Shivalingappa S/O Ningappa Bannur Vs Mallappa S/O Goudappa Kamat

KUM. SHIVALINGAPPA S/O NINGAPPA BANNUR, AGE: 16 YEARS, OCC: AGRICULTURE, R/BY N/G FATHER NINGAPPA, S/O DUNDAPPA BANNUR, AGE: 52 YEARS, OCC: PAINTER, R/O.MAMADAPUR, TQ: GOKAK

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APPELLANT

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(BY SRI. SANJAY S KATAGERI, ADVOCATE)

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AND:

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SHRI. MALLAPPA S/O GOUDAPPA KAMAT, AGE: 36 YEARS, OCC: AGRICULTURE AND MILK VENDING, R/O.MAMADAPUR, TQ: GOKAK, (OWNER OF MOTOR CYCLE NO.KA-49/K-703).

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Digitally signed by VISHAL NINGAPPA PATTIHAL Location: High Court of Karnataka, Dharwad Bench

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THE DIVISIONAL MANAGER, THE ICICI LAMBARD GENERAL INSURANCE CO.LTD., ICICI BANK TOWER, BANDRA KURLA COMPLEX, BANDRA EAST-MUMBAI-400034.

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RESPONDENTS

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(BY SRI. S.K. KAYAKAMATH, ADVOCATE FOR R2, NOTICE TO R1 IS SERVED)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S 173(1) OF M.V. ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED 30.06.2012 PASSED IN M.V.C. NO. 1046/2011 ON THE FILE OF THE I-ADDL. SENIOR CIVIL JUDGE AND MEMBER, ADDL. MACT, GOKAK, DISMISSING THE PETITION FILED U/SEC.166 OF MV ACT, 1988 & ETC.

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THIS MISCELLANEOUS FIRST APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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2 -

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NC: 2025:KHC-D:5919 MFA No. 25238 of 2012

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CORAM: THE HON'BLE MR. JUSTICE UMESH M ADIGA

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE UMESH M ADIGA)

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This appeal is by the claimant challenging the

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judgment and award dated 30.06.2012 by the I Addl. Sr.

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Civil Judge & AMACT, Gokak (for short, the ‘Tribunal’) in M.V.C. No. 1046/2011.

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Parties are referred to as per their ranking before the Tribunal.

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Brief facts of the case are that:

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It is the case of the claimant that on 29.04.2011 claimant was going as a pillion rider in motorcycle bearing Reg. No. KA-49-K-730 on Mamadapur-Betageri road. His cousin was riding the motorcycle. Around 8 AM he met with accident due to rash and negligent riding of the motorcycle at Ramanagar Bridge, as a result of which, he fell down from the motorcycle and sustained cut injury of left index finger at its base and other abrasion injuries. The claimant was holding a sickle in his hand while going

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as a pillion rider. When he fell down, the said sickle came

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in contact with left index finger due to which it was cut. He was shifted to Umrani hospital wherein he was admitted as inpatient and spent Rs.25,000/- towards medical treatment. Claimant further stated that he was aged 15 years at the time of accident, was an agriculturist

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and earning Rs.5,000/- per month. Due to injuries sustained in the accident, he has been suffering from permanent disability. With these reasons he prayed to award compensation of Rs.5,00,000/- with interest at 18% p.a.

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Respondent No.2-insurer in its written statement denied contents of the claim petition and further stated that accident had not taken place as stated in the claim petition but in collision with the owner and rider of the motorcycle and the Police, the claimant filed a false case. With these reasons prayed to dismiss the claim petition.

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The Tribunal on the basis of pleadings of the parties framed necessary issues. The claimant to prove his case

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examined two witnesses as PW1 and 2 and marked 21 documents as Exs.P.1 to P.21. The respondent marked one document as per Ex.R.1. The Tribunal after hearing both parties and appreciating the pleadings and evidence on record, held that occurrence of the accident is doubtful and claimant failed to prove issue No.1. The Tribunal has also considered contentions of the appellant in respect of issue No.2 and assessed the compensation at Rs.53,223/-. Since issue No.1 was answered in the negative ultimately the claim petition was dismissed. Being aggrieved by the same the claimant preferred this appeal.

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Heard arguments of learned Advocates for both parties.

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The learned counsel for the appellant submitted in line with the ground of appeal and further contended that the Tribunal has not at all considered the evidence led by the claimant. There is no much delay in lodging the complaint. On the evening of the same day he lodged the complaint and it was investigated and chargesheet was

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filed. It was not challenged by the owner or insurer of the offending vehicle. On the very same day he visited the hospital. In the wound certificate the facts of the accident are narrated. In the cross examination nothing was brought out to disbelieve the evidence of PWs.1 and 2. The Tribunal considered the evidence of PW1 on par with proof of a case in a criminal trial. Though there is no such contention, the Tribunal itself has held point No.1 negative only on the basis of damage caused to the vehicle which is not tenable. Therefore he prayed to allow the claim petition.

