Allowed

Shri Vimal K S S/O Sri Sugantha Kumar L R v. the Bracnh Manager

Karnataka HC13 Apr 2022MFA/2610/2012

Case brief

AI extract

What is this about?

An appeal against the Motor Accident Claims Tribunal's dismissal of a compensation claim due to unsubstantiated allegations of rash and negligence. The Court held that the Tribunal erred in dismissing the claim based on conjectures and remanded the matter to determine compensation after finding negligence proved.

What did the court decide?

The judgment and award dismissing the claim is set aside. The matter is remanded to the Motor Accident Claims Tribunal to determine compensation.

Shri Vimal K S S/O Sri Sugantha Kumar L R Vs the… — Motor Accident Claims | Karnataka HC (2022)

¶1

¶2

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶3

DATED THIS THE 13^TH DAY OF APRIL, 2022

¶4

BEFORE

¶5

THE HON'BLE Mr. JUSTICE HANCHATE SANJEEVKUMAR

¶6

M.F.A.No.2610/2012 (MV)

¶7

BETWEEN :

¶8

SHRI VIMAL K.S., S/O SRI SUGANTHA KUMAR L.R., AGED ABOUT 23 YEARS, R/AT C/O M/S A C CARGO MANAGEMENT PVT. LTD., (CARGO GROUPS) BYRAPPA COMPOUND, NEAR BYRAVESHWARA WEIGH BRIDGE MADANAYAKANAHALLI, BANGALORE-TUMUR ROAD, BANGALORE-562 127.

¶9

...APPELLANT

¶10

(BY SMT. SHREE VIDYA, ADV., FOR SRI T.N.VISWANATH, ADV.,)

¶11

AND

¶12

1 . THE BRANCH MANAGER M/S BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD., GROUND FLOOR, NO.31 TBR TOWERS, 1^ST CROSS, NEW MISSION ROAD, ADJACENT TO JAIN COLLEGE, BANGALORE STOCK EXCHANGE, BANGALORE-560 002.

¶13

2 . SRI NELSON PAVUMY MANAGING DIRECTOR,

¶14

¶15

M/S A.C.CARGO MANAGEMENT PVT. LTD., (CARGO GROUPS) BYRAPPA COMPOUND, NEAR BYRAVESHWARA WEIGH BRIDGE, MADANAYAKANAHALLI, BANGALORE-TUMKUR ROAD, BANGALORE-562 127.

¶16

…RESPONDENTS

¶17

(BY SMT. H.R.RENUKA, ADV., FOR R1 APPEARING THRUOGH VC, R2 SERVED)

¶18

THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:14.6.2011 PASSED IN MVC NO.6736/2008 ON THE FILE OF THE MEMBER, MACT, IV ADDL. JUDGE, COURT OF SMALL CAUSES, BANGALORE, DISMISSING THE CLAIM PETITION FOR COMPENSATION.

¶19

THIS MFA HAVING BEEN HEARD AND RESERVED FOR JUDGMENT, COMING ON FOR “PRONOUNCEMENT OF JUDGMENT” THIS DAY, THE COURT DELIVERED THE FOLLOWING:

¶20

JUDGMENT

¶21

The present appeal is filed by the appellant/claimant

¶22

challenging the judgment and award dated 14.06.2011 in MVC.No.6736/2008 passed by the Motor Accident Claims Tribunal, Bengaluru.

¶23

2. Brief facts of the case are as under:

¶24

On 29.05.2008 at about 5.00 pm., after alighting

¶25

from the Eicher HGV vehicle bearing No.KA-21-A-1083 the

¶26

¶27

appellant/claimant who was working as a cleaner-cumloader/unloader, was giving signal to the driver of the said vehicle to reverse the same near the Eicher showroom, situating at Cottomnallur Cross, Bangalore-Kolar Road. But the driver recklessly and negligently in a high speed took the vehicle in a reverse direction, as a result, the appellant/claimant was crushed between the vehicle and electricity pole/transformer and suffered burnt injuries all over the body. Immediately, he was shifted to D.G. Hospital, Bangalore, where he was treated as an inpatient from 29.05.2008 to 15.07.2008. The claim petition was filed by the appellant/claimant under Section 166 of MV Act before the Tribunal claiming compensation of Rs.12,00,000/-. The said petition was dismissed by the Tribunal. Being aggrieved by the same, the present appeal is preferred before this Court.

