IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR. JUSTICE R. DEVDAS MISCELLANEOUS FIRST APPEAL NO.10477 OF 2011 (MV) BETWEEN:
SRI D. KRISHNA REDDY AGED ABOUT 51 YEARS S/O. SRI CHENGALARAYA REDDY R/AT NO.46, KRISHNA TEMPLE ROAD, DODDABOMASANDRA, VIDYARANYAPURA, BANGALORE - 560 097. ... APPELLANT (BY SRI R. KRISHNA REDDY, ADVOCATE) AND:
1. MADAV DAS A.
AGED ABOUT 42 YEARS R/AT NO.56, 2ND CROSS 5TH MAIN, SRI KRISHNA LAYOUT DEVARACHIKKANAHALLI BANGALORE - 560 076.
2. THE ORIENTAL INSURANCE CO., LTD., D.O.III, NO.48, CHURCH STREET BANGALORE - 560 001 REP. BY ITS MANAGER ... RESPONDENTS (BY SRI C. SHANKAR REDDY, ADVOCATE FOR R2; R1 IS SERVED) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, 1988 PRAYING TO CALL FOR THE RECORDS IN MVC No.582/2009 ON THE FILE OF MOTOR ACCIDENT CLAIMS TRIBUNAL, BANGALORE, PERUSE THE SAME AND MODIFY THE JUDGMENT AND AWARD DATED 19.04.2011 ALLOW THE CLAIM PETITION WITH COSTS THROUGHOUT AND PASS SUCH OTHER ORDERS AS DEEMED FIT IN THE CIRCUMSTANCES OF THE CASE, IN THE INTEREST OF JUSTICE AND EQUIRY.
THIS MISCELLANEOUS FIRST APEPAL COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T R. DEVDAS J., (ORAL):
The appellant was the claimant before the Motor Accident Claims Tribunal at Bengaluru in MVC No.582/2009. The tribunal has rejected the claim petition made by the appellant herein and therefore, the appellant has appealed before this Court assailing the award passed by the tribunal.
2. Learned counsel for the appellant submits that the tribunal could not have rejected the claim petition without framing proper issues and assigning the reason based only on two documents. It is also contended by the learned counsel for the appellant that the tribunal was duty bound to answer all the issues. Since the other issues were not decided by the tribunal, the matter needs to be remanded back to the tribunal not only for answering all other issues, but also affording another opportunity to the claimant to prove that he sustained injuries due to the accident involving a goods Auto-rickshaw bearing registration No.KA-05-D-487.
3. The case of the appellant before the tribunal was that on 01.07.2008, the appellant was proceeding on two wheeler i.e., Honda Activa Scooter bearing registration No.KA-04-ET-4669 slowly and cautiously, near Siddi Vinayaka Layout at about 9.30 a.m., when the driver of the goods Auto-rickshaw bearing registration No.KA-05-D-487 drove the vehicle in a rash and negligent manner and dashed against the scooter. The appellant fell down due to the impact and sustained grievous injuries. He was admitted to Mallige Medical Center, Bangalore. The appellant had lodged a complaint on the next day before the jurisdictional Police Station and the Police have registered the FIR in Crime No.85/2008. The other aspect regarding the employment and earning capacity of the appellant need not be gone into, since the claim petition has been rejected on the ground that the goods Auto-rickshaw bearing registration No.KA-05-D- 487 was not involved in the accident.
4. The tribunal has relied on the wound certificate marked as Ex.P7 and the discharge summary marked as Ex.P13, wherein it has been stated that the injured suffered the injuries on account of "self fall". The Doctor - PW-2 had admitted in the cross-examination that the appellant herein suffered the injuries due to "self fall" from the scooter. On the other hand, learned counsel for the appellant submits that no opportunity was afforded to the appellant herein to cross-examine the Doctor. Moreover, it is submitted that it is not the Doctor to made the entry in the wound certificate and discharge summary, while it was some other person sitting on the front desk of the hospital, who might have made that entry. Therefore, the learned counsel for the appellant made an earnest request to this Court to remand the matter back to the tribunal to afford another opportunity to the appellant herein to establish his case.
5. On hearing the learned counsel on both the sides, on perusing the reasoning in the award and the Lower Court Records, this Court is of the opinion that no purpose will be served if the matter is remanded back to the tribunal. The Doctor having entered the witness box on behalf of the claimant has spoken about the entry made in the wound certificate and discharge summary. Moreover, it is also admitted by the Doctor - PW-2 that the reasons for not informing the Police about the accident was because the injured himself had stated that he sustained injuries due to self fall from the scooter. This shows that the Doctor was examined on all these aspects and he has spoken about the fact that how the entry came to be made in the wound certificate and discharge summary. The appellant had all the opportunity to request the tribunal to allow him to cross- examine the Doctor after the admission made by the Doctor was against the interest of the appellant. In law, there is such a provision which would enable the person to request the Court to cross-examine his own witness, if the witness turned hostile. That opportunity has not been availed by the appellant. This Court is of the opinion that no purpose will be served, if the matter is remanded back to the tribunal.
The contention of the learned counsel for the appellant that all the issues have to be answered, has no substance.
In the light of the above, this Court finds no fault with the Judgment and Award of the tribunal and therefore, the appeal stands dismissed.
SD/- JUDGE KLV