560 057.

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… APPELLANT

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[BY SRI K.RANJAN KUMAR, ADVOCATE (THROUGH VC)]

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AND:

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THE MANAGER

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M/S. EAST COAST COSTRUCTIONS AND INDUSTRIES LTD., BHUKARIA BUILDING, NO.4 MOORES ROAD CHENNAI-600 006.

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THE MANAGER

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THE ORIENTAL INSURANCE CO. LTD., D.NO.8, NO.89 SHREE PANKAJ COMPLEX PERAMBUR BARRACKS ROAD

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PURASAWALKKAM, CHENNAI TAMIL NADU-600 007.

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… RESPONDENTS

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[BY SRI N.S.NARASIMHA SWAMY, ADVOCATE FOR M/S. SWAMY & SINGH FOR R1;

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SRI S.V.HEGDE MULKHAND, ADVOCATE FOR R2 (THROUGH VC)]

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 03.12.2012 PASSED IN MVC.NO.245/2011 ON THE FILE OF THE IV ADDITIONAL JUDGE, COURT OF SMALL CAUSES, MEMBER, MACT, BENGALURU, DISMISSING THE CLAIM PETITION FOR COMPENSATION.

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

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J U D G M E N T

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This appeal is filed challenging the judgment and award of dismissal of the claim petition filed in M.V.C.No.245/2011 dated 03.12.2012 on the file of the Motor Accident Claims Tribunal at Bengaluru (S.C.C.H.No.6).

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The factual matrix of the case is that the injured claimant in his petition has contended that on 22.06.2010 at about 5.30 p.m., the work was going on for widening the road and ECCI Company was removing the soil using the vehicle

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bearing No.KA-01-MB-7540 and due to the negligence of the

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driver of the said vehicle, due to the removal of the mud under the sign board, the sign board fell on the head of the petitioner resulting in the grievous head injury. Later, he was shifted to Nimhans Hospital with the assistance of the public in 108 ambulance and later, he was shifted to Abhaya Hospital and there, he was treated as an inpatient on 22.06.2010 and he was discharged on 23.06.2010. Then, he was shifted to Victoria Hospital on 23.06.2010 and there, he was treated as an inpatient from 23.06.2010 to 29.06.2010. Later, he was shifted to Dental Ward on 29.06.2010 and he was discharged on 14.07.2010. Thereafter, he was treated in Minto Hospital and Government Dental College, Bengaluru while he was inpatient at Victoria Hospital. Later, as per the advice of the Doctor, he was treated at Nazeema Clinic, Research Centre for audiology and speech language pathology and on 02.11.2010, he was treated at Nayak’s Hearing Care Clinic Pvt. Ltd. It is the claim of the claimant that he has sustained grievous injuries on account of the accident and prior to the accident, he was working as Godown Incharge with Ayush Associates and he was earning

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Rs.8,000/- per month. Due to the injuries sustained in the accident, he has suffered permanent disability.

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In pursuance of the claim petition, notice was issued

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to the respondent Nos.1 and 2. Respondent No.1 failed to appear before the Court. Respondent No.2-Insurance Company appeared and filed the written statement and admitted the issuance of policy in respect of JCB bearing No.KA-01-MB-7540. But, claims that the said vehicle has not involved in the accident. It is the contention of the Insurance Company that the insured vehicle neither hit the petitioner nor dashed/touched by the offending vehicle and the accident was due to the negligence on the part of the injured himself. The petitioner, by colluding with

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the respondent No.1 and the Police, falsely implicated the vehicle for the purpose of claiming compensation and proceeded to lodge the complaint after lapse of 2 days and charge sheet was submitted after lapse of 6 months.

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The claimant, in order to substantiate his contention,

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examined himself as P.W.1 and also examined two witnesses as P.Ws.2 and 3 and got marked the documents Exs.P1 to P16. On

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the other hand, the respondent No.2 examined the official of the Insurance Company as R.W.1 and got marked the document as Ex.R1.

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The Tribunal, after considering both oral and documentary evidence placed on record, while answering issue No.1, in detail discussed with regard to the involvement of the JCB vehicle in the accident and comes to the conclusion that the vehicle was not involved in the accident and also taken note of all the documents placed before the Court, including the MLC Register and also Ex.R1. Having considered both oral and documentary evidence placed on record, dismissed the claim petition in coming to the conclusion that the accident has not been proved involving JCB bearing No.KA-01-MB-7540. Hence, the present appeal is filed by the claimant before this Court.

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The main contention of the learned counsel for the appellant in this appeal is that the Tribunal has wrongly come to a conclusion that the appellant was injured due to the fall of the sign board and not because of any vehicle. The Tribunal, erroneously interpreted the documents such as complaint, spot

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mahazar, statement of complainant and other relied documents observing that, nowhere in these documents, the vehicle number is mentioned and therefore, it cannot be said that the accident has occurred due to the involvement of the vehicle JCB. The Tribunal also erroneously comes to the conclusion that the complaint was lodged after 2 days of the accident and even in the complaint, there is no mentioning of the vehicle number involved in the alleged accident. It is contended that the Tribunal has not appreciated the evidence of the parties in proper perspective. The Tribunal has overlooked the evidence of the eye witnesses to the incident by name James and Vijay. Both of them have stated that they have seen the occurrence of the accident and falling of the sign board on the claimant. Hence, it requires interference of this Court.

