irappa Vs. I.M. MomIn and Another - Court Judgment

SooperKanoon Citationsooperkanoon.com/1106192
CourtKarnataka Dharwad High Court
Decided OnMar-28-2013
Case NumberMFA No. 5595 of 2008 (MV)
JudgeH.S. KEMPANNA
Appellantirappa
Respondenti.M. MomIn and Another
Excerpt:
motor vehicles act - section 173(1) -(prayer: this mfa is filed under section 173(1) of the motor vehicles act, against the judgment and award dated 15.09.2006, passed in mvc no.1745/1998 on the file of the addl. civil judge (sr.dn.), gokak at gokak, dismissing the petition filed under section 166 of m.v. act.) 1. this is a claimant's appeal challenging the judgment and order of the tribunal dismissing his claim petition. 2. the appellant-claimant filed his petition before the tribunal claiming compensation in respect of the injuries, which he had sustained in a motor vehicle accident that took place on 25.01.1997 near samrath cement factory situated on gokak-belgaum road. according to him on the date of accident, he was proceeding on his bicycle and while he was near samrath cement factory, the bus bearing registration no.ka-22/f-305 came from his behind driven by its driver at a high speed in a rash and negligent manner and dashed against him. on account of the impact, the petitioner fell down, the bus spead away from the said place. thereafter, he got up and was waiting by the side of the road for a vehicle to proceed to the hospital as he had sustained severe injuries on his leg. while he was so waiting, a cyclist by name chambanna came to the said place, who shifted him to dr.koppa hospital at gokak. there he took treatment for the injuries, which he had sustained in the accident and on medical advise, he also took follow up treatment. he spent huge money for the treatment of the injuries. despite the same, he is not completely cured of the injuries. on account of which, he is unable to carry on his avocation, as a businessman, which has resulted in loss of income to him. the respondent is the owner of the bus involved in the accident, therefore they are liable to pay compensation to him as claimed in his petition. 3. after service of notice, the respondent-corporation appeared and contested the claim of the petitioner. in their objection statement interalia specifically contended, the bus as alleged by the petitioner is not at all involved in the accident. the bus in question has no nexus with the alleged injuries sustained by the petitioner and it had not plied at the said place, on the said road at the time of accident. they also denied the age and occupation of the petitioner as claimed in his petition. in sum and substance, they contended as the bus is not involved in the accident and as it has no nexus with the injuries sustained by the petitioner, they are not liable to pay any compensation, accordingly, they sought for dismissal of the petition. 4. on the basis of the above pleadings, the tribunal framed the following issues: i) whether the petitioner proves that the alleged accident occurred and solely due to rash and negligent driving of bus ka-22/f- 305 of the ksrtc by its driver? ii) alternatively, whether the respondent no.1 proves that the accident was occurred due to contributory negligence and if so, what is the proportion? iii) whether the petitioner proves that due to the impact of alleged accident he sustained alleged injuries? if so, what were the nature of injuries? what is the permanent physical disability now being suffered? iv) whether the petitioner is entitled for awarding compensation? if so, what is just and reasonable compensation and from whom? v) what order or award? 5. the claimant in support of his case got himself examined as pw1, an eyewitness as pw2 and the medical officer, who had treated him as pw3. he produced in all 30 documents, which came to be marked as exs.p1 to p30. the respondent in support of their case got examined the driver of the bus as dw1 and also got marked ex.d1. 6. the tribunal on considering the oral and documentary evidence placed on record, came to the conclusion that the petitioner has failed to prove that the accident in question has taken place on account of the actionable negligence of the driver of the bus bearing registration no.ka-22/f-305 and the petitioner has also failed to prove, that the bus bearing no.ka-22/f-305 is involved in the accident and accordingly, by the impugned judgment and order dismissed his claim petition. 7. the appellant-claimant being aggrieved by the said judgment and order of dismissal of his claim petition is in appeal before this court. 8. sri.t.m.nadaf for sri.a.s.mulla, learned advocate appearing for the appellant contended that the tribunal has failed to appreciate the evidence of the claimant and pw2 the eyewitness to the accident, which clearly goes to show that the bus involved in the accident, is the one bearing registration no.ka-22/f-305 belonging to the respondent- corporation. he further submitted that though the police have submitted a "c" report, in view of the fact that the earliest complaint-ex.p1 filed before the police discloses that the bus involved in the accident is an st bus, in view of the evidence of the petitioner and the eyewitness, it clinchingly establishes that the claimant has proved the accident, which has taken place on account of the actionable negligence of the driver of the bus bearing its registration no.ka-22/f-305. despite these materials on record, the tribunal without appreciating the same in its right perspective has committed an error in holding that the claimant has not established that the bus bearing no.ka-22/f-305 is not involved in the accident and accordingly has committed an error in dismissing the claim petition, which cannot be sustained, it be set aside and the petition of the appellant be considered on merits. 