IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE DR. JUSTICE H.B.PRABHAKARA SASTRY M.F.A.No.11343/2011 BETWEEN:
Imran Khan, W/o Mohamood Khan, Aged 32 years, Residing at Police Station Road, Pandavapura. … APPELLANT (By Sri P.S.Divakara, Adv.) AND:
1. Anwar, S/o Abdul Khader, Major, Driver – Lorry No.MYS 6962, Residing at Patel Colony, I Floor, Krishnappa Bldgs., Pandavapura Railway Station, Pandavapura, Mandya District – 574 6201.
2. Pasha, S/o Abdul Khader, Major, Owner – Lorry No.MYS 6962, Bharat Vulcanizing Works, K.R.Pet Road, Pandvapura – 574 6201.
3. United India Insurance Co. Ltd., 1110-3, BMC Road, Mandya – 574 6201, Rep. by its Branch Manager. … RESPONDENTS (By Sri P.B.Raju, Adv. for R-3;
R-1 – service of notice held sufficient vide Order dated 24.02.2016;
R-2 – service of notice held sufficient vide Order dated 25.07.2014) This Miscellaneous First Appeal is filed under Section 173(1) of Motor Vehicles Act against the judgment and award dated 22.08.2011 passed in M.V.C.No.377/2009 (Old No.24/1999) on the file of the Civil Judge (Sr.Dn.), JMFC, MACT, Pandavapura, partly allowing the claim petition for compensation.
This appeal coming on for Final Hearing, this day, the Court delivered the following:
JUDGMENT This appeal is filed under Section 173(1) of the Motor Vehicles Act, 1988, seeking for setting aside of the finding of the Civil Judge (Sr.Dn.) & JMFC and Motor Accident Claims Tribunal, Pandavapura (hereinafter referred to as ‘The Tribunal’, for short), which in its judgment dated 22.08.2011 in MVC No.377/2009 (Old No.24/1999), which is challenged in this appeal, has fixed the liability upon respondent No.2 – owner of the vehicle and exonerated respondent No.3 – Insurer of the vehicle. The appellant has prayed for fixing the liability upon the Insurer.
2. According to the claimant/appellant, on the alleged date of accident which was on 07.09.1997 at 11.00 p.m., he was returning from Modern Rice Mill situated at Aralahalli towards Pandavapura on a public road, on which time, the offending vehicle which is a lorry bearing No.MYS-6962 coming from the opposite direction with high speed and in a rash and negligent manner, dashed to him causing grievous injuries including multiple fractures upon him.
3. The Tribunal while awarding compensation of a sum of Rs.9,13,646.00 to him, observing that in view of the fact that in Ex.P-3 which is a wound certificate it is shown that claimant/injured had fallen from the lorry, held that he was a gratuitous passenger traveling, as such it exonerated the Insurer from its liability to pay compensation.
4. The argument of the learned Counsel for the appellant is, that when the evidence and all other documents produced by the claimant go to show that he was a pedestrian, the Tribunal relying upon isolated document which is a wound certificate and not even verifying the veracity of the history of the accident mentioned therein, has falsely arrived at a conclusion that the claimant was not a pedestrian, which led it to exonerate the Insurer from its liability to pay compensation.
5. Per contra, learned Counsel for the respondent- Insurance Company in his argument submitted that immediately after the accident, in the very first information given to a third person i.e., the doctor who treated the injured, the informant has clearly stated that the injured was traveling in the lorry and he fell down from the said vehicle which caused injuries to him. Therefore, the Tribunal has rightly held that the claimant was not a pedestrian, as such it exonerated the Insurer from its liability. Learned Counsel for the Insurance Company further submits that there was four days delay in lodging the complaint with respect to the accident, which has also been properly appreciated by the Tribunal while holding that to overcome that he was a traveler in the lorry, they have taken time to design the complaint.
6. A perusal of the wound certificate at Ex.P-3 shows that one Sri Venkatesha who is said to be the friend of the injured, is said to have shifted the injured to the hospital and gave the history of the accident to the doctor. The said history as recorded in Ex.P-3 shows that it was an alleged fall from a running vehicle (lorry) on 07.09.1997 at 11.00 p.m. Admittedly, the said Venkatesha was examined by the claimant as PW-5. The said witness in his examination-in-chief has apart from stating that he was a eye-witness to the alleged accident and also the person who shifted the injured to the hospital and got him medically treated, has specifically stated that at the time of accident, the injured along with one more person was walking on the road as a pedestrian. It was at that time, a lorry came from the opposite direction and dashed to him. That categorical and specific statement by the witness has not been denied in his cross-examination. Therefore, when the recording made in Ex.P-3 – wound certificate was said to have been at the instance of one Sri Venkatesha, the doctor becomes a hear-say so far as the history of the accident is concerned. On the other hand, the very same informant to the doctor when entered the witness box as PW-5, and specifically stated that the injured was walking as a pedestrian at the time of accident and a lorry coming from the opposite direction dashed to him, the same should have been necessarily denied in his cross- examination and also drawing his attention to his alleged statement before the doctor as recorded in Ex.P-3. When having such an opportunity of overcoming the statement made by PW-5 regarding the position of the claimant/injured in the case, when the respondent has not made use of the same, rather the said statement of PW-5 that injured was a pedestrian is undisputed, the Tribunal relying upon the said recording of history in Ex.P-3 proves to be not correct. Further, the other witness including the claimant as PW-1 and PW-3 also stated that he was also a eye-witness to the incident and he has also stated that he was accompanying the injured as a pedestrian at the time of accident and that the lorry coming from the opposite direction dashed against the claimant who was walking next to him on the side of the road. Though denial suggestion was made to him that he was not an eye-witness, but it was not suggested to the said witness also in his cross-examination that claimant was not a pedestrian at the time of accident. Therefore, the finding of the Tribunal that claimant was not a pedestrian proves to be an erroneous finding. On the other hand, it is proved that claimant was a pedestrian at the time of accident. In the light of cogent evidence coming from PWs-3 & 5 as analyzed above, mere delay in lodging the complaint would not take away the evidentiary value of PWs-3 & 5. Thus, it has to be held that the claimant was a pedestrian at the time of accident. That being the case, when the coverage of the offending vehicle under insurance is not disputed, the Insurer cannot be exonerated from its liability to pay the awarded compensation to the claimant/appellant.
Accordingly, the appeal stands allowed. The finding of the Tribunal in the impugned judgment exonerating respondent No.3 i.e., Insurance Company from its liability to pay awarded compensation along with interest thereupon and fixing the liability solely upon respondent No.2 is modified, and both respondent No.2 – owner of the alleged offending vehicle and respondent No.3 – Insurer of the said vehicle are jointly and severally held liable to pay the awarded compensation together with awarded rate of interest. The respondent No.3 in the claim petition being the Insurance Company to deposit the awarded amount together with accrued interest thereupon in the Tribunal within eight weeks from today.
Draw modified award accordingly.
Registry to forward a copy of this judgment along with lower court records to the Tribunal without delay.
Sd/- JUDGE KK