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The learned counsel for the insurer vehemently contends that there is no consistency in the evidence of PW1, damages stated by PW1 to the vehicle and the damages found in M.V.I Report. If a person fall on left side then there would be damage to the left side of the motorcycle but in this case no such damage is found except few scratch marks. It indicates that said vehicle was falsely implicated in the case. Claimant must have

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sustained injury in some other incident and to claim compensation, created the false story, in collision with the owner and Police. The Tribunal has rightly considered the same and dismissed the claim petition and it does not call for interference by this Court.

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The claimant is a minor. Therefore he has examined his guardian as PW1. PW1 narrated facts of the case. He is not an eyewitness to the accident. He has stated that after his son came home in the morning he was informed about the accident. In the cross examination much was asked regarding damage to the vehicle. He may not be competent witness to say the said fact. Either rider of the motorcycle or owner of the vehicle, are competent persons

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to say about the damage caused in the accident in question, to the motorcycle. Therefore much importance cannot be given to the said damage to the motorcycle as considered by the Tribunal.

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The claimant sustained injuries in the accident and on the very same day, of course during the evening, he

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lodged the complaint to the nearest police station. In the evening he went to Umrani hospital at Gokak for treatment and got admitted in the hospital. Ex.P.8 disability certificate shows that claimant went to the said hospital on 29.04.2011 and discharged on 30.04.2011. History of the injury is also mentioned in the said certificate-Ex.P.5 along with nature of injury, i.e., complete amputation of left index finger at base margins irregular. The fact of the accident narrated in Ex.P.1 reveals that such injury could be possible when the claimant was carrying sickle along with him. Apart from that, rider of the motorcycle pleaded guilty before the jurisdictional JMFC. Copy of the order sheet is placed on record as per Ex.P.7. All these materials prima facie show that claimant had sustained injury in an vehicular accident.

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As submitted by the learned counsel for the appellant, the Tribunal has given much importance in the impugned judgment regarding the damage to the vehicle.

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Standard of proof to prove the accident in a criminal case as well as in the motor vehicle compensation case is totally different. In the criminal case, it is to be proved beyond reasonable doubt and in the motor vehicle compensation case, it would suffice to make out a prima facie case and on the basis of preponderance of probability the fact is to be considered. There are sufficient materials to believe that claimant had sustained injury in an vehicular accident. Therefore the findings of the Tribunal that claimant sustained injuries not in a vehicular accident, is not tenable and needs interference by this Court.

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The Tribunal has assessed age of the claimant as 13 years on the basis of materials available on record. The claimant was stated to be studying in 8^th standard as per Ex.P.5. Therefore, he was a minor at the time of accident. PW2 has assessed disability of the claimant as 15%. Even if we consider the provisions of Workmen’s Compensation Act, for loss of index finger the percentage of disability could be taken as ‘7’. In the facts and circumstances of

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the case the compensation is to be awarded on the basis of the law laid down by the Hon’ble Supreme Court in the case of Master Mallikarjun Vs. Divisional Manager, National Insurance Company Limited & Anr. reported in 2013 AIR SCW 6452 that would be awarded to the victim is Rs.1,00,000/- excluding the medical expenses and in this case the claimants have produced medical bills totaling Rs.9,473/rounded of to Rs.10,000/-. Considering the same, Rs.1,10,000/- is awarded to the claimant under all the heads.

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For the aforesaid discussion, this Court pass the following order.

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ORDER

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(1) Appeal is allowed in part;

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(2) Judgment and award dated 30.06.2012 passed by the I Addl. Sr. Civil Judge & AMACT, Gokak in M.V.C. No. 1046/2011 is set aside;

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(3) The claim petition filed by the claimant is allowed in part. Claimant is entitled for total compensation of Rs.1,10,000/- with interest at 6% p.a. from the date of petition till its realization.

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(4) The respondent No.2 shall deposit the said compensation amount within a period of eight weeks from the date of passing of the award.

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Since the claimant is a minor, entire amount of compensation shall be invested in fixed deposit till he attains majority. On attaining majority the entire amount of compensation shall be released in favour of the claimant on due identification.

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Send back the trial court records along with a copy of the judgment.

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Sd/(UMESH M ADIGA) JUDGE

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BVV List No.: 1 Sl No.: 4

Shivalingappa S/O Ningappa Bannur v. Mallappa S/O Goudappa Kamat

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Shivalingappa S/O Ningappa Bannur v. Mallappa S/O Goudappa Kamat

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