9. per contra, the learned counsel appearing for the respondent-corporation supported the impugned judgment and order of the tribunal. 10. taking the rival contentions, the evidence and the documents, which have been placed before me, the point that arises for my consideration is as under: whether the impugned judgment and order of the tribunal dismissing the claim petition of the petitioner calls for any interference? 11. it is the case of the appellant-claimant that on the date of accident, he was proceeding on his bicycle and while he was near samrath cement factory situated on gokak- belgaum road, the ksrtc bus bearing registration no.ka-22/f-305 driven by its driver came from his behind and dashed against him. on account of the impact, he fell down and sustained severe injuries on his right leg. the bus after dashing against him spead away from the spot. after the accident, he stood up and was waiting for a vehicle by the side of the road, at that point of time, one chambanna, a cyclist came, with his assistance, he was shifted to dr.koppa hospital at gokak, where he took treatment for the injuries, which he had sustained in the accident. 12. in order to establish that the bus bearing registration no.ka-22/f-305 is the bus driven by its driver, which is dashed against him, resulting in injuries, he has examined an eyewitness by name mutteppa mareppa sintre as pw2. neither the petitioner nor the pw2-eyewitness examined in the case have stated in their evidence, as to how they came to know that the bus involved in the accident is the bus bearing registration no.ka-22/f-305. according to the petitioner, it was one chambanna, who came immediately after the accident and shifted him to the hospital. he has produced the complaint-ex.p1, which discloses that the complaint has been filed by on basappa ningappa uppin, a rider of the cycle on the very day of the accident before the police and that the complaint does not disclose that the bus bearing registration no.ka-22/f-305 was involved in the accident, it only reveals that an st bus has dashed against the petitioner. 13. the petitioner in support of his case that the bus belonging to the corporation is the one involved in the accident has not taken steps to either examine chambanna who came according to him, immediately after the accident nor the complainant by name basappa ningappa uppin, who has filed the complaint before the police on the very day of the accident. they would have been the best persons to speak about the accident. may be they might not have known the registration number of the bus at the time of accident, as it is well settled that the fir is not the be all and end all. the police after investigation in respect of the complaint filed by basappa ningappa uppin have filed a "c" report stating that they have not been able to find out as to whether the bus bearing registration no.ka-22/f-305 is the bus involved in the accident. the petitioner has not challenged the "c" report filed by the police. it is brought to my notice that he has not even taken any steps to file a private complaint to prove that the accident has taken place on account of the actionable negligence of the driver of the bus bearing registration no.ka- 22/f-305. the tribunal on examination of the entire materials on record has come to the right conclusion in holding that the claimant and the eyewitness have not stated in their evidence as to how they came to know that the bus bearing registration no.ka-22/f-305 belonging to respondent-corporation is the one, which is involved in the accident. in the absence of the evidence of either chambanna or the complainant who filed the complaint and in view of the complainant and pw2 not stating as to how they came to know that the bus bearing registration no.ka-22/f-305 is the one involved in the accident. i do not find any infirmity in the finding of the tribunal that the claimant has failed to establish that the bus bearing registration no.ka-25/f-305 belonging to the respondent-corporation is involved in the accident. 14. the tribunal on appreciation of the evidence and the documents placed on record has come to right conclusion in dismissing the claim petition. i do not find any infirmity in the said finding of the tribunal calling for interference in this appeal. accordingly, the appeal is dismissed as devoid of merits at the time of admission. 15. in view of the dismissal of the appeal on merits, i.a.no.1/2010 filed for condoning the delay of 493 days in the filing the appeal does not arise for consideration and accordingly, it is dismissed as infructuous.
Judgment:

(Prayer: This MFA is filed under section 173(1) of the Motor Vehicles Act, against the judgment and award dated 15.09.2006, passed in MVC no.1745/1998 on the file of the Addl. Civil Judge (Sr.Dn.), Gokak at Gokak, dismissing the petition filed under Section 166 of M.V. Act.)

