Allowed

Bhandamma v. Kalleshappa

Karnataka HC7 Jul 2023MFA/2261/2017

Case brief

AI extract

What is this about?

In a miscellaneous first appeal, the High Court of Karnataka set aside the Motor Accident Claims Tribunal's dismissal of a compensation claim. The court held that respondents admitted the tractor moved without a driver, attributing injuries to this event. The High Court awarded Rs. 2,63,757/- for pain, suffering, loss of amenities, and medical expenses, dismissing the appeal against the insurance

What did the court decide?

Compensation of Rs. 2,63,757/- awarded with 6% p.a. interest; impugned judgment set aside; respondent Nos. 1 and 2 jointly and severally liable; insurance petition dismissed.

Bhandamma Vs Kalleshappa — Motor Accident Claims | Karnataka HC (2023)

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NC: 2023:KHC:23594 MFA No. 2261 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7^TH DAY OF JULY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE C M JOSHI

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MISCELLANEOUS FIRST APPEAL NO. 2261 OF 2017 (MV-I)

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BETWEEN:

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BHANDAMMA

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W/O LATE ESHWARAPPA AGED ABOUT 78 YEARS, HOUSE WIFE, R/O AGARABANNIHATTI VILLAGE CHANNAGIRI TALUK-577 213 DAVANAGERE DISTRICT

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…APPELLANT

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(BY SRI SHASHIDHARA R., ADVOCATE)

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AND:

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KALLESHAPPA

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Digitally signed by T S NAGARATHNA Location: High Court of Karnataka

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S/O ONKARAPPA AGED ABOUT 43 YEARS, DRIVER OF TRACTOR BEARING REG NO.KA-17/TC-0023, R/O AGARABANNIHATTI VILLAGE, CHANNAGIRI TALUK -577213, DAVANAGERE DISTRICT.

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MAHESHWARAPPA S/O BASAPPA MAJOR, OWNER OF TRACTOR BEARING NO.KA-17/TC-0023, R/O DODDAMALLAPURA VILLAGE, SANTHEBENNUR HOBLI, CHANANGIRI TALUK 577213. DAVANAGERE DISTRICT

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NC: 2023:KHC:23594 MFA No. 2261 of 2017

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THE BRANCH MANAGER BHARATHI AXSA GENERAL INSURANCE COMPANY LTD, 1^ST FLOOR, THE FERNCE ICON, SY NO.28, DODDANAKUNDI, BANGALORE 560 037.

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…RESPONDENTS

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(BY SRI A N KRISHNA SWAMY, ADVOCATE FOR R3; RESPONDENT NOS.1 AND 2 SERVED)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 11.1.2017 PASSED IN MVC NO.566/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE AND J.M.F.C, AMACT, CHANNAGIRI, DISMISSING THE CLAIM PETITION FOR COMPENSATION.

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

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JUDGMENT

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Heard the learned counsel for the appellant and learned counsel for respondent No.3.

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This appeal is directed against the judgment and award in MVC No.566/2014 dated 11.01.2017 by the learned Senior Civil Judge and AMACT at Channagiri, whereby the claim petition filed by the appellant herein came to be dismissed.

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The petitioner/appellant herein contended that on 26.04.2013 when she was going by walk from the bus stand to her house at Kotehall Keri at 7.00 p.m., the respondent No.1 drove the Tractor bearing registration No.K.A.17-T.C.0023 in a rash and negligent manner and dashed against the petitioner from back side and as a result the petitioner had sustained injuries on her right leg, thighs, back etc and she was taken to Channagiri Government Hospital and after first aid, she was admitted to Nanjappa Hospital, Shivamogga. Thereafter she had taken treatment at Kasthuraba Hospital, Manipal. It is stated that she took treatment as inpatient for 40 days at the said Hospital and still she was suffering from the injuries.

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The petitioner has further contended that the Channagiri Police have registered a case in Cr.No.225/2013 against the driver of the Tractor and ultimately the charge sheet was also filed against him. Therefore, she claimed compensation from the respondents who are the driver, owner and insurer of the vehicle.