¶28

Learned counsel appearing for the appellant/claimant submitted that dismissal of the claim petition by the Tribunal is on erroneous reasons and without properly appreciating the evidence on record. The

¶29

¶30

appellant had sustained injuries in a motor vehicle accident as he was giving signal to the driver of HGV truck bearing Reg.No.KA-21-A-1083 and the driver of the truck had recklessly and negligently driven the truck. Therefore, the appellant was struck between the electric pole/transformer and the truck and sustained burnt injuries. Therefore, in this regard, the accident has occurred, but without appreciating this, only on hypothetical basis and on mere surmises and conjectures, the Tribunal imagining something else, that the accident has not happened, has wrongly dismissed the claim petition. Therefore, submitted to re-appreciate the evidence on record by holding that the injuries sustained by the appellant are due to the motor vehicle accident as HGV truck was involved.

¶31

On the other hand, learned counsel for respondent No.1-Insurance Company submitted that HGV truck bearing Reg.No.KA-21-A-1083 was not involved in the accident and the Tribunal while giving reasons and while answering issue No.1 has elaborately considered the evidence on record, both oral and documentary, and has

¶32

¶33

rightly come to the conclusion that the manner of accident as stated by the appellant is a doubtful one and involvement of HGV truck bearing Reg.No.KA-21-A-1083 is not proved. Further submitted that the appellant might have sustained burnt injuries for various other reasons while he was traveling on the foot-board of the bus. Therefore, the Tribunal has rightly appreciated the evidence on record and correctly came to the conclusion that the accident has not occurred as it is stated by the appellant and the truck was not involved. Therefore, the Tribunal has dismissed the claim petition, which needs no interference. Therefore, prays to dismiss the appeal.

¶34

The Tribunal has dismissed the claim petition on the ground that, even though, the accident was occurred on 29.05.2008, but the complaint was filed on 31.05.2008 that too by not mentioning the eye witnesses. Therefore, disbelieved the complaint. The Tribunal has not appreciated the charge sheet papers by holding that mere filing of charge sheet against the driver of the truck is not sufficient to prove the rash and negligent aspect.

¶35

¶36

Therefore, dismissed the claim petition. Further the Tribunal had observed that upon appreciating the evidence on record, Exs.R.2 to R.8 photographs with negatives that factum of accident is not believable. The appellant being the cleaner-cum-loader/unloader stood exactly behind the vehicle and was giving signals resulting his seizure between the vehicle and the electric pole/transformer. Further the Tribunal had considered the evidence on record i.e., Ex.P.18-Medical Legal Case Register Extract, in which, it was written the vehicle as ‘ bus’, but, thereafter, it was scored out and written as ‘ lorry’ . Therefore, suspected the involvement of lorry as there was correction in the Medical Legal Case Register Extract. Thus, the Tribunal has dismissed the claim petition. The Tribunal had held that mere filing of charge sheet is not sufficient to hold that the driver of HGV truck was driving the same in a rash and negligent manner. Therefore, the Tribunal has dismissed the claim petition.

¶37

It is the case of the appellant that on 29.05.2008 in the evening at about 5.00 pm., the

¶38

¶39

appellant after alighting from Eicher HGV vehicle bearing Reg.No.KA-21-A-1083 who was working as a cleaner-cumloader/unloader was giving signal to the driver of the said truck to reverse the same near Eicher showroom, but the driver of the truck recklessly, negligently and with high speed took the truck in a reverse direction. As a result, the appellant was crushed between the truck and electric pole/transformer and suffered burnt injuries all over the body. Therefore, in this regard, narrated the factum of accident and made allegations that out of use of HGV truck, he sustained injuries and thus, filed the claim petition under Section 166 of MV Act, but the Tribunal has dismissed the claim petition.

