New India Assurance Co. Ltd., Bangalore vs N.C. Laxmappa

B.S. Patil, J.—M.F.A. No. 2543/2009 is filed by New India Assurance Company Limited challenging the judgment and award passed bythe Motor Accident Claims Tribunal, Chitradurga, awarding compensation in a sum of Rs. 64,320/- to the injured claimant - N.C. Laxmappa for the fractural injury suffered by him in an accident that occurred on 01-01-2006.

M.F.A. No. 2543/2009 is filed by the claimant - N.C. Laxmappa seeking enhancement of compensation.

Since both these appeals arise out of the common judgment and award passed in M.V.C. No. 745.2006, they are clubbed, heard together and are disposed of by this common judgment.

The Tribunal has found that accident occurned due to the actionable negligence on the part of the driver of the lorry bearing No. KA-06-A-7272 which came from the hind side of the tractor trailer bearing No. KA-17/7043-44 and dashed against it, thereby resulting in the tractor trailer falling down along with a load of sunflower bags, resulting in injuries to the persons who were proceeding in the said tractor trailer. The Tribunal has persuaded itself to hold that driver of the tractor trailer had given room to the accident by permitting the claimant to sit on the load in the trailer in violation of the permit conditions, and therefore there was negligence to an extent of 20% on the part of the driver of the tractor trailer and consequently the lorry owner, its driver and the insurer were liable to pay compensation only to an extent of 80% from out of the total compensation awarded.

The principal contention of the learned Counsel appearing for the Insurance Company in the present appeal is with regard to the findings of the Tribunal regarding involvement of the lorry and the alleged actionable negligence on the part of the driver of the lorry in causing the accident. Learned Counsel strongly urges that admittedly, none of the claimants including the claimant in the present case were able to identify the lorry or the driver of the lorry which was allegedly involved in the accident; the complaint given to the police on the date of accident by one of the occupants by name Haleshi did not mention the details of the lorry involved; that the deposition of the claimant - Laxmappa in C.C. No. 818/2006 produced and marked as Ex. R07 made it clear that he could not identify the lorry or the driver at the time when the accident took place; the inquest panchanama does not disclose that the lorry was in any manner identified. It is also urged by him that in the criminal case, the driver of the lorry has been acquitted and the said driver has been examined before the Tribunal by the Insurance Company as RW- 3 and in his statement, he has categorically stated that the lorry driven by him was not at all involved in the accident. He also brings to the notice of the court the fact that in the report submit by the Motor Vehicles Inspector produced as Ex.P-3, there is no mention with regard to the involvement of the lorry and the damage to the hind side of the tractor trailer.

Per contra, learned Counsel appearing for the claimant refers to Ex. P-2 - spot mahazar and the fact that the owner of the lorry did not challenge the charge-sheet and also takes me through the evidence, particularly the cross-examination of PW-1 - claimant by the learned Counsel appearing for the owner of the lorry, to contend that the cumulative effect of the material on record viewed in the context of the evidence of the claimant, established involvement of the lorry. Learned Counsel for the claimant referring to the grounds urged in M.F.A. No. 3934/2009 filed by the claimant seeking enhancement of compensation points out that compensation awarded towards different heads is on the lower side, and therefore, the appeal filed by the claimant seeking enhancement deserved to be allowed, whereas the appeal filed by the Insurance Company questioning its liability deserved to be dismissed.

Having regard to the respective contentions urged, the twin points that arise for consideration are,

(i) Whether the findings recorded by the Tribunal regarding involvement of the lorry in the accident resulting in injuries to the claimant suffers from any illegality or perversity?

(ii) Whether the claimant is entitled for enhancement of compensation having regard to the facts and circumstances of the case and the nature of injuries suffered?

Point No. 1:� As can be seen from the complaint given by Haleshi who was one of the occupants of the tractor trailer on the very day of accident, the accident occurred at 2.00 a.m. on 01-01-2006 on NH-4 near Kaikunte Gate between Davangere and Chitradurga. It is true the claimant in the instant case, or for that matter, the claimants in any of the connected cases have not identified the lorry in question or the driver who was driving the lorry because the accident took place at 2.00 a.m. However, the complaint specifically mentioned that accident occurred on account of negligent driving of the lorry by its driver which came from the hind side and dashed against the tractor and trailer, as a result of which the tractor fell up side down towards the left side of the road resulting in injuries to the occupants. It cannot be forgotten that in a hit and run case that too during night hours on the National Highway, it would be too much to expect the occupants to identify the driver and the vehicle number involved in the accident.

Based on the complaint given on the same day, the police have set the law in motion and have, after conducting investigation filed charge-sheet implicating the lorry involved in the accident and its driver. Before the Tribunal, owner of the lorry was impleaded as party respondent. He filed his objections denying involvement of the lorry. The claimant - N.C. Laxmappa was examined as PW-1. In his examination-in-chief, he has stated that the very lorry bearing No. KA-06-A-7272 driven in a rash and negligent manner by its driver dashed against the tractor and its trailer, resulting in the accident. The owner of the lorry through his advocate has cross-examined this witness. In the cross-examination, he specifically suggests that due to the negligence on the part of the drivers of both the vehicles, accident occurred. He does not stop at that. He further suggests to PW-1 that the accident did not occur on account of the driver of the lorry, but it occurred due to the fault of the driver of the tractor and trailer.

It thus transpires that the claimant having learnt about involvement of the lorry, after investigation was conducted by the police, has specifically stated in the examination-in-chief filed by way of affidavit that it was the very lorry which was involved in the accident and the accident occurred on account of the negligence of the driver of the lorry. This assertion made in the examination-in-chief by way of affidavit has not been challenged by the owner of the lorry, instead he has made suggestions to the claimant stating that accident occurred because of the negligence on the part of the drivers of both the vehicles and that the driver of the lorry was not negligent in causing the accident. Learned Counsel for the Insurance Company submits that this suggestion made by the advocate for the owner of the vehicle should not be viewed in an isolated way to record a finding that it was the lorry which was involved in the accident. According to him, it should be viewed in the context of the entire evidence on record including the deposition of the claimant - Laxmappa in the course of criminal proceedings produced at Ex. R-7.

In Ex.R-7, Laxmappa has stated that he was not able to identify the lorry or the driver. Even before the Claims Tribunal also, it is not his case that it is he who identified the lorry or the driver. Therefore, there is no such inconsistency in his version before the criminal court and the Claims Tribunal. Based on the investigation report and the charge-sheet filed, he has stated that it was the lorry in question which was involved in the accident and the driver of the lorry was negligent. The owner having not chosen to examine himself has cross-examined the claimant and in the cross-examination, he has not challenged he version of the claimant that the lorry was involved in the accident. On the other hand, the suggestion is that it was the drivers of both the vehicles i.e, the lorry and the tractor who were guilty of negligence. Hence, I am unable to accept the contention of the learned counsel for the appellant-Insurance Company that the suggestion made to the claimant should be ignored.

Counsel for the claimant is right and justified in inviting the attention of the Court to Ex. P-2 - spot mahazar where it is specifically stated that broken glasses of a lorry were found on the spot and the same were recovered. Mere fact that in the inquest panchanama, the lorry and the driver were not identified or that the report of the Motor Vehicles Inspector did not mention anything with regard to the involvement of any lorry in the accident or that there no materials to show that hind side of the tractor was damaged; that only left side of the tractor trailer was damaged, was sufficient to infer that lorry was not involved, cannot be accepted. The Tribunal having regard to the fact that it was a hit and run case, has examined the materials placed before it, to come to the conclusion that it was highly probable that the lorry in question was involved in the accident. Such finding recorded in the light of the discussion made above, cannot be characterised as perverse or illegal, so as to warrant interference in exercise of the appellate powers. Therefore, point No. 1 raised is answered against the appellant-Insurance Company.

Point No. 2:� As regards the quantum of compensation awarded, on careful perusal of the evidence of the claimant, the doctor and the medical records, I find that the nature of injury suffered as spoken to before the Tribunal, are fracture of lower end of the radius. The Tribunal has come to the conclusion that there was no material to show that claimant was an inpatient for 15 days. It has held that he was inpatient only for two days at District Hospital, Chitradurga. The Tribunal has rightly held that there was no material produced to accept the contention that there was 30 to 35% disability to the left upper limb. However, taking note of all the materials on record, the Tribunal has rightly assessed the disability at 8% and has awarded compensation under different heads as under :�

(i)

Pain & sufferings

Rs. 17,000/-

(ii)

Medical expenses

Rs. 3,000/-

(iii)

Attendant charges & loss of income

Rs. 2,000/-

(iv)

Diet of petitioner

Rs. 2,000/-

(v)

8% disability

Rs. 40,320/-

Total

Rs. 64,320/-

The Tribunal has also rightly come to the conclusion that as the injured claimant was travelling in the tractor trailer sitting on the top of sunflower bags and the driver of the trailer had permitted to undertake such a risk, 20% of negligence was contributed by the driver of the tractor trailer and the claimant. Therefore, I do not find any illegality in either the assessment of the compensation made or the contributory negligence fastend on the claimant and the driver of the tractor - trailer.

In the result, both the appeals are dismissed. Parties shall bear their respective costs.