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On issuance of notice, the respondent Nos.1 to 3 appeared before the Tribunal and respondent Nos.1 and 2 have

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filed objection, totally denying the petition averments. Interalia they have contended that on 26.04.2013 the respondent No.2 had entrusted his Tractor to the respondent No.1 for agricultural work and at 6.00 p.m., one Prashanth who was the driver of the Tractor had parked the said Tractor near the house of the respondent No.1 and left the key in the Tractor itself and went into his house. At that time the daughter of the first respondent aged about 9 years went to the said Tractor in order to take the key, but accidently she turned on the keys, therefore the Tractor moved. The petitioner on the fear that the Tractor may run over her, jumped to the side and sustained injuries due to falling on the road. Therefore, it was contended that the Tractor had not at all dashed against the petitioner.

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It is contended that the first respondent has taken the petitioner to the General Hospital at Channagiri for treatment. It is alleged that after 15 days, the petitioner had lodged the false complaint against the respondent Nos.1 and 2 and therefore, the petition deserves to be dismissed.

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The respondent No.3 - insurance company contended that the first respondent had no valid and effective

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NC: 2023:KHC:23594 MFA No. 2261 of 2017

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driving licence to drive the Tractor and the Tractor was not permanently registered. It is contended that the temporary registration certificate obtained by the respondent No.2 was also expired on 26.03.2013 which was much earlier to the accident. Therefore, it is contended that respondent No.3 is not liable to pay any compensation to the petitioner.

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On the basis of the above pleadings the Tribunal

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framed following issues:

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“i. Whether the petitioner proves that on 26.04.2013 at about 7.00 p.m., near the house of N.K. Jayanna, at Agarbannihatti village, she sustained grievous injuries in a motor vehicle accident due to the rash and negligent act of the driver of the Tractor bearing Reg. No.KA-17/TC-0023 i., respondent No.1?

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ii. Whether the respondent Nos.1 to 3 prove that they are not liable to pay the compensation?

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iii. Whether the petitioner is entitled for compensation? If so, at what rate and from whom?

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iv. What order or award?

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The petitioner was examined as P.W.1 and Exs.P.1 to 154 were marked. The respondents examined three witnesses as R.Ws.1 to 3 and Exs.R.1 to 4 were marked. After hearing arguments of both the sides, the Tribunal answered the issue Nos.1 and 3 in the negative and issue No.2 in the affirmative and proceeded to dismiss the petition.

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Being aggrieved by the dismissal of the petition, the petitioner is before this Court in appeal. The petitioner/appellant contends that the conclusion raised by the Tribunal are not justifiable, since the manner in which the accident had happened is not disputed. The fact that the petitioner had sustained injury is not in dispute. It is contended that the delay in filing the complaint was sufficiently explained by the petitioner and such averment may be found in the complaint itself. It is submitted that after the investigation, Investigation Officer had filed the charge sheet against the driver of the Tractor and therefore, this evidence available on record was not properly appreciated by the Tribunal. Secondly, it is contended that that the written statement of the respondent Nos.1 and 2 admit that they had taken the petitioner to the hospital at Channagiri and according to them,

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the Tractor had moved without a driver while the daughter of the respondent No.1 attempted to take out the keys of the Tractor. It is contended that though the manner in which the accident happened is different, substantially the accident is admitted by the respondent Nos.1 and 2. Therefore, it is contended that the impugned judgment is not sustainable in law.

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On issuance of notice, respondent Nos.1 and 2 have not appeared before this Court despite proper service. The respondent No.3 has appeared through its counsel, the Trial Court Records have been secured and the appeal being admitted.