¶40

The accident had taken place on 29.05.2008 in the evening at about 5.00 pm. No doubt, it is true that the complaint was lodged on 31.05.2008. Hence, there is a delay of two days in lodging the complaint. Just because, there is a delay in lodging the complaint that cannot be made as a ground to dismiss the claim petition. There may be various reasons in lodging the complaint belatedly. The

¶41

¶42

paramount thing is that, soon after the accident, admitting the injured to the hospital for his survival is necessary rather than lodging the complaint before the police. In the present case, soon after the accident, the appellant was shifted to Srinivasa Hospital, Hosakote and then to D.G. Hospital by his friends. Therefore, just because, the complaint was given on 31.05.2008 by one Nagaraju, even though, he is not an eye witness that cannot be made as a ground to reject the claim petition. In this regard, I place reliance on the judgment of the Hon’ble Supreme Court in the case of Ravi Vs. Badrinarayan and Others reported in AIR 2011 SC 1226, wherein at paragraph Nos.20 and

¶43

21, it is observed as under:

¶44

“ 20. It is well-settled that delay in lodging FIR cannot be a ground to doubt the claimant's case. Knowing the Indian conditions as they are, we cannot expect a common man to first rush to the Police Station immediately after an accident. Human nature and family responsibilities occupy the mind of kith and kin to such an extent that they give more importance to get the victim treated rather than to rush to the Police Station. Under such circumstances, they are not expected to act mechanically with promptitude in lodging the FIR with the Police. Delay in lodging the FIR thus, cannot be the ground to deny justice to the victim. In cases of delay, the courts are required to examine the evidence with a closer scrutiny and in doing so; the contents of the FIR should also be

¶45

¶46

scrutinized more carefully. If court finds that there is no indication of fabrication or it has not been concocted or engineered to implicate innocent persons then, even if there is a delay in lodging the FIR, the claim case cannot be dismissed merely on that ground.

¶47

21. The purpose of lodging the FIR in such type of cases is primarily to intimate the police to initiate investigation of criminal offences. Lodging of FIR certainly proves factum of accident so that the victim is able to lodge a case for compensation but delay in doing so cannot be the main ground for rejecting the claim petition. In other words, although lodging of FIR is vital in deciding motor accident claim cases, delay in lodging the same should not be treated as fatal for such proceedings, if claimant has been able to demonstrate satisfactory and cogent reasons for it. There could be variety of reasons in genuine cases for delayed lodgment of FIR. Unless kith and kin of the victim are able to regain a certain level of tranquility of mind and are composed to lodge it, even if, there is delay, the same deserves to be condoned. In such circumstances, the authenticity of the FIR assumes much more significance than delay in lodging thereof supported by cogent reasons.”

¶48

8. Therefore, just because, the complainant is not

¶49

an eye witness and the complaint is given two days after the accident, that cannot be made as a ground to dismiss the claim petition. The Tribunal has overlooked the charge sheet materials and came to the conclusion that HGV truck was not involved in the accident. The Tribunal had observed that, if the appellant had sustained burnt injuries

¶50

¶51

as he was crushed between the truck and electric pole/transformer, then the driver of the truck might have sustained burnt injuries and also the truck might have got damage. This observation by the Tribunal is purely on hypothetical basis and on mere surmises and conjectures. If the accident happens no one should expect that the accident should happen in a particular manner only. If the driver of the truck had not sustained burnt injuries and if the truck has not got damage that cannot be made as a ground to reject the claim of the appellant as he had sustained burnt injuries due to the accident. In this regard, the appellant had produced the medical documents, but the observations of the Tribunal is on mere surmises and conjectures. Ex.P.18 is the Medical Legal Case Register Extract of D.G. Hospital, in which, it is stated that the appellant was examined medically on 29.05.2008 at 10.45 pm., and the history had mentioned that the appellant sustained accidental burnt injuries when he was standing on the foot-board of the lorry touched to the wire at around 5.00 pm on 29.05.2008. The Tribunal had observed that in Ex.P.18-MLC Register Extract the vehicle is

