IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR MFA NO. 9305 OF 2012 (MV) BETWEEN Sri Aravind Aged 52 years S/o Late Poovappa R/o ‘Prasanna Nilaya’ Vaidyanatha Nagara Pachanady Village Bondel Post Mangalore Taluk , D.K.
... Appellant (By Sri. Pundikai Ishwara Bhat - Advocate for Appellant) AND 1. M/s. Gannon Dunkerley & Co. Ltd., C/o. Jindal South West Steel Ltd., Vidyanagar, Thoranakally Bellary Reptd. by its Managing Director.
2. The New India Assurance Co. Ltd., Basheerbagh BO (610103), 202 II Floor, Moghul Court Building Basheer Bagh, Hyderabad-5 Reptd. by its Manager.
... Respondents (By Sri. R. Jaiprakash - Advocate for R-2; Vide order dated 09.06.2015, notice to R-1 is dispensed with) This MFA is filed u/s 173(1) of MV Act against the judgment and award dated 13.04.2012 passed in MVC No. 343/2010 on the file of the I-Additional Senior Civil Judge and Member, MACT, Mangalore dismissing the claim petition for compensation.
This MFA coming on for admission this day, the court delivered the following:
JUDGMENT Though this appeal is listed for admission, with the consent of learned counsel on both sides, the matter is taken up for final disposal.
2. This appeal is preferred by the appellant/claimant challenging the judgment and award dated 13.04.2012 rendered by the MACT, Mangalore in MVC No.343/2010 dismissing the claim petition by urging various grounds.
3. Heard learned counsel for the appellant and learned counsel for respondent – insurance company. Perused the impugned judgment.
4. It is evident in the claim petition that on 02.01.2010 at about 9.45 a.m. appellant/petitioner was standing near the Yeyyadi Bus stand in front of Sri Rama Mandir in Padavu village of Mangalore Taluk. At that time, a Ambassador car bearing Regn.No.KA-35/M-3253 driven by its driver at a high speed and in a rash and negligent manner came from Padavinangady side towards Yeyyadi side and dashed against the petitioner. Due to the said impact, petitioner sustained grievous injuries. The petitioner took treatment in A.J.Hospital, Mangalore and has spent a sum of Rs.75,000/- and he further requires Rs.30,000/- for future treatment. The Mangalore Rural Police registered the case bearing Crime No.2/2010 against the driver of the offending vehicle. As on the date of accident, the petitioner was aged 50 years, and was earning Rs.9,000/- p.m. working as a Mason. Inspite of better treatment, petitioner has suffered permanent disability. On these grounds, claim petition was filed before the Tribunal seeking compensation.
5. After service of notice, respondent no.1 – owner did not appear before the Court and he was placed exparte throughout the proceedings. Respondent No.2 being the insurer of the offending vehicle entered appearance through its counsel and filed written statement admitting the insurance and validity of policy in respect of the offending vehicle and denied all other petition averments and sought for dismissal of the claim petition.
6. Based upon the pleadings, the Tribunal framed issues for its consideration. In order to substantiate their case, the brother of petitioner was examined as PW.1 and Doctor was examined as PW.2 and documents as per Exs.P1 to P16 were got marked. Ex.R1 was got marked on behalf of respondent no.2. After hearing arguments advanced by learned counsel for the parties and on evaluation of oral and documentary evidence on record, the Tribunal dismissed the petition. Hence, this appeal is filed by the appellant/claimant by urging various grounds.
7. Learned counsel for the appellant contends that though the Tribunal held that accident took place due to the rash and negligent use of the Ambassador car bearing Reg.No.KA-35-M-3253 by its driver, as a result of the said accident, appellant sustained injuries but erred in dismissing the claim petition itself. It is relevant to note that appellant is deaf and dumb since his childhood and IA.No.2 was filed seeking permission of the Tribunal to appoint his brother Mr.Ramesh to depose on his behalf before the Tribunal. Though the Tribunal allowed I.A.No.2, it ought not to have rendered contrary opinion against the claimant that he is not in a position to give evidence. Further, the finding of the Tribunal that the claimant is the only competent person to depose before the Tribunal and that PW.1 cannot be a substitute to the claimant is erroneous and unsustainable. Whereas Ex.P9 – discharge summary issued by the hospital discloses that the claimant is hard of hearing and had reduced to intellect from childhood. The evidence of the Doctor corroborates with the same.
8. He further contends that due to the accident, the appellant has sustained grievous injuries and has taken treatment for the same by spending huge amount towards medical expenses. He has suffered permanent disability. But the Tribunal without considering this aspect, has dismissed the petition. On all these grounds, the appellant prays for allowing the petition.
9. Having regard to the peculiar facts and circumstances of the case, it is relevant to refer to Section 119 of the Indian Evidence Act which reads as follows:
Witness unable to communicate verbally – A witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, as by writing or by signs; but such writing must be written and the signs made in open Court, evidence so given shall be deemed to be oral evidence.
Provided that if the witness is unable to communicate verbally, the Court shall take the assistance of an interpreter or a special educator in recording the statement, and such statement shall be videographed.
10. In the instant case, the claimant- Aravind is said to be injured and also a dumb person. He is unable to communicate verbally. Therefore, the Court ought to have taken assistance of an interpreter and also special educator in recording the statement and such statement shall be videographed. The above provision has made it clear that, it is the duty cast upon the Court to take assistance of interpreter and also special educator to record the evidence of a person who is unable to speak. Ex.P10 the disability certificate issued by the Doctor indicates the petitioner has suffered disability at 15% due to the accidental injuries. The Tribunal erred in holding that the P.A.Holder cannot depose what are all the acts done by the petitioner himself which is within his personal knowledge and the petitioner has to depose before the Tribunal regarding the pain and suffering etc. which are within his personal knowledge. Therefore, it requires intervention of the impugned judgment rendered by the Tribunal in MVC No.343/2010, in terms of the scope and object of the aforesaid Section 119 of the Indian Evidence Act. Accordingly, I have to proceed to pass the following:
ORDER The appeal is hereby allowed. Consequently, the impugned judgment rendered by the Tribunal in MVC No.343/2010 is hereby set-aside. The matter is remanded back to the Tribunal to proceed afresh by giving opportunity to both the claimant and respondents in accordance with law to establish their case. The claimant to secure interpreter or a special educator to adduce the evidence before the Court for securing compensation from the respondent-insurer.
The matter is of the year 2010. Therefore, the Tribunal is directed to dispose of the matter within a period of six months from the date of receipt of copy of this judgment.
Sd/- JUDGE DKB