IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 05TH DAY OF AUGUST, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT M.F.A.NO.9391 OF 2012 (MV) BETWEEN KUMARA @ KUMARASWAMY S/O SRI RAMANNA, AGED ABOUT 32 YEARS, GORAGONDANAHALLI VILLAGE, KASABA HOBLI, TIPTUR TALUK.
PRESENTLY RESIDING AT AKKANAHALLI (KOODU), NUGGEHALLI HOBLI, CHANNARAYAPATHA TALUK. ...APPELLANT (BY SRI NATARAJU B HALEMANE, ADVOCATE) AND 1. SMT. INDIRAMMA W/O RAJESHEKAR, NEELAKANTASWAMY CIRCLE, B.H.ROAD, TIPTUR, TUMKUR DISTRICT.
2. THE ORIENTAL INSURANCE CORPORATION LTD. BRANCH OFFICE, JAYADEVA HOSTEL BUILDING, B.H.ROAD, TIPTUR.
REPT. BY THE ORIENTAL INSURANCE CORPORATION LTD., SUBASH SQUARE, S.S.COMPLEX, HASSAN. ...RESPONDENTS (BY SRI T.M. VIJAYAKUMAR, ADVOCATE FOR R-1; SMT. HARINI SHIVANANDA, ADVOCATE FOR R-2) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 05.06.2012 PASSED IN MVC NO.88/2007 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT, CHANNARAYAPATNA, DISMISSING THE CLAIM PETITION FOR COMPENSATION.
THIS MFA COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
J U D G M E N T The claimant-appellant is before this Court under Section 173(1) of the Motor Vehicles Act, 1988 (‘the Act’ for brevity) aggrieved by dismissal of claim petition by the judgment and award dated 05.06.2012 in M.V.C.No.88/2007 on the file of the Fast Track Court at Channarayapatna.
2. The claimant-appellant had filed claim petition under Section 166 of the Act, seeking compensation for the injuries sustained by him in a road traffic accident that occurred on 02.12.1999.
3. On 02.12.1999, the claimant-appellant had gone to brick kiln of Channegowda in a lorry bearing Registration No.KA-02-A-5678 belonging to respondent No.1 for loading the bricks. It is stated that at about 10.00 a.m., when the lorry was loaded with bricks to an extent of 3/4th of its capacity, the driver of the lorry had driven the said lorry in reverse direction carelessly and in a negligent manner, as a result of the same, the back door of the lorry dashed against the brick kiln and bricks fell on the claimant-appellant and he sustained burn injuries. The claimant-appellant is said to have taken treatment at General Hospital, Tiptur and Victoria Hospital, Bengaluru and was an in-patient for three months.
4. On service of notice, respondent Nos.1 and 2 appeared before the Tribunal. Respondent No.2 had filed his objections denying the accident and involvement of lorry bearing Registration No.KA-02-A-5678 in the said accident.
5. Based on the pleadings, the Tribunal had framed the following three points for its consideration:
1. ¢£ÁAPÀ 02-02-1999 gÀAzÀÄ ¨É½UÉÎ 10-00 ¸ÀªÀÄAiÀÄzÀ°è 1£Éà JzÀÄjUÉ ¸ÉÃjzÀ Áj £ÀA.PÉE-02-J-5678 gÀ°è EnÖUÉ vÀÄA§®Ä ºÉÆÃVzÁÝUÀ ¸ÀzÀj Áj ZÁ®PÀ£ÀÄ Cwà ªÉÃUÀ ªÀÄvÀÄÛ CeÁUÀgÀÆPÀvɬÄAzÀ ÁjAiÀÄ£ÀÄß »AzÀPÉÌ vÉUÉzÀÄPÉƼÀî ÁV, CfðzÁgÀgÀÄ ÁjAiÀÄ qÉÆÃgï¤AzÀ PɼÀUÉ ©zÀÄÝ EnÖUÉ UÀÆr£À M¼ÀUÉ ©zÀÄÝ ¨ÉAQ¬ÄAzÀ ¸ÀÄlÄÖ UÁAiÀÄUÉÆArgÀÄvÁÛgÉ JAzÀÄ CfðzÁgÀgÀÄ ¸ÁPÁë åzsÁgÀUÀ¼À ªÀÄÆ®PÀ gÀÄdĪÁvÀÄ¥Àr¸ÀĪÀgÉ?
2. CfðzÁgÀgÀÄ vÀªÀÄä CfðAiÀÄ°è PÉýzÀ jÃw ¥ÀjºÁgÀªÀ£ÀÄß ¥ÀqÉAiÀÄ®Ä CºÀðgÉÃ? ºÁVzÀÝ°è JµÀÄÖ ªÉÆvÀÛ ªÀÄvÀÄÛ AiÀiÁjAzÀ?
3. AiÀiÁªÀ DzÉñÀ CxÀªÁ CªÁqÀÄð?
6. In support of his case, the claimant-appellant examined himself as PW.1 and got marked documents Exs.
P.1 to P.8. On behalf of Insurance Company, Senior Assistant Officer was examined as RW.1 and got marked a document as Ex.R.1. The Tribunal, by its judgment dated 23.11.2009, dismissed the claim petition on the ground that the claimant-appellant failed to prove the accident. Being aggrieved by the same, the claimant-appellant had filed M.F.A.No.857/2010 before this Court. This Court, by its judgment dated 17.08.2011, remanded the matter to the Tribunal to provide an opportunity to the appellant to lead an additional evidence. After remand, the claimant- appellant has examined one more witness i.e. PW.3- Murthy and got marked additional documents at Exs.P.7 to P.15. The Tribunal, on the material available on record and on scrutiny, under impugned judgment, dismissed the claim petition. Hence, the appellant-claimant is before this Court in this appeal.
7. Heard the learned counsel for the appellant and learned counsel for the respondent No.2-Insurance Company. Perused the records.
8. Learned counsel for the appellant would submit that the Tribunal failed to consider the material on record in its proper perspective and committed an error in rejecting the claim petition. Learned counsel further submits that after remand, the claimant had examined PW.3 and produced Exs.P.7 to P.15 and on the same set of facts, the Commissioner, Workmen Compensation, Tumkur has awarded compensation, which the Tribunal failed to consider. He further submits that the charge sheet was filed against the driver of the lorry, which the Tribunal had failed to taken into account. Thus, learned counsel prays for allowing the appeal.
9. Per contra, learned counsel for respondent No.2-Insruance Company would submit that the material on record would indicate that the claimant-appellant had sustained injuries while he was working in the brick kiln and not due to accident involving the lorry bearing Registration No.KA-02-A-5678. Learned counsel invites attention of this Court to Exs.P.3, P.5, P.7 and P.8 to contend that the injuries suffered by the claimant-
appellant is not accidental injuries involving lorry. Thus, the learned counsel prays for dismissal of the appeal.
10. On hearing the learned counsel for the parties and on going through the impugned judgment and award including the lower court records, the question which arises for consideration is whether the claimant has proved the accident involving lorry bearing Registration No.KA-02-A-5678? The answer to the above question is in the negative for the following reasons:-
According to the claimant-appellant, the alleged incident had occurred on 02.12.1999 at 10.00 a.m., involving lorry bearing Registration No.KA-02-A-5678, wherein the driver of the lorry had driven the said lorry in a reverse direction in a negligent manner. As a result of the same, the back door of the lorry dashed against the brick kiln and bricks fell on the claimant-appellant, due to which he sustained burn injuries. The records would show that immediately, the claimant-appellant was taken to Government Hospital, Tiptur at 10.00 a.m. The Wound Certificate-Ex.P.3 issued by the Government Hospital, Tiptur would indicate that “H/O burns at brick works at 10 AM”. Thereafter, the claimant-appellant was shifted to Victoria Hospital, Bengaluru. Ex.P.5-OP/IP Extract Certificate issued by the Victoria Hospital, Bengaluru indicates as follows:-
“Absconded from ward on 08.12.1999. He sustained accidental burns where hot bricks fell over him while baking on 2.12.99 at 10-30 AM. He was taken to Tiptur General Hospital and was referred from there.”
So also Ex.P.7-Discharge Summary reads as follows:-
“Patient sustained accidental burns when hot bricks fell on him while baking them on legs & trunk on 2/12/99 at 10:30 A.M.”
Whereas, FIR was lodged with regard to the alleged accident at 10.45 a.m., stating that the driver of the lorry had driven on the reverse direction and at that point of time, back door of the lorry opened as it dashed against the brick kiln and bricks fell on the claimant-appellant and he suffered burn injuries.
11. It is to be noted that at 10.00 a.m. when the claimant was taken to General Hospital, it is recorded that the claimant-appellant had sustained burn injuries while baking the bricks as the bricks fell down on him, while lodging the FIR, the version of the claimant-appellant is totally changed. The claimant, when he was admitted to Victoria Hospital, the history is taken as bricks fell on the claimant-appellant while baking the bricks. The above material would indicate that the claimant, who is stated to have suffered burn injuries as a result of involving the lorry bearing Registration No.KA-02-A-5678 is totally false. Taking note of the award passed by the Commissioner for Workmen Compensation, the Tribunal observed that before the Commissioner, all the documents produced before the Tribunal are not produced. Most importantly MLC Register extract was not before the Labour Commissioner. As per the document marked at Ex.P.11, Doctor- Ramachandra B.S. was examined as PW.2 in the proceedings before the Labour Commissioner. Doctor in his evidence has stated that the claimant has come with injuries stating he sustained burn injuries while they were working in bricks kiln. Filing of the charge sheet against the driver would not come to the aid of the claimant-appellant when all the materials are against him. The claimant has failed to prove the accident. The Tribunal, by its reasoned judgment has rejected the claim petition.
12. No ground is made out to interfere with the judgment and award passed by the Tribunal. Accordingly, appeal stands dismissed.
Sd/- JUDGE HA/-