¶52

¶53

mentioned as ‘ bus’ and later it was scored out and the word ‘ lorry’ was mentioned. For this only, the Tribunal had suspected the involvement of HGV truck, but upon perusing the charge sheet materials, since the investigation is conducted as per the law under the code of criminal procedure and investigation by the police officer came to the conclusion that the appellant had sustained burnt injuries due to the use of HGV truck. Therefore, just because, there is change in the name of vehicle in MLC Register Extract that cannot be made as a ground to reject the claim petition of the appellant, but the fact that the appellant had sustained injuries on 29.05.2008 at about 5.00 pm is not ruled out. The Tribunal had suspected that since in Ex.P.18-MLC Register Extract, the word ‘ bus’ is used. Therefore, the appellant has sustained injuries due to the use of bus cannot be accepted. Further the Tribunal had relied on Exs.R.2 to R.8 and observed that it was not possible for causing the accident as narrated by the appellant, since the electric pole shown in the photographs reveal that they are very much abutting to the compound wall of the show room. This observation by the Tribunal is

¶54

¶55

also on mere surmises and conjectures as discussed above. If the accident happened, that is the fact and no one can expect that the accident should happen in a particular manner only.

¶56

The accident speaks itself on the principles of res-ipsa-loquitor that means the factum of accident must

¶57

be seen as itself as there is no scope for making any hypothecation or imagination. Initially, the appellant was admitted to Srinivasa Hospital soon after the accident and on the very same day at around 10.00 p.m., the appellant was admitted to D.G. Hospital and he was examined at 10.45 p.m., and the history of the accident is mentioned as the appellant had sustained vehicle burnt injuries on 29.05.2008 at about 5.00 p.m. Just because, the doctor had mentioned the vehicle as ‘ bus’ and later it was scored out and written as ‘ lorry’ that cannot be doubted. Even the photographs - Exs.R.2 to R.8 shows the truck showroom along with electric pole/transformer. Therefore, the appellant has proved the factum of accident as he has narrated in the claim petition by leading cogent evidence

¶58

¶59

both oral and documentary, but the Tribunal only on hypothetical basis and on mere surmises and conjectures had dismissed the claim petition. Therefore, observations and reasons given by the Tribunal are not correct as they are perverse. Therefore, the judgment and award passed by the Tribunal is liable to be set aside. Hence, the appeal deserves to be allowed.

¶60

However, the case is remanded to the Tribunal for determining compensation as the Tribunal is at the first instance to determine the compensation without going into the aspect of rash and negligence. Issue No.1 framed by the Tribunal regarding rash and negligent aspect is answered in favour of the appellant as the Eicher HGV vehicle bearing Reg.No.KA-21-A-1083 caused the accident by its driver by driving the same in reckless manner and negligently. Therefore, the task of the Tribunal is only to determine the compensation on various heads and for this purpose only, the appeal is remanded to the Tribunal. Hence, I proceed to pass the following

¶61

¶62

ORDER

¶63

Appeal is allowed .

¶64

The judgment and award dated 14.06.2011 in MVC.No.6736/2008 passed by the Motor Accident Claims Tribunal, Bengaluru, is hereby set aside. The matter is remanded to the Tribunal for determining compensation as per law without going into the aspect of rash and negligence as discussed above. The task of the Tribunal is only to determine the compensation.

¶65

No order as to costs.

¶66

Sd/JUDGE

¶67

Shri Vimal K S S/O Sri Sugantha Kumar L R v. the Bracnh Manager

Case brief

What is this about?

What did the court decide?

Shri Vimal K S S/O Sri Sugantha Kumar L R v. the Bracnh Manager

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Shivappa S/O Late Hanumappa Vs H M Shiva Prasad

Branch Manager Vs Hemachandra Gowda S/O Late Narayana Gowda

Sri Praneyata Sharma Vs the Manager

The United India Insurance Company Limited Vs Renukamma

The Branch Manager Vs N Puttaraju

K Parameshwarappa Vs M/S Katariya Transport Services