E.C. Ajjappa @ AJJAIAH & Others vs E. Nagaraj & Others

H.P. Sandesh, J

This appeal is filed by the claimant challenging the judgment and award dated 23.08.2012 passed in M.V.C.No.130/2011 on the file of the II Additional Senior Civil Judge and Additional MACT-VI, Chitradurga ('the Tribunal' for short) dismissing the claim petition answering issue No.1 as negative.

The parties are referred to as per their original rankings before the Tribunal to avoid the confusion and for the convenience of the Court.

The factual matrix of the case is that the injured filed the claim petition under Section 166 of the Motor Vehicles Act, 1988 ('MV Act' for short) claiming compensation of Rs.10,00,000/- contending that when the petitioner was going on the left side of the road towards his land near Vrushabendrappa's kana at Chikkalagatta Village, all of a sudden the driver of a tractor-trailer bearing registration No.KA-16-TA- 1884-1885 drove the same in a rash and negligent manner with high speed and dashed against the petitioner. As a result, he fell down and sustained injuries.

Immediately, he was shifted to Bapuju Hospital, Davanagere wherein he took treatment as an inpatient for 15 days and further he took treatment at Kasturba Hospital for 20 days. He was subjected to surgery and on account of the injuries, he has suffered permanent disability.

The claim petition was opposed by respondent Nos.1 and 2 by filing written statement contending that the said accident was occurred due to the negligence act of the petitioner himself. He has colluded with the police officers and created the documents and filed a false claim petition. However, admitted that the policy was in force. Respondent No.2 in its objection statement contended that the petitioner was traveling in the tractor-trailer and fell down from the said vehicle. Since no person is permitted to travel in this vehicle and the coverage is only for driver, he is not liable to pay the compensation to the petitioner.

The Tribunal while answering issue No.1 comes to the conclusion that the documents Exs.R.1 and 2 i.e., admission intimation and MLC register clearly discloses the fact that the petitioner sustained injuries due to fall from the tractor. The documents Exs.R.1 and 2 have been proved by examining R.W.2, author of the document and it is clear that the petitioner had sustained injuries due to fall from the tractor. It is also observed that admittedly there is a delay of three days in lodging the complaint. The Tribunal also observed that immediately after the accident, the injured was taken to the hospital and the claimant has proved the fact that he was proceeding in the road and he has sustained the injuries. Hence, answered issue No.1 as negative and dismissed the claim petition.

Being aggrieved by the judgment and award of the Tribunal, the claimant has filed this appeal before this Court.

The learned counsel for the appellant would vehemently contend that it is not in dispute that the accident was occurred and the Tribunal also comes to the conclusion that the petitioner fell from the tractor. When such being the case, the Tribunal ought not to have answered issue No.1 as negative in coming to the conclusion that the accident has not been proved. The learned counsel would contend that in Ex.P.10 discharge card, it is clearly mentioned that the injured was admitted to hospital on 12.10.2010 with history of road traffic accident and it is also stated that the petitioner was hit by the tractor. But the Tribunal has not considered this document and passed the judgment and award relying upon the documents Exs.R1 and 2 and the same is bad in law. Hence, it requires interference of this Court.

The learned counsel for the appellant in support of his argument he vehemently contended that the Evidence Act is not strictly applicable in case of claim petition filed before the Tribunal. In support of his contention he relied upon the judgment of the Apex Court in the case of SUNITA AND OTHERS v. RAJASTHAN STATE ROAD TRANSPORT CORPORATION AND OT HreEpRorSted in (2020) 13 SCC 486, wherein it is held that in terms of Section 166 of the MV Act, 1988, Tribunal stricto sensu is not bound by pleadings of parties, and its function is to determine amount of fair compensation. Claimants are merely to establish their case on touchstone of preponderance of probability, and standard of proof beyond reasonable doubt cannot be applied by Tribunal dealing with motor accident cases. The Apex Court also held that lower standard of proof, of preponderance of probabilities applicable in tort matters, which include accident claim cases under MV Act. The only defence raised by the respondent was bald assertion that FIR was based on wrong facts and was filed in connivance between appellant complainants and police, no evidence was produced by respondents before Tribunal to prove this point. Even if final outcome of criminal proceedings against respondent No.2 is unknown, same would make no difference at least for deciding claim petition under MV Act. Nature of proof required to establish culpability under criminal law is far higher than standard required under Tort Law to create liability.

Per contra, the learned counsel for the respondent Insurance Company would contend that Regulation 28 of the Rules of the Road Regulations, 1989 is clear that a driver when driving a tractor shall not carry or allow any person to be carried on tractor. The driver of goods carriage shall not carry in the driver's cabin more number of persons than that is mentioned in the registration certification and shall not carry passengers for hire or reward.

The learned counsel also relied upon the Full Bench judgment of this Court in the case of GADHILINGAPPA AND ANOTHER v. K.

GULEPPA AND OTHER Sreported in 2021 SCC Online KAR 12137, wherein it is held that it does not cover the risk of a person who is carried in the mud guard of the tractor and the Insurance Company is not liable to pay the compensation. The learned counsel would contend that the pleadings of the claimant is very clear that he was proceeding on the road and the tractor hit the appellant/claimant and the Insurance Company was able to prove the fact that he fell from the tractor. The Tribunal relying upon Exs.R.1 and 2 comes to the conclusion that the claimant has not proved the accident in answering issue No.1. The learned counsel would contend that it is nothing but fraud on the Insurance Company.