1. This is a claimant's appeal challenging the judgment and order of the Tribunal dismissing his claim petition.

2. The appellant-claimant filed his petition before the Tribunal claiming compensation in respect of the injuries, which he had sustained in a motor vehicle accident that took place on 25.01.1997 near Samrath Cement Factory situated on Gokak-Belgaum Road. According to him on the date of accident, he was proceeding on his bicycle and while he was near Samrath Cement Factory, the bus bearing registration No.KA-22/F-305 came from his behind driven by its driver at a high speed in a rash and negligent manner and dashed against him. On account of the impact, the petitioner fell down, the bus spead away from the said place. Thereafter, he got up and was waiting by the side of the road for a vehicle to proceed to the hospital as he had sustained severe injuries on his leg. While he was so waiting, a cyclist by name Chambanna came to the said place, who shifted him to Dr.Koppa Hospital at Gokak. There he took treatment for the injuries, which he had sustained in the accident and on medical advise, he also took follow up treatment. He spent huge money for the treatment of the injuries. Despite the same, he is not completely cured of the injuries. On account of which, he is unable to carry on his avocation, as a businessman, which has resulted in loss of income to him. The respondent is the owner of the bus involved in the accident, therefore they are liable to pay compensation to him as claimed in his petition.

3. After service of notice, the respondent-Corporation appeared and contested the claim of the petitioner. In their objection statement interalia specifically contended, the bus as alleged by the petitioner is not at all involved in the accident. The bus in question has no nexus with the alleged injuries sustained by the petitioner and it had not plied at the said place, on the said road at the time of accident. They also denied the age and occupation of the petitioner as claimed in his petition. In sum and substance, they contended as the bus is not involved in the accident and as it has no nexus with the injuries sustained by the petitioner, they are not liable to pay any compensation, accordingly, they sought for dismissal of the petition.

4. On the basis of the above pleadings, the Tribunal framed the following issues:

i) Whether the petitioner proves that the alleged accident occurred and solely due to rash and negligent driving of Bus KA-22/F- 305 of the KSRTC by its driver?

ii) Alternatively, whether the respondent No.1 proves that the accident was occurred due to contributory negligence and if so, what is the proportion?

iii) Whether the petitioner proves that due to the impact of alleged accident he sustained alleged injuries? if so, what were the nature of injuries? what is the permanent physical disability now being suffered?

iv) Whether the petitioner is entitled for awarding compensation? If so, what is just and reasonable compensation and from whom?

v) What order or award?

5. The claimant in support of his case got himself examined as PW1, an eyewitness as PW2 and the Medical Officer, who had treated him as PW3. He produced in all 30 documents, which came to be marked as Exs.P1 to P30. The respondent in support of their case got examined the driver of the bus as DW1 and also got marked Ex.D1.

6. The Tribunal on considering the oral and documentary evidence placed on record, came to the conclusion that the petitioner has failed to prove that the accident in question has taken place on account of the actionable negligence of the driver of the bus bearing registration No.KA-22/F-305 and the petitioner has also failed to prove, that the bus bearing No.KA-22/F-305 is involved in the accident and accordingly, by the impugned judgment and order dismissed his claim petition.

7. The appellant-claimant being aggrieved by the said judgment and order of dismissal of his claim petition is in appeal before this Court.

8. Sri.T.M.Nadaf for Sri.A.S.Mulla, learned advocate appearing for the appellant contended that the Tribunal has failed to appreciate the evidence of the claimant and PW2 the eyewitness to the accident, which clearly goes to show that the bus involved in the accident, is the one bearing registration No.KA-22/F-305 belonging to the respondent- Corporation. He further submitted that though the Police have submitted a "C" report, in view of the fact that the earliest complaint-Ex.P1 filed before the Police discloses that the bus involved in the accident is an ST bus, in view of the evidence of the petitioner and the eyewitness, it clinchingly establishes that the claimant has proved the accident, which has taken place on account of the actionable negligence of the driver of the bus bearing its registration No.KA-22/F-305. Despite these materials on record, the Tribunal without appreciating the same in its right perspective has committed an error in holding that the claimant has not established that the bus bearing No.KA-22/F-305 is not involved in the accident and accordingly has committed an error in dismissing the claim petition, which cannot be sustained, it be set aside and the petition of the appellant be considered on merits.