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Per contra, learned counsel appearing for the respondent-Insurance Company would vehemently contend that, P.W.1 in the cross-examination also admitted with regard to the fact that JCB bearing No.KA-01-MB-7540 has not directly touched him or dashed to him and also he does not know the

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approximate distance between the vehicle and the place where he was waiting for the city bus. He also admits that the complainant Pradeep is his cousin and that he is working as Police Inspector in Subramanyanagar Police Station. He further admits that, in the complaint, the vehicle number is not mentioned. The Tribunal has considered all these admissions elicited from the mouth of P.W.1 and has given a definite finding that the vehicle has not involved in the accident. Hence, there are no grounds to interfere with the findings of the Tribunal.

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Having heard the learned counsel for the appellant

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and also learned counsel for the respondent-Insurance Company, the point that would arise for consideration of this Court are:

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(i) Whether the Tribunal has committed an error in answering issue No.1 as ‘negative’ and it requires interference of this Court?

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Having heard the learned counsel for the appellant

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and also learned counsel appearing for the respondent-Insurance Company and also on perusal of the records, it is not in dispute

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that the accident has occurred on 22.06.2010 at about 5.30 p.m. On perusal of the document Ex.P2-complaint, it is seen that the same was given after two days of the incident by one Pradeep, who is none other than the cousin of the injured and also it is an admitted fact that he is a Police Inspector. In the complaint, nowhere the vehicle number i.e., JCB is mentioned and also there is no mention about the fact that the said JCB was working at the spot. Only a statement is made in the complaint that when he was at the accident spot, road widening work was going on and ECCI Company got removed the mud but, they have not taken any safety measures to protect the sign board at the spot.

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Having perused the complaint, only an allegation is

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made against the ECCI Company that they were negligent in not taking any safety measures. But, the Police, after recording the statement of the injured after two months, have brought the vehicle JCB bearing No. KA-01-MB-7540 into picture. On perusal of Ex.P6-Wound Certificate of Abhay Hospital where the claimant took the treatment on the date of the accident itself is clear that accident is on account of fall of metro rail barrage while standing

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near the bus stop. The injured was taken to the Hospital at 10.15 p.m. The complaint discloses that, immediately after the accident, the injured was taken to Nimhans Hospital and thereafter, he was taken to Victoria Hospital. In all the hospitals, the very same history is given. In order to connect the involvement of the vehicle JCB, no material is placed before the Court, except filing of charge-sheet against the driver of the JCB and the same is nothing but an after thought.

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According to the claimant, the accident has taken place near the bus stop and public was also there at the spot and no public, who were at the spot were examined to establish the fact that the vehicle JCB was working at the spot. In order to substantiate the fact that work was going on also, no material is placed before the Court. On perusal of the complaint-Ex.P2, it is seen that only an allegation is made against the ECCI Company that they have not taken any safety measures while undertaking the road widening work. The respondent-Insurance Company has taken a specific defence in the written statement that vehicle has not involved in the accident.

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Having considered the evidence of P.W.1 and his

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admissions, the very grounds urged in the appeal not supports the case of the claimant. Even the claimant is not in a position to explain at what distance the vehicle allegedly involved in the accident was there at the place of the accident where he was waiting for the city bus. He also categorically admits that JCB has not directly touched him or dashed against him. It is also not his evidence that while undertaking the road widening work with the use of JCB, an accident has occurred. He also categorically admits that, in the complaint, vehicle number is not mentioned. Having perused the complaint at Ex.P2, it is seen that the same is lodged after two days of the incident. I have already pointed out that, in Ex.P2-complaint, only an allegation is made against the ECCI Company and nothing is stated about the road widening work undertaken by the ECCI Company with the use of vehicle JCB. These aspects have already been considered by the Tribunal while appreciating the evidence available on record. The evidence of P.W.1 goes against his own pleading in the claim petition and the Tribunal, in paragraph Nos.8 to 11 has discussed in detail and rightly comes to the

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conclusion that the claimant has sustained injury on account of fall of metro banner board and comes to the definite conclusion that the vehicle has not involved in the accident and the same is an after thought. The Tribunal has also taken note of the MLC Register placed before the Court through P.W.3 which is marked as Ex.P16(a), wherein the petitioner was hospitalized with the history of fall of an advertisement banner board on his head when he was standing in the bus stop and medical records placed before the Court reveals that the petitioner was hospitalized with the history of fall of a banner board over his head while he was standing at the bus stop. In order to connect the involvement of the vehicle JCB in the accident, no material is placed before the Tribunal.

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Though the learned counsel for the claimant would vehemently contend that eye witness has been examined before the Criminal Court and his evidence supports the case, the same cannot be relied upon since, the same is not placed before the Court and also eye-witnesses are not examined before the Tribunal. The claimant ought to have examined the eye

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witnesses before the Tribunal as contended and they have not been examined. No doubt, the injured is an eye witness to the incident, his own evidence takes away his case since, he has given admissions with regard to the non-involvement of the vehicle JCB in the accident. Even, the claimant is not in a position to state at what distance, the JCB vehicle was there when he was standing near the bus stop. Therefore, I do not find any error committed by the Tribunal in coming to the conclusion that the claimant has not proved the very involvement of the vehicle JCB in the accident. Hence, I do not find any merit in the appeal to reverse the findings of the Tribunal in answering issue No.1 as affirmative.

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14. In view of the discussions made above, I pass the

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following:

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ORDER

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(i) The appeal is dismissed.

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Sd/JUDGE

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K R Thimme Gowda v. the Manager

Case brief

What is this about?

What did the court decide?

K R Thimme Gowda v. the Manager

Case brief

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