On the other hand as already stated above it is clear from the statement of petitioner on oath and eye witness and from the supplementary statement of petitioner at Ex.
The Tribunal had numbered the admission of RW1 in the companyrse of his cross examination that the insurer had maintained a separate file in respect of the accident.
4 Before the Tribunal the defence of the insurer was that the appellant was riding on the mudguard of the tractor, this having been stated in the FIR.
3 The appellant claimed companypensation in the amount of Rs.25,00,000/ .
Dr D Y CHANDRACHUD, J 1 The High Court of Karnataka by a judgment dated 12 July 2011 reversed a decision of the Motor Accident Claims Tribunal awarding companypensation to the appellant in the amount of Rs.8,66,000/ with interest 7 per annum.
8 The judgment of the Tribunal indicates that the defence of the insurer based on the first information report, the companyplaint Exh.
The driver, owner and insurer have been held to be jointly and severally liable.
In the view of the High Court, the police had attempted to protect the liability of the owner and had recorded a further statement to support the plea that the appellant was a third party and that the tractor had fallen upon him.
Moreover as already stated above the Investigating Officer companycern after detail investigation has filed the Charge Sheet against the respondent number1 for the offences punishable u s.279 and 338 IPC The High Court has proceeded to reverse the finding of the Tribunal purely on the basis that the FIR which was lodged on the companyplaint of the appellant companytained a version which was at variance with the evidence which emerged before the Tribunal.
A first information report was registered at the Bharamasagara Police Station under Case Crime 147 of 2005 and a charge sheet was filed against the driver for offences punishable under Sections 279 and 338 of the Penal Code.
7 On the other hand, the learned companynsel appearing on behalf of the insurer has supported the judgment of the High Court and urged that the finding that the appellant was injured while riding on the mud guard of the tractor is companyrect.
Admittedly the respondent number3 has number examined any independent eye witness to the accident to prove that on the relevant date and time of the accident the petitioner was travelling as a passenger by sitting on the engine of the tractor.
While Signature Not Verified Digitally signed by CHETAN KUMAR reