IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE MOHAMMAD NAWAZ MISCELLANEOUS FIRST APPEAL NO.2504/2014 (MV) C/W.
MISCELLANEOUS FIRST APPEAL NO.2503/2014 (MV) MISCELLANEOUS FIRST APPEAL NO.2504/2014 BETWEEN R K SANTHOSH KUMAR S/O R.M. KRISHNAPPA AGED ABOUT 28 YEARS R/AT RAJAGATTA VILLAGE KASABA HOBLI DODDABALLAPURA TALUK BANGALORE RURAL DISTRICT.
... APPELLANT (BY SMT. BHUSHANI KUMAR, ADVOCATE) AND 1. THE MANAGER, BAJAJ ALLIANZ GENERAL INSURANCE CO LTD GROUND FLOOR NO.31 TBR TOWER, 1ST CROSS NEW MISSION ROAD NEAR BANGALORE STOCK EXCHANGE BANGALORE-560027 2. MR SHAHABUDDIN S/O SHRI HANSU KHAN UNTAKA VILLAGE TEN NUH, MEWAT HARAYANA-132 101 ... RESPONDENTS (BY SRI O. MAHESH, ADVOCATE FOR R1;
R2-NOTICE DISPENSED WITH VIDE ORDER DTD:05.12.2017) THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:25.06.2013 PASSED IN MVC NO.971/2011 ON THE FILE OF THE PRL. MACT, CHIEF JUDGE, COURT OF SMALL CAUSES, BANGALORE, PRAYING TO MODIFY THE AWARD BY ALLOWING THE CLAIM PETITION.
MISCELLANEOUS FIRST APPEAL NO.2503/2014 BETWEEN R S MAHESH S/O SHIVAKUMAR AGED ABOUT 38 YEARS R/AT RAJAGATTA VILLAGE AND POST DODDABALLAPURA TALUK BANGALORE RURAL DISTRICT-561 203 ... APPELLANT (BY SMT. BHUSHANI KUMAR, ADVOCATE) AND 1. THE MANAGER, BAJAJ ALLIANZ GENERAL INSURANCE CO., LTD., GROUND FLOOR NO.31 TBR TOWER, 1ST CROSS NEW MISSION ROAD NEAR BANGALORE STOCK EXCHANGE BANGALORE-560027 2. MR. SHAHABUDDIN S/O SHRI HANSU KHAN UNTAKA VILLAGE TEN NUH, MEWAT HARAYANA-122 107 ... RESPONDENTS (BY SRI O. MAHESH, ADVOCATE FOR R1; R2-NOTICE DISPENSED WITH VIDE ORDER DTD:05.12.2017 PASSED IN MFA No.2504/2014) THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:25.06.2013 PASSED IN MVC NO.972/2011 ON THE FILE OF THE CHIEF JUDGE, COURT OF SMALL CAUSES, BANGALORE, PRAYING TO MODIFY THE AWARD BY ALLOWING THE CLAIM PETITION.
THESE APPEALS COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
J U D G M E N T MFA No.2504/2014 is preferred by the injured/claimant in MVC No.971/2011 and MFA No.2503/2014 is preferred by the injured claimant in MVC No.972/2011.
2. The above appeals are filed against the judgment and award dated 25.06.2013 on the file of the MACT and Chief Judge, Court of Small Causes at Bengaluru, wherein the respective claim petitions came to be dismissed.
3. The case of the appellants/claimants is that on 19.01.2011 at about 9.30 p.m., the petitioner in MVC No.971/2011 was riding motorcycle bearing registration No.KA-43/H-1835 near Rajagatta Lake on Doddaballapura-Chikkaballapura Road in order to go to his house, at that time a Lorry bearing registration No.HR-55/G-9379 driven by its driver came in a rash and negligent manner from Nandi Cross Road towards Doddaballapura and one rod of the Lorry hit the petitioner, as a result of which he fell down along with his motorcycle and sustained fracture of right tibia, fibula, mid shaft, fracture of 1st metacarpal bone and injuries to other parts of the body. Lorry proceeded further to a distance of two furlong and hit against another motorcycle bearing No.KA-43/K-2665, on account of which the rider and the pillion rider of the said motorcycle also fell down and sustained injuries. The injured were taken to Government Hospital Doddaballapura, wherein, first aid treatment was given to them, then they were taken to Janatha Nursing Home, wherein they were treated as inpatients.