9. Per contra, the learned counsel appearing for the respondent-Corporation supported the impugned judgment and order of the Tribunal.

10. Taking the rival contentions, the evidence and the documents, which have been placed before me, the point that arises for my consideration is as under: Whether the impugned judgment and order of the Tribunal dismissing the claim petition of the petitioner calls for any interference?

11. It is the case of the appellant-claimant that on the date of accident, he was proceeding on his bicycle and while he was near Samrath Cement Factory situated on Gokak- Belgaum Road, the KSRTC bus bearing registration No.KA-22/F-305 driven by its driver came from his behind and dashed against him. On account of the impact, he fell down and sustained severe injuries on his right leg. The bus after dashing against him spead away from the spot. After the accident, he stood up and was waiting for a vehicle by the side of the road, at that point of time, one Chambanna, a cyclist came, with his assistance, he was shifted to Dr.Koppa Hospital at Gokak, where he took treatment for the injuries, which he had sustained in the accident.

12. In order to establish that the bus bearing registration No.KA-22/F-305 is the bus driven by its driver, which is dashed against him, resulting in injuries, he has examined an eyewitness by name Mutteppa Mareppa Sintre as PW2. Neither the petitioner nor the PW2-eyewitness examined in the case have stated in their evidence, as to how they came to know that the bus involved in the accident is the bus bearing registration No.KA-22/F-305. According to the petitioner, it was one Chambanna, who came immediately after the accident and shifted him to the Hospital. He has produced the complaint-Ex.P1, which discloses that the complaint has been filed by on Basappa Ningappa Uppin, a rider of the cycle on the very day of the accident before the Police and that the complaint does not disclose that the bus bearing registration No.KA-22/F-305 was involved in the accident, it only reveals that an ST bus has dashed against the petitioner.

13. The petitioner in support of his case that the bus belonging to the Corporation is the one involved in the accident has not taken steps to either examine Chambanna who came according to him, immediately after the accident nor the complainant by name Basappa Ningappa Uppin, who has filed the complaint before the Police on the very day of the accident. They would have been the best persons to speak about the accident. May be they might not have known the registration number of the bus at the time of accident, as it is well settled that the FIR is not the be all and end all. The Police after investigation in respect of the complaint filed by Basappa Ningappa Uppin have filed a "C" report stating that they have not been able to find out as to whether the bus bearing registration No.KA-22/F-305 is the bus involved in the accident. The petitioner has not challenged the "C" report filed by the Police. It is brought to my notice that he has not even taken any steps to file a private complaint to prove that the accident has taken place on account of the actionable negligence of the driver of the bus bearing registration No.KA- 22/F-305. The Tribunal on examination of the entire materials on record has come to the right conclusion in holding that the claimant and the eyewitness have not stated in their evidence as to how they came to know that the bus bearing registration No.KA-22/F-305 belonging to respondent-Corporation is the one, which is involved in the accident. In the absence of the evidence of either Chambanna or the complainant who filed the complaint and in view of the complainant and PW2 not stating as to how they came to know that the bus bearing registration No.KA-22/F-305 is the one involved in the accident. I do not find any infirmity in the finding of the Tribunal that the claimant has failed to establish that the bus bearing registration No.KA-25/F-305 belonging to the respondent-Corporation is involved in the accident.

14. The Tribunal on appreciation of the evidence and the documents placed on record has come to right conclusion in dismissing the claim petition. I do not find any infirmity in the said finding of the Tribunal calling for interference in this appeal. Accordingly, the appeal is dismissed as devoid of merits at the time of admission.

15. In view of the dismissal of the appeal on merits, I.A.No.1/2010 filed for condoning the delay of 493 days in the filing the appeal does not arise for consideration and accordingly, it is dismissed as infructuous.