Thimmaiah S/o Sugappa vs The Divisional Manager & Anr

In this appeal, the appellant/claimant has laid challenge to the Judgment and Award dated 19.02.2010 rendered by MACT, Bengaluru in MVC

No. 8075/2008 whereby the claim petition has been dismissed with costs.

The case of the appellant/claimant is that on 24.09.2008 at about 11.00 pm, when he was driving his motor bike bearing Reg.No.KA-04-EP-

3951 on NH-4 Road, near T-Beguru, another motor cycle bearing Reg.No.KA-02-EX-635 came with high speed and hit his bike from behind.

Resultantly, the claimant fell down and sustained injuries. He was treated at Harsha Hospital, Nelamangala, Bengaluru on 24.09.2008 and

25.09.2008. Thereafter for further treatment, he was taken to Mallige Medical Centre, Bangaluru where he underwent treatment during the period

between 25.09.2008 to 30.09.2008 and he was discharged on 30.09.2008 from the hospital.

The appellant filed a claim petition in MVC No. 8075/2008 seeking compensation of Rs.2,00,000/-. After notice the respondents entered

appearance through their counsel and filed their written statement resisting the claim. The MACT framed the usual issues as under:

Whether the petitioner prove that on 24/9/2008 at about 11.00 p.m. T. Begur, NH-4, Bengaluru Rural, he met with an accident

and sustained injuries on account of rash and negligent riding of motor cycle bearing No.KA-02-EX-635 by its rider?

Whether the 1st respondent proves that driver of the offending vehicle did not have valid and effective driving licence to drive the

said vehicle?

Whether the petitioner is entitled for compensation? If so, how much and from whom?

What order?

To prove his case, the appellant examined himself as PW1 and got marked 11 documents as Ex.P1 to Ex.P11. From the side of respondents,

no evidence was led. The Tribunal after considering the matter, has dismissed the claim petition with costs, disbelieving the version of the claimant.

The counsel for the appellant submits that the medical records, namely, the discharge summary, which is marked as Ex.P7, speaks of the

vehicular accident, the nature of injuries sustained and treatment taken by him. The appellant/claimant himself got examined as PW1, describing the

incident. In his cross examination, nothing worth which is elicited to disbelieve the version of the claimant as to the incident and involvement of

vehicle in question. (5A). Added to this, the learned counsel submits that one Mr.Thimmaiah, who had carried the injured claimant to the hospital

when he was in unconscious stage, had lodged the FIR on 07.10.2008; the jurisdictional police have registered the case in Cr.No.933/2008

against the driver, who drove the said vehicle in a rash and negligent manner; the police have investigated into the matter and have filed a Final

Report, after examining the witness; the statement of Thimmaiah was recorded under Sec. 161 of Cr.P.C. wherein he has deposed with regard to

the injury sustained by the Claimant and the particulars of the vehicles involved in the accident. Thus he states that the accident and its

consequences have been proved by preponderance of probability. The entire charge sheet is marked in evidence.

However, the counsel for the respondents vehemently contends that the version of the PW1 as to the involvement of the vehicle concerned does

not generate confidence in as much as due to the injury suffered in the accident PW1 had already lost consciousness and he was carried by one

Thimmaiah to the hospital.

He further contends that PW1 has not disclosed the source as to how he came to know the involvement of this particular vehicle. He further

contends that said Thimmaiah,eye-witness''s version is not available by way of deposition before the Court since he was not examined as a witness

before the MACT. Therefore, he submits that his statement before the police under Section 161 of Cr.P.C. cannot be acted upon.

(6A). In answer to the above contentions of the learned counsel for the respondent, it is submitted that, there is sufficient material, which

probablizes the event of accident resulting into the injuries followed by hospitalization. Although the eye witness-Thimmaiah has not been examined

as an eye witness, still his statement made to the police under Section 161 of Cr.P.C. has some significance since charge sheet itself has been

marked as Ex.P5, and the same constitutes the legal evidence, being a document generated in the ordinary course of discharge of official duty.

The Hon''ble Apex Court in its decision reported in (2013) 11 Supreme Court cases 507 between Gurdeep Singh Vs. Bhim Singh and Others

has ruled that:

It is a matter of common knowledge that in motor road accident''s claim cases, it is very difficult to get witnesses. The eye witnesses

are also not readily available. Even if available, they are not easily ready and willing to come and depose in Court of law for many

reasons. Thus, we have to go by the oath of the claimant only. From the materials available on record, it is established and crystal

clear that the appellant had definitely met with the accident. He was also traveling in the bus, operated by M/s.Kataria Tours and

Travelers. It is also proved that the accident was between two buses on the intervening night of 28.09.1994.

The learned counsel for the respondent- Insurance Company cited a decision of this Court i.e., Bajaj Allianz General Insurance Company

Limited Vs. B.C.Kumar and Another (ILR 2009 KAR 2921) in support of the proposition that the version emerging from the statement of a

person recorded under Section 161 of Cr.P.C. by the police cannot be taken to be a legal evidence in the absence of the said person entering the

witness box and therefore Thimmaiah''s version should not be acted upon. I have carefully perused the said judgment and I could not find any such

proposition emerging from it as a precedent. After all, what weight is to be attached to the police papers calculatively marked as a charge sheet is a

matter left to the wisdom of the Trial Court. There is no reason why I should interfere with the discretionary wisdom exercised by the M.A.C.T.,

which ordinarily has abundant experience in such matters.

I have perused the decision cited by the learned counsel for respondent and the facts of that case were totally different from those in this case.

Therefore, I hold that the accident took place on the said date, time and place and that the claimant was injured due to rash and negligent of driving

of vehicle concerned.

Now coming to the medical treatment and the expenditure incurred by the claimant, the appellant has produced Ex.P7-Discharge Summary

issued by Mallige Medical Centre, which speaks of the material particulars of injured and treatment for five days as an inpatient. Ex.P10 are the

medical bills, which altogether come to Rs.52,598/- only. There is absolutely no reason as to why these medical bills should not be taken at their

face value. Therefore, I hold that the appellant/claimant has incurred expenditure of Rs.52,598/- towards medical expenditure.

The claim of the appellant for compensation under the head ""Loss of Earning Capacity and Loss of Future Income etc."", is liable to be rejected

since he has not examined the Doctor to substantiate that he suffered disability nor he has produced any material to support the same. There is

absolutely no material indicating the medical disability or the economic disability. Claimant ought to have examined the doctor as an expert witness,

which he has not done.

The learned counsel for respondent vehemently submits that the claimant being an Officer of the Forest Department might have availed the

medical reimbursement from the employer of the Government and if award is made for the medical expenditure, here too the same may amount to

duplication of payment/benefit. However, this is subject to the appellant procuring and producing the appropriate certificate from his employer-

Government that he has not availed any benefit of medical reimbursement for the accident in question. There is much force in this submission and

therefore, there has to be some provision to be made to ensure/ascertain that this has not happened. Hence, I proceed to pass the following:

ORDER

The appeal is allowed with costs and thus the Claim Petition is partly allowed.

The Judgment and Award made in MVC No.8075/2008 dated 19.02.2010 made by Motor Accident Claims Tribunal, Bengaluru is

hereby set aside.

Respondent No.1-Insurance Company is directed to pay a sum of Rs.52,598/- towards medical expenditure to the

appellant/claimant within a period of eight weeks from today.