The learned counsel also relied upon the judgment of the Apex Court in the case of NORTH WEST KARNATAKA ROAD TRANSPORT CORPORATION v. GOURABAI AND OTHERS reported in (2009) 15 SCC 165, wherein the Apex Court observed that Ex.R1 establishes that the injuries sustained were not on account of any vehicular accident.

Having heard the arguments of the learned counsel for the appellant and the learned counsel for the respondents and also analyzing the principles laid down in the judgments referred supra and also on perusal of the records, the point that arise for the consideration of this Court is:

(i) Whether the Tribunal has committed an error in dismissing the claim petition in answering issue No.1 as negative?

Having considered the pleadings, no doubt the claimant in the claim petition has contended that he was proceeding as a pedestrian and the tractor hit him. It is the specific contention of the Insurance Company that the injured fell from the tractor. Having perused the defence, it is not in dispute that the injured had sustained injuries on account of the accident, but the claimant twisted the facts of the case while narrating the manner of the accident. The Insurance Company also not disputed the accident and took the defence that the accident was on account of fall from the tractor. The Tribunal failed to consider the specific defence raised by the Insurance Company and the Insurance Company does not dispute the fact of the accident and relies upon the document Exs.R.1 and 2. Exs.R1 and 2 clearly discloses that the history was given that it was fall from tractor. The claimant has relied upon Ex.P.10 discharge summary wherein history is mentioned as road traffic accident as contended by the learned counsel for the appellant.

The judgment of the Apex Court in the case of Gourabai (supra) relied upon by the Insurance Company is not applicable to the facts of the case on hand. In the said reported case the injured had suffered injures in the house itself and the injured did not sustain any injury in any accident involving the bus of the Corporation. The deceased had sustained head injury due to fall from the height of 8 to 10 feet of his own house. But in the case on hand, the factual aspects is different and admittedly the injured has suffered the injuries on account of involvement of the vehicle in the accident.

Though it is contended that he was hit by tractor, the Tribunal relying upon the documents of Exs.R.1 and 2 comes to the conclusion that he fell from the tractor. When such being the case, the Tribunal ought not to have answered issue No.1 as negative. The issue is whether the petitioner had sustained injuries in the alleged road traffic accident on 12.10.2010 at about 1 p.m. near Vrushabendrappa's kana, at Chikkalagatta Village, due to rash and negligent driving of the driver of the tractor-trailer bearing registration No.KA-16-TA-1884-1885. I have already pointed out that the accident is not in dispute and place of accident is not in dispute, but facts of the case are twisted. When he had sustained injuries on account of the accident and when the Insurance Company took the defence that he fell from the tractor which was involved in the accident, the Tribunal ought not to have answered issue No.1 as negative and ought to have answered issue No.1 as affirmative as the accident is not disputed and only manner of the accident has been disputed. Hence, it requires interference of this Court.

No doubt, the Insurance Company has relied upon the Full Bench decision of this Court and also relied upon Regulation 28 of the Rules of the Road Regulations, 1989 and these are the aspects which have to be considered while considering the matter on merits with regard to fastening of the liability and the same cannot be considered while considering issue No.1. It is open to the Insurance Company to urge the said ground before the Tribunal while considering the matter on merits. I have already pointed out that the Apex Court in the judgment in the case of Sunita (supra), has categorically held that in terms of Section 166 of the MV Act, Tribunal stricto sensu is not bound by pleadings of parties, and its function is to determine amount of fair compensation. Claimants are merely to establish their case on touchstone of preponderance of probability, and standard of proof beyond reasonable doubt cannot be applied by Tribunal dealing with motor accident cases. The Apex Court considering Section 166 and 173 of the MV Act held that lower standard of proof, of preponderance of probabilities applicable in tort matters, which include accident claim cases under MV Act.

Having considered the principles laid down in the judgment referred supra and also the factual aspects of the case, the Tribunal has committed an error in answering issue No.1 as negative and failed to take note that issue No.1 is with regard to the accident. I have already pointed out that the accident is not disputed and only manner of accident is disputed. When such being the facts and circumstances of the case, the very impugned order is liable to be set aside. The matter requires to be remanded to the Tribunal to consider the other issues i.e., issue No.2 regarding the entitlement of compensation and what should be the quantum and the same is payable from whom.

In view of the discussions made above, I pass the following:

ORDER

(i) The appeal is allowed.

(ii) The impugned judgment and award of the Tribunal dated 23.08.2012 passed in M.V.C.No.130/2011 is set aside.

(iii) The matter is remanded to the Tribunal to consider the matter afresh in view of the observations made by this Court.

(iv) This is the matter of the year 2011 and hence the Tribunal is directed to dispose of the matter within six months from today.

(v) The respective learned counsel are directed to assist the Tribunal to dispose of the matter within the stipulated time.

(vi) The parties are directed to appear before the Tribunal on 28.06.2021 without expecting any notice.

(vii) The Registry is directed to transmit the records to the concerned Tribunal, forthwith.