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The learned counsel for the appellant submits that the evidence of P.W.1 clearly shows that she had sustained the injuries in the accident, but she did not file the complaint as the respondent No.1 and 2 had assured that the petitioner would compensated of her medical expenses and later they back tracked and therefore she was constrained to file the complaint. It is submitted that this aspect is borne out from the investigation records and R.W.2 owner admits in his cross-

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examination that he had taken the petitioner to the hospital. He also contends that the evidence of R.W.1 also show that he had also taken the petitioner to the hospital. Therefore, when there is a categorical admission by R.Ws.1 and 2 who had taken the petitioner to the hospital at Channagiri, the Tribunal could not have come to the conclusion that there was no accident.

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R.W.3 is an official of the Insurance Company and

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he was not an eyewitness to the accident. Therefore, when RWs.1 and 2 admitted that they had accompanied the petitioner to the hospital, it has to be held that there was an accident involving the Tractor. He submits that the contention of RWs.1 and 2 that there was no collision between the Tractor and the petitioner and the admitted facts show that the petitioner being frightened of moving of Tractor without a driver in the driver seat of the Tractor and fell down. The Proximate cause of the injuries sustained by the petitioner was none else than the accidental move of the Tractor owned by the respondent No.2. Therefore, he contends that the finding of the Tribunal is incorrect.

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As noted supra, the respondent Nos.1 and 2 have not appeared before this Court despite service of notice.

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The perusal of the evidence on record discloses that the petitioner though had sustained the injuries in the alleged accident dated 26.04.2013 at about 7.00 p.m., the first medical evidence available on record is of 09.05.2013. There is no medical evidence which is available, which would show that she had taken treatment at Channagiri Hospital. However, the FIR which is produced at Ex.P.1 shows that when the accident had happened on 26.04.2013, the respondent Nos.1 and 2 had taken her to the hospital at Channagiri and thereafter she had taken treatment at Nanjappa Hospital and ultimately the complaint was filed by her on 10.05.2013.

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It is pertinent to note that the complaint which is at Ex.P.2 clearly mentions that respondent Nos.1 and 2 had requested her not to file the complaint since they had purchased the Tractor recently and it was not registered. Even she had filed an affidavit in support of her complaint. The wound certificate which is at Ex.P.3 also shows the date of accident as 26.04.2013.

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In the evidence of P.W.1, she states that initially

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when she went to the hospital at Channagiri, she was given only medicine and thereafter she had gone to the other hospital. In the cross-examination P.W.1 admits that she took treatment in the house for about a week and thereafter she went to the hospital at Shivamogga. P.W.1 is aged about 75 years and she is an illiterate lady.

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It is relevant to note that the respondent Nos.1 and 2 in their written statement as well as in their testimony before the Tribunal stated that when the daughter of the respondent No.1 tried to remove the key, the Tractor moved and the petitioner fell down being frightened about the move of the Tractor. This pleading itself would go to show that the respondent Nos.1 and 2 had admitted that though there was no collision between the vehicle as well as the petitioner, she got frightened since the vehicle moved without driver on the driver seat. It has also come in the evidence that accidentally, the engine of the Tractor started, as the daughter of the respondent No.1 has turned the keys on. Thus, it is evident that the injuries suffered by the petitioner are proximate to an uncalled move of the Tractor which was left unattended by its

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driver. At any rate, the involvement of the Tractor as the cause of the accidental injury is admitted fact. Under these circumstances, the finding of the Tribunal that there was no such accident as contended by the respondents is not sustainable under law.

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A perusal of the impugned judgment shows that the Tribunal mainly considered the hospital record to come to the conclusion that there was no such accident. In para Nos.12, 13 and 14 of the impugned judgment the Tribunal holds that there is a delay in taking treatment by the petitioner and in the hospital she had stated that the accident had occurred about 10 days back and there was no sufficient reason as to why she had not taken treatment for about 10 days after the accident. Under these circumstances it is evident that the Tribunal had overlooked the fact which was admitted by respondent Nos.1 and 2.

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So far as the liability is concerned, R.Ws.1 and 2 have admitted that the driver of the vehicle was not having a valid licence. Though they have entered into the witness box, they have not produced the driving licence of the driver who

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had left the Tractor unattended in front of the house of respondent No.1. Therefore, this admission by RWs1 and 2 itself would be sufficient enough to absolve the liability of respondent No.3.

