IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT MFA No.4270 OF 2019 (MV) BETWEEN M.T. NARAYANA SHETTY AGED ABOUT 81 YEARS S/O THIMMANNA R/A NO.604, MAHENDRA MANOR, PATHRAO LANE, KARANGALPADY, MANGALURU, D. K. ... APPELLANT (BY SRI PAVANACHANDRA SHETTY, ADVOCATE) AND 1. KISHAN KUMAR HEGDE AGE: MAJOR S/O RAVIRAJ HEDGE R/O NO.101, ZEN GARDEN KITTUR CHENNAMMA ROAD, AJJARKAD UDUPI TALUK AND DISTRICT – 567 007 2. THE ORIENTAL INSURANCE CO. LTD., OFF: VISHNU PRAKASH II & III FLOOR, COURT ROAD UDUPI DISTRICT-567 007 3. THE MANAGING DIRECTOR, KSRTC & THE AUTHORITY OF COMPENSATION, K B ROAD BENGALURU-01 4. THE DIVISIONAL CONTROLLER OF MANGALURU - 1ST DEPOT, KSRTC, MANGALURU DIVISION MANGALURU - 575003 REP: BY ITS MANAGER. ... RESPONDENTS THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:09.05.2019 PASSED IN MVC NO.1284/2016 ON THE FILE OF THE I ADDITIONAL DISTRICT JUDGE AND II ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, MANGALURU,(DAKSHINA KANNADA), DISMISSING THE CLAIM PETITION FOR COMPENSATION.
THIS MFA COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT This appeal by the claimant lays a challenge to the judgment & award dated 9.5.2019 entered by the learned I Addl. District Judge & MACT II, Mangaluru, whereby the claim petition filed by the appellant in M.V.C.No.1284/2016 having been tried, has been dismissed.
2. Before adverting to the facts, it needs to be placed on record that the learned counsel for the appellant Sri.H. Pavana Chandra Shetty argued the case in a raised voice and with annoying demeanor; repetitive arguments consumed more than an hour of court’s valuable time than what the appeal actually merited, the suggestion to focus on the points having fallen on his deaf ears; much is left unsaid.
3. BRIEF FACTS OF THE CASE:
(a) the appellant, a retired Railway employee and a practicing lawyer, then aged 78 years, whilst riding his two wheeler Honda Activa bike bearing Registration No.KA- 19-S-6994, on 30.06.2016 at about 7.30 p.m, from Hampanakatta towards Karangalpady, near Light House Hill Masjid, was dashed down from behind by a private bus bearing Registration No.KA-20/D-2838 belonging to 1st respondent, allegedly due to rash & negligent driving and;
(b) in the meanwhile, a KSRTC bus bearing Registration No. KA-19-F-2690 came from behind and hit his bike, immediately after he was dashed down by the aforesaid private bus; he was run over along with his bike and was “dragged on a cement concrete road for a certain distance”; consequently, suffered fracture of right elbow and other grievous injuries; this bus too was driven rashly & negligently;
(c) the appellant claims to have fallen down and suffered grievous injuries because of double accidents that happened in a seriatim; his bike too was badly damaged; he was an inpatient for a period of 15 days and underwent intrusive operations; because of injuries sustained in the accident, his law practice diminished drastically since he could not put signature to the papers; earlier from this occupation, he was earning Rs.25,000/- and another sum of Rs.1,00,000/- per month as retainer fee from M/s. Mfar Developers Pvt Ltd., Bengaluru;
(d) the claimant had filed the claim petition in M.V.C.No.1284/2016 for a compensation of Rs.1,07,50,000/- (One Crore Seven Lakh & Fifty Thousand) only; the claim petition was resisted by the respondents by filing the Written Statements;
(e) from the side of the claimant, he got himself examined as PW.1; Dr.Surendra U.Kamat, the doctor who had treated him was examined as PW.2; one Mr.Ganesh Kumar Shetty was examined as PW.3; as many as 28 documents came to be marked as Exhibits P.1 to P.28 which comprised of police papers, IMV Report, medical records, Driving Licence, Income Tax Returns, Bar Council Enrolment Certificate, etc; the respondent-KSRTC for substantiating it’s stand in the Written Statement, had examined it’s driver and conductor namely Nagaraj Gaikwad as RW.1 and Manjunath Bhajantri as RW.2; from their side, three documents came to be marked as per Exhibits R.1, R.2 & R.3 which included Insurance Policy;
(f) the MACT after adverting to the pleadings of the parties and after weighing the evidentiary material on record, has made the impugned Judgment & Award dismissing the claim petition since the version of the claimant did not generate confidence; the same are put in challenge before this court.
4. Learned counsel for the claimant argues that there is abundant evidentiary material which taken at the face value, would establish the vehicular accident in question and the involvement of atleast two buses that were driven rashly and negligently; there were some minor discrepancies, is true, but that by itself would not discredit claimant’s version since the said discrepancies are attributable to the jurisdictional police, over which claimant has no say; even the inferences from the proved facts have not been drawn by the MACT; justice of the case, thus warrants indulgence of this Court.
