H C Darshan Prasad Vs Mahadeva

(BY SRI. R.S. RAVI, SENIOR ADVOCATE FOR SRI. AKARSH KUMAR GOWDA, ADVOCATE FOR R1 SRI. M.S. SRIRAM, ADVOCATE FOR R2 SRI. ASHOK N PATIL, ADVOCATE FOR R4 NOTICE TO R3 IS DISPENSED WITH V/O DTD 12.12.2013)

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THIS MFA IS FILED U/S 173(1) OF MV ACT PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 19.7.2011 PASSED IN MVC NO.530/2008 ON THE FILE OF ADDITIONAL SENIOR CIVIL JUDGE & MACT, SRIRANGAPATNA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION AND ETC.

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IN MFA NO. 9806/2012

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BETWEEN:

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MAHADEVA S/O MANCHEGOWDA MAJOR R/AT NO.8, HUYILALU - 2 NAGAVALA POST, ILAWALA HOBLI MYSORE TALUK & DISTRICT (OWNER OF HERO HONDA PASSION SCOOTER BEARING NO.KA-09 EG-9980) … APPELLANT

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(BY SRI. R.S. RAVI, SENIOR ADVOCATE FOR SRI. AKARSH KUMAR GOWDA, ADVOCATE)

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AND:

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SRI H C DARSHAN PRASAD AGED ABOUT 25 YEARS

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S/O H C CHENNAPPA ODEYAR, DAIRY FARMING AND MILK VENDING BUSINESS R/AT HUNJANAKERE VILLAGE ALUGUDU POST SRIRANGAPATNA TALUK MANDYA DISTRICT-571438

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THE NATIONAL INSURANCE CO LTD DIVISIONAL BRANCH RAMASWAMY CIRCLE MYSORE – 570 024

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KANTHARAJU S/O MADEGOWDA MAJOR R/AT NO.19, B K KAVAL HUNSUR TOWN, HUNSUR TALUK MYSORE DISTRICT – 570 024

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THE ORIENTAL INSURANCE CO LTD MYSORE DIVISION MYSORE - 570 024 … RESPONDENTS

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(BY SRI. D. NAGARAJA REDDY, ADVOCATE BY HCLSC FOR R1 SRI M.S. SRIRAM, ADVOCATE FOR R2 SRI. ASHOK N PATIL, ADVOCATE FOR R4 APPEAL AGAINST R3 IS DISMISSED V/O DTD 04.08.2015)

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THIS MFA IS FILED U/S 173(1) OF MV ACT PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 19.7.2011 PASSED IN MVC NO.530/2008 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE, MACT, SRIRANGAPATNA, AWARDING A COMPENSATION OF RS.1,70,000/- WITH INTEREST @ 6% P.A FROM THE DATE OF PETITION TILL DEPOSIT AND ETC.

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THESE APPEALS, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MRS JUSTICE K.S.MUDAGAL and HON'BLE MR JUSTICE C.M. POONACHA

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ORAL JUDGMENT

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(PER: HON'BLE MRS JUSTICE K.S.MUDAGAL)

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These appeals arise out of the award in MVC No.530/2008 passed by the Additional Senior Civil Judge and MACT, Srirangapatna. The appellant in MFA No.9448/2011 was the claimant and respondent Nos.1 to 4 were respondent Nos.1 to 4 in MVC No.530/2008. For the purpose of convenience, the parties are referred to henceforth according to their ranks before the Tribunal.

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The case of the claimant in brief was as follows:

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That on 27.11.2006 at about 10.30 am., he was traveling

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as pillion rider on TVS Victor motor cycle bearing registration No.KA-45-E-6049. One Nagaraju was the rider of the said vehicle. When they were proceeding near Kirangadur Toll Gate, within the jurisdiction of Mandya Traffic Police Station, respondent No.1 riding his Hero Honda Passion motor cycle bearing No.KA-09-EG-9980 in rash and negligent manner hit the claimant’s motor cycle from the hind side. Consequently, both the claimant and the rider of the motor cycle fell down.

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The claimant was initially shifted to Mandya General Hospital. After preliminary treatment, as he had suffered severe head

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injury, he was shifted to NIMHANS, Bengaluru. Thereafter, he took treatment in General Hospital, Mandya and K.R.Hospital, Mysuru. He claimed that due to the injuries suffered by him in the accident, he has suffered permanent physical disability and loss of future earnings. He claimed that at the time of the accident, respondent Nos.1 and 2 were the owner and insurer of motor cycle bearing No.KA-09/EG-9980 and respondent Nos.3 and 4 were the registered owner and insurer of motor cycle bearing No.KA-45-E-6049. He claimed compensation of `26,75,000/from the respondents on different heads contending that he has lost his future earnings and spent huge amount for medical expenses, etc.

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Respondent Nos.1 and 3 did not contest the petition. Respondent Nos.2 and 4 contested the petition denying the occurrence of the accident, actionable negligence on the part of respondent No.1 in riding the motor cycle bearing No.KA-09-EG-9980. They further denied the alleged injuries and disability of the claimant. Respondent No.2 further contended that the rider of motor cycle bearing No.KA-09-EG9980 was not holding valid driving licence, therefore it is not liable to pay the compensation.

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In support of his case, the claimant got examined PWs.1 to 4 and got marked Exs.P1 to P64. The representatives of respondent Nos.2 and 4 were examined as RWs.1 and 2 respectively. On their behalf Exs.R1 to R3 were marked.

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The Tribunal on hearing the parties, by the impugned judgment and award held that it was the claimant who was riding the motor cycle bearing No.KA-09-EG-9980 and respondent No.1 had permitted the claimant to ride the vehicle without driving licence, therefore, the insurer was not liable to pay the compensation and dismissed the claim petition against respondent Nos.2 to 4. The Tribunal held that the claimant himself was responsible for the accident, but still awarded compensation of `1,70,000/- as follows:

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Sl. No	Particulars	Amount in (`)
1	Pain and suffering	1,00,000.00
2	Medical expenses	25,000.00
3	Loss of earning during laid up period	25,000.00
4	Diet and attendant charges	20,000.00
	Total	1,70,000.00

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Respondent No.1 was ordered to pay the said

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compensation.

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Challenging the adequacy of the compensation and

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exclusion of respondent No.2, the claimant has preferred MFA No.9448/2011.

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Challenging the award against him, respondent No.1 i.e., the owner of motor cycle bearing No.KA-09-EG-9980 has preferred MFA No.9806/2012.

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As Sri Srikanth M, advocate on record for the claimant failed to appear, Sri D.Nagaraj Reddy, learned counsel for High Court Legal Services Committee was appointed to assist the Court on behalf of the claimant. He submits that though the FIR was registered against the claimant himself, on investigation the charge sheet was filed against respondent No.1, alleging that he rode the motor cycle bearing No.KA-09EG-9980 in rash and negligent manner and caused the accident. In the absence of any other evidence, the Tribunal was in error in holding that claimant himself was riding the said motor cycle. He submits that the Tribunal was in error in disbelieving the evidence of PW.3/eye-witness. The Tribunal ought to have considered the evidence of PW.4/doctor regarding disability suffered by the claimant and awarded appropriate compensation. He seeks for enhancement of the

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compensation and reversal of the finding regarding exoneration of respondent No.2/insurer and seeks an award against respondent No.2.

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Sri R.S.Ravi, learned Senior Advocate appearing for advocate on record for respondent No.1/the owner of the motor cycle bearing No.KA-09-EG-9980 submits that after thorough investigation, the charge sheet was filed against claimant and respondent No.1. He was holding a valid driving licence. The risk of the vehicle was covered under the policy issued by respondent No.2/National Insurance Co.Ltd. Under the circumstances, the Tribunal should not have dismissed the petition against respondent No.2 and the Tribunal was in error in fastening the liability on respondent No.1.

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Sri M.S.Sriram and Sri Ashok N.Patil, learned counsel for respondent Nos.2 and 4 submit that FIR/Ex.P1, which is the claimant’s own document states that it was the claimant himself who was riding the motor cycle bearing No.KA-09-EG-9980. The records clearly show that subsequently, the claimant and respondent No.1 in collusion with the police and others have manipulated the records to show that the claimant was the pillion rider of TVS Victor motor

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cycle bearing No.KA-45-E-6049 for the purpose of the claim petition and to make wrongful gain. PW.2 was not an eyewitness. The evidence of PWs.1 and 3 regarding respondent No.1 riding the motor scooter bearing No.KA-09-EG-9980 was not creditworthy. The other injured witnesses were not examined by the claimant though they were available. Regarding the same accident, one Siddalingaiah filed claim petition in MVC No.881/2007 claiming that he was pillion rider on TVS Victor motor cycle bearing No.KA-45-E-6049, whereas the claimant also contends that he was the pillion rider and the finding in that regard has attained finality. The material on record clearly shows that the claim petition was filed manipulating the records to make wrongful gain by exploiting the insurer. Therefore, they justify the dismissal of claim petition against respondent Nos.2 to 4.

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On considering the submissions of both sides and examining the material on record, the points that arise for consideration are:

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i. Whether the claimant proved that on 27.11.2006 at about 10.30 am., he was traveling as pillion rider on TVS Victor motor cycle bearing No.KA-45-E-6049 and respondent No.1 rode the motor cycle bearing

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No.KA-09-EG-9980 and hit the vehicle of the claimant caused the accident?

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ii. Whether the compensation awarded by the Tribunal is just one?

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iii. Whether Tribunal was justified in exonerating respondent Nos.2 to 4?

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Analysis

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Reg. Point No.(i) to (iii):

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The claimant contended that on 27.11.2006 at 10.30 am., he was traveling as a pillion rider on TVS Victor motor cycle bearing No.KA-45-E-6049 near Kirangadur Toll Gate and at that time respondent No.1 rode the motor cycle bearing No.KA-09-EG-9980 in a rash and negligent manner, hit the claimant’s vehicle from the hind side and caused the accident. The burden to prove the said fact was on the claimant. To prove that, he relied on the evidence of himself, his father-PW.2, PW.3 - the alleged eye-witness, PW.4 – doctor and Exs.P1 to P5 namely, FIR, spot mahazar, wound certificate, Motor Vehicle Accident report and charge sheet, respectively.

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PW.2 was not the eye-witness to the accident. PW.3 though deposed that he was the eye-witness, in

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claimant’s own document Ex.P5 - charge sheet, PW.3 was not cited as eye-witness. As per the charge sheet, one Siddalingaswamy, Nagaraju and Kempashetty were the other injured in the accident and one Pradeep was the eye-witness. None of them were examined before the Tribunal to prove that respondent No.1 was riding the motor cycle bearing No.KA-09EG-9980. Even respondent No.1 did not enter the witness box to claim or deny that he was riding the motor scooter bearing No.KA-09-EG-9980.

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As per Ex.P1/FIR, which is the claimant’s own document, one Adarshan @ Adi @ Adarsh filed the complaint before the Mandya Traffic Police Station regarding the accident. In the said complaint, he says that respondent No.1/Mahadeva was riding the TVS Victor motor cycle and he suffered injuries on his left forehead, left eye and left cheek, Kempashetty was the pillion rider with respondent No.1 and he had also suffered injuries. The complainant further states that the rider of Hero Honda Passion motor cycle bearing No.KA-09-EG-9980 was one H.C.Darshan Prasad i.e., the claimant himself and he was accompanied by two pillion riders namely, Siddalingu and Nagaraju and they had also suffered injuries. When there was

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such material inconsistency in the claimant’s own evidence, he was expected to examine those injured witnesses, complainant or the eye-witness to clarify the said document. It is no doubt true that after investigation, charge sheet was filed projecting respondent No.1 as the rider of the motor scooter bearing No.KA-09-EG-9980 and the claimant as the pillion rider on TVS Victor motor cycle bearing No.KA-45-E-6049.

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It is the settled law that the charge sheet is not conclusive proof of fact stated therein. When there are inconsistencies in the evidence, the claimant has the burden to clarify those inconsistencies and discharge his burden of proving the occurrence of the accident as alleged by adducing acceptable evidence. This view of ours is supported by the following judgments of this Court:

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i. Veerappa v. Siddappa¹

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ii. Mahadevi W/o Shrishail Kore & ors., v. Shivaputra S/o Ramappa Shivasharan & anr.² .

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To add to the above, the claimant himself in his cross-examination admitted that he has produced the complaint

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and the contents of the same are correct. This clear and

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1 ILR 2009 KAR 3562

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2 MFA No.201689/2016, disposed of on 20.11.2020

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unequivocal admission was not explained or clarified. In one breath he states that the motor cycle on which he was traveling belonged to respondent No.1 and in another breath in his cross-examination he claimed that, he had purchased the TVS victor cycle bearing No.KA-45-E-6049.

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As directed by this Court, learned counsel for respondent No.2 produced copy of the judgment dated 18.7.2011 in MVC No.881/2007 passed by the very same Court i.e., Additional Senior Civil Judge, Srirangapatna. The impugned award is passed on 19.7.2011 by the same presiding officer. The learned judge in MVC No.881/2007 has given a finding that three persons including the rider were traveling on motor cycle bearing No.KA-09-EG-9980. In MVC No.881/2007 the claimant Siddalingaiah @ Siddalingaswamy also claimed that he was pillion rider on motor cycle bearing No.KA-45-E-6049, but the Tribunal recorded a finding that he was traveling as pillion rider on motor cycle bearing No.KA-09-EG-9980. The above judgment coupled with the other material on record show that there are material contradictions in the evidence of claimant regarding he being pillion rider at the relevant time on motor cycle bearing NO.KA-45-E-6049.

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The Hon’ble Supreme Court in the case of Oriental Insurance Co.Ltd., v. Premlatha Shukla³ , held that where parts of the document have been relied on by both the parties, the claims Tribunal may rely on the same irrespective of whether the contents of the document have been proved or not. It was also held that once a part of the document is admitted in evidence, party bringing the same on record cannot be permitted to turn around and contend that the other part thereof had not been proved.

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In this case also having proved Ex.P1/FIR wherein the claimant is said to have been rider of motor cycle No.KA09-EG-9980, it is not open to him to contend that the said document shall be rejected partly. If at all there was inconsistency in the same, he should have clarified that by examining the other injured witnesses or the complainant which he failed to do. Even respondent No.1 did not enter the witness box to say that he was riding the said motor cycle.

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The material on record clearly shows that there was unholy nexus between the claimant and respondent No.1 to

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3 (2007) 13 SCC 476

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exploit the funds of respondent No.2/insurer, and the charge sheet/Ex.P5 is the outcome of such collusion. It is clear from the prayer of respondent No.1 in his appeal that he does not seek for dismissal of the claim petition against him, but he claims that the claimant should be paid compensation and that the claim petition should be allowed against respondent No.2/insurer.

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On accepting the evidence on record which shows that the accident occurred due to actionable negligence on the part of the claimant himself and he was not holding the driving licence at the relevant time, he is not entitled to any compensation. The Tribunal holding that respondent No.1 permitted the claimant to ride the motor cycle No.KA-09-EG9980 without licence which lead to the accident, should not have allowed the claim petition against respondent No.1 also. The petition should have been dismissed.

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For the aforesaid reasons, the appeal of respondent No.1 i.e., owner of vehicle deserves to be allowed and the appeal of the claimant is liable to be dismissed.

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Hence, the following:

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ORDER

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MFA No.9448/2011 is hereby dismissed. MFA

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No.9806/2012 is allowed. The claim petition in MVC No.530/2008 on the file of Additional Senior Civil Judge and MACT, Srirangapatna, is hereby dismissed with costs.

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Sd/(K.S.MUDAGAL) JUDGE

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Sd/(C.M. POONACHA) JUDGE

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ND List No.: 1 Sl No.: 38

H C Darshan Prasad v. Mahadeva

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H C Darshan Prasad v. Mahadeva

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