NISAR AHMED Vs. SURESHLTD

JUDGEMENT

(1.) This Miscellaneous First Appeal is filed under Section 173(1) of M.V. Act, by the owner of the vehicle challenging the judgment and award dated 25.08.2011 passed in MVC.No.357/2009 by the Civil Judge(Sr.Dn), & JMFC and MACT, Pandavapura, questioning fastening of liability on the insured and also the quantum of compensation awarded.

(2.) The claimant-injured filed the claim petition under Section 166 of M.V. Act seeking compensation on the ground that on 16.12.2005 at 6.00 p.m. when he was going by walk to Lakshmipura village at Melukote Cross, Lorry bearing Regn.No.KA-12-1857 came from Melukote towards Jakkanahalli in a rash and negligent manner and due to which it was upsided as a result the claimant who was going by the side of the road sustained grievous injuries to waist, back bone and other parts of the body. Immediately he was shifted to J.S.S. Hospital, Mysuru, where he took treatment for one year as an inpatient and spent Rs.3,00,000/- for medical expenses. He sustained 100% disability. Prior to accident, he was working as a cleaner and agriculturist from which he was earning Rs.10,000/- per month and due to the injuries sustained in the accident, he is unable to work as earlier.

(3.) In the grounds of appeal, it is contended that the Presiding Officer has arrived at the conclusion that at the initial stage, the claimant had lodged a complaint stating that he was working as a cleaner in the lorry of the appellant. But subsequently, given further statement that he was moving on the side of the road, at that time, the lorry came from his behind and dashed against him and as a result of the same, he sustained severe injuries. Therefore, the version of the claimant cannot be believed. The insurance company had taken a contention that since the complaint is lodged at a belated stage, it is a concocted one and the accident has not taken place. But the learned Judge without giving importance to the same has categorically held that the claimant has proved the alleged accident. The Tribunal has committed an error in absolving the second respondent-Insurance Company from its liability only relying on the evidence of R.W.1 who has stated that he was a gratuitous passenger and in the absence of any other evidence available on record. The material available on record only speak that the claimant to be either a cleaner or should be a walker on the road side. Except these two ingredients, nothing is available on record to show that the claimant was a gratuitous passenger. When such being the case, the learned Presiding Officer ought to have taken that either he was a cleaner or was walking on the road side but he did not do so. Further contended that it is an admitted fact that the vehicle was insured with respondent No.2 as on the date of the accident. When such being the case, the liability has to be fixed jointly and severally. But without any reason, the Tribunal has fixed the liability only on the owner. The further contention of the insured is that the doctor who has treated the claimant has not been examined by the claimant. When such is the matter, assessing of the liability by the Tribunal is unscientific and consequently, the quantum of compensation awarded is on the higher side and exorbitant. The complaint is lodged after inordinate delay of 23 days. But the Tribunal has not considered the same, which is erroneous and contrary to the settled principles of law.