5. Having heard the learned counsel for the appellant and having perused the appeal papers and copies of the LCR made available by the counsel for the appellant, this Court declines interference in the matter for the following reasons:
i) though almost every page of the copies of the Lower Court Records was turned by the counsel without much articulation of points, this Court having approached the matter calmly and with due seriousness, does not find anything to falter the MACT’s reasoning in the impugned Judgment & Award; the answer to issue No.1 that was “held in the affirmative” by the MACT was sought to be overblown when the reasoning part unmistakably shows that the said issue has been answered in the negative which is discussed below;
ii) the disbelief of the MACT in the version of the appellant – claimant is more than justified; the claimant is a retired railway employee; post-retirement, he has been in legal profession; he was 78 years old when he allegedly met with the accident; the contention that he and his bike were run over by two buses, and he was “dragged on a cement concrete road” for a certain distance, is bit difficult to believe going by the very nature of injuries he has sustained and the extent of damage, his bike has suffered; even according to the appellant-claimant, the doctor PW.2 has assessed 25% permanent disability to the right upper limb; thus, the 1/3rd of that to the whole body would be notionally about 8%; this itself creates a thick ring of doubt about two buses hitting the claimant; he tries to implicate yet another bus, which aspect is considered infra;
iii) in the complaint & FIR respectively at Exhibits P.1 & P.2, the complainant happens to be employer of claimant’s son to whom the claimant had spoken over the phone and accordingly, he had lodged the same; as per the complaint, the bus bearing Registration No. KA 19/ D 2838 being driven rashly & negligently had hit the claimant on the bike and consequently, the bike had hit the KSRTC bus bearing Registration No. KA 19 F 2690; thus, the claimant fell down and suffered injuries; not even a whisper is made in the complaint about the KSRTC bus hitting the bike; the version of the MACT in this regard is consistent with the over all impression a mind trained in law would gather from the records;
iv) the complaint lodged by employer of claimant’s son at Exhibit P.2 implicates the private bus bearing Registration No. KA 19/2838; even the FIR version is also same; but the claimant has altogether a different story as well, in implicating yet another private bus bearing Registration No. KA-20-D–2838; the I.O. had charge sheeted the driver of this bus and had seized it too; even in his deposition the claimant has said about this; the Charge Sheet at Exhibit P.11 contains overwritten Registration Number of this bus only; the IMV Report at Exhibit P.9 also relates to this bus itself; no explanation is offered by the claimant for proceedings against other two buses;
v) as already stated above, appellant-claimant is an advocate by occupation, allegedly earning Rs.1.25 Lakh per month; the person who lodged the complaint & FIR is none other than the employer of claimant’s son; admittedly, the claimant had spoken over phone both to his son and the complainant; it sounds bit illogical that son did not lodge the complaint but his employer did it; no explanation is offered for this glaring uncommon act, be that as it may; in any circumstance the complainant was not the eye witness at all;
vi) the version of the complainant in his cross- examination that the driver of the KSRTC bus being rash & negligent, had abruptly applied the brake and consequently, the bus tyre having burst, the same was parked on the side of the road, appears to be untrue; the IMV Reports that were marked as Exhibits in the deposition of the claimant PW.1 himself do not lend credence to this version; this deposition is inconsistent with other part of his own deposition and the version emerging from the complaint;
vii) yet another reason why the version of the claimant does not gain acceptance is – the respondents have specifically pleaded that the KSRTC bus had a technical problem, its rear wheel having been jammed, it was parked on the side of the road much earlier to the alleged accident and that it was being repaired by the mechanics; this is consistent with the version of the respondent witnesses; therefore, the contention that either the KSRTC bus had hit the bike of the claimant or that he was dragged on the concrete road, lacks credence;
viii) the respondents had specifically taken up the plea as to non-involvement of the KSRTC bus; the claimant being a lawyer by occupation, chose not to examine either the Investigating Officer or the Inspectors of Motor Vehicle who had given the IMV Reports; the version of the claimant both in claim petition and in his deposition as to both the private bus and the KSRTC bus hitting his bike is inconsistent with complainant’s version at Exhibit P.2;
ix) claimant himself has admitted in his cross- examination that he had not seen the bus coming from his hind side while he was riding his bike; whatever little support the claimant wants to derive from the Spot Mahazar at Exhibit P.4 again does not fructify since the said Mahazar is drawn by the police in terms of the complaint at Exhibit P.2 and the complainant admittedly not being an eye witness; even the claimant – PW.1 in his - 10 -
cross-examination has stated as to the existence of a footpath on the right side of the road which does not match with the Mahazar at all;
x) if the third bus too had contributed to the accident in question, as sought to be made out by the learned counsel for the appellant herein, no explanation is forthcoming as to why the claimant, himself being a leading lawyer has not structured his pleadings accordingly; and, xi) the law provides for a summary procedure for the trial of the claim petition; preponderance of probability is the applicable rule, though the Indian Evidence Act, 1872 is not stricto sensu applicable; had the MACT allowed the claim, whether this court would have sustained the challenge, is beside the point; it is also settled position of law that other view is also possible from the records, is no ground for appeal.
In the above circumstances, the appeal being devoid of merits, stands rejected.
KTY Sd/- JUDGE