4. The petitioners in MVC No.971/2011 and MVC No.972/2011 filed respective claim petitions claiming Rs.3,00,000/- each for the injuries sustained by them. The Tribunal by its common judgment and award dated 25.06.2013 dismissed the respective petitions.
5. The learned counsel for the appellants would contend that though the Tribunal has come to the conclusion that the claimants have sustained injuries in the road traffic accident which occurred on 19.01.2011 involving the Lorry bearing registration No.HR-55/G- 9379 on account of rash and negligent driving by its driver and the said vehicle is insured with the respondent No.1 herein, however, the Tribunal grossly erred in dismissing the petitions only on the ground that the Doctors who treated the injured were not examined. It is her further contention that the claimants have produced all necessary documents with regard to the injuries sustained by them and therefore, the Tribunal was not justified in rejecting their claims.
6. Before the Tribunal the three injured who had filed their respective claim petitions got examined themselves as PWs.1 to 3 and they got marked Exs.P1 to P11 and on behalf of the respondents no evidence was led. The Tribunal framed the following issues.
1. Whether the petitioner proves that he sustained injuries in a motor vehicle accident that occurred on 19.01.2011 at about 09.30 p.m., near Rajagatta Lake, Doddaballapura- Chikkaballapura Road, Kasaba Hobli, Doddaballapura Taluk on account of rash and negligent driving of the lorry bearing registration No.HR-55-G-9379 by its driver”
2. Whether the petitioner is entitled for compensation? If so, how much and from whom?
3. What order?
7. The issue No.1 was answered in the affirmative and it was held that the accident occurred solely due to rash and negligent driving of the Lorry by its driver.
8. However, the Tribunal though took notice of the injuries sustained by the injured-claimants, has held that in the absence of proof of medical records and in the absence of examination of author of those documents who issued it and also in the absence of production of x-rays to prove fracture injuries by examining the Radiologist, compensation cannot be awarded. The Tribunal after observing that the authorized Doctor was not examined and the claimants have not produced x-rays for having suffered grievous injuries by them and also that they have not examined the Doctor who gave treatment to them etc., rejected their claim petitions.
9. Admittedly the Doctors who have treated the injured are not examined. There is also nothing on record to show that what is the percentage of disability suffered by the injured, if at all they have suffered any disability. To award just and reasonable compensation in a case of this nature, the examination of the Doctors who treated the injured is necessary. At the same time the injured-claimants cannot be deprived of compensation which could be awarded in their favour for the injuries sustained by them in the road traffic accident. In that view of the matter, I deem it proper to give an opportunity to the appellants to examine the Doctors who treated them for the injuries they suffered in the road traffic accident. It is also noticed that PW3 i.e. petitioner in MVC No.972/2011 has not subjected himself for cross-examination. Hence, I pass the following:
ORDER (i) The MFA Nos.2504 and 2503 of 2014 are allowed.
(ii) The judgment and award dtd. 25.06.2013 passed in MVC Nos. 971 and 972/2012 on the file of the Member, Principal Motor Accident Claims Tribunal and Chief Judge, Court of Small Causes at Bangalore, is set aside. Matter is remitted back to the Tribunal for giving an opportunity to the claimants to adduce additional evidence in accordance with law, if they are so advised.
(iii) The parties are directed to appear before the Tribunal on 03.04.2019.
(iv) The evidence already on record shall be intact.
(v) The Tribunal is directed to expedite the matter.
SBS* Sd/- JUDGE