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The above conclusion has taken us to fastening the liability of respondent Nos.1 and 2. On careful perusal of the record it is evident that the petitioner had sustained deep abrasion on the right knee, sutured wound on the right leg, contusion in anterior and posterior thigh, deep abrasion and scab on the right shoulder etc., as can be seen from Ex.P.3. The discharge summary of the hospitals produced at Ex.P.147 to 150 show that the petitioner was initially admitted to Nanjappa Hospital from 06.05.2013 to 09.05.2013, Girishantha Orthocare at Chitradurga from 21.05.2013 to 28.05.2013, Kasturabha Hospital, Manipal from 05.06.2013 to 08.06.2013 and from 21.06.2013 to 20.07.2013. These documents also disclose that though the petitioner had suffered soft tissue injury to the right lower limb, it had developed complications including haematoma and continuous treatment was required. In all these discharge summaries, it was stated that she had met with RTA on 20.05.2013.

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The petitioner has neither examined any medical

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officer nor contended any permanent disability on account of injuries sustained by her. Considering the nature of the injury as may be found in the above documents, it is evident that the wound had developed complications and therefore, it made her to admit to the hospital at four spells. Therefore, it would be just and proper to award a sum of Rs.40,000/- under the head of 'pain and suffering'.

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The petitioner was aged 75 years and therefore, though there cannot be any income that may be attributed to her, the notional income is considered at Rs.8,000/- per month and it can safely be said that she was unable to perform her regular day to day work at least for a period of 3 months. Hence, a sum of Rs.24,000/- is awarded to her under the head of 'loss of income during laid up period'.

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The petitioner being aged 75 years had suffered the injury, which would cause considerable discomfort in her rest of the life. Hence, a sum of Rs.25,000/- is awarded under the head of 'loss of amenities in life'.

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The petitioner has produced the bills, prescriptions

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etc., at Ex.P6 to P145. The bills account for Rs.1,49,757/-. hence, she is entitled for the said sum.

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It is evident that the petitioner has visited Chitradurga and Manipal for her treatment. Hence, a sum of Rs.25,000/- is awarded to her under the head of 'attendant, nourishment and conveyance charges'.

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Thus, the petitioner is entitled for compensation under different heads as below:

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PARTCULARS	AMOUNT (IN RS.)
Pain and suffering	40,000/-
Loss of income during laid up period	24,000/-
Loss of amenities in life	25,000/-
Medical Bills and Prescriptions	1,49,757/-
Attendant, Nourishment and conveyance charges	25,000/-
TOTAL	2,63,757/-

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Thus, the petitioner is entitled for a compensation of Rs.2,63,757/- with interest and therefore, the appeal deserves to be allowed. Hence, the following:

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NC: 2023:KHC:23594 MFA No. 2261 of 2017

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ORDER

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(i) The appeal is allowed.

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(ii) The impugned judgment and award passed by

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the Tribunal is set aside. The petitioner is entitled for compensation of a sum of Rs.2,63,757/- along with interest at 6% p.a. from the date of petition till its deposit.

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(iii) The respondent Nos.1 and 2 are jointly and severally liable to pay the compensation to the petitioner within eight weeks from the date of this judgment.

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(iv) The petition as against the respondent No.3 is

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dismissed.

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(v) In the event of deposit of the compensation amount, 50% of the compensation amount be paid to the petitioner and the remaining amount be kept in FD for a period of two years in any nationalized bank of the choice of the petitioner.

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NC: 2023:KHC:23594 MFA No. 2261 of 2017

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(vi) Draw award accordingly.

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Sd/JUDGE

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MR/NR List No.: 1 Sl No.: 102

Bhandamma v. Kalleshappa

Case brief

What is this about?

What did the court decide?

Bhandamma v. Kalleshappa

Case brief

What is this about?

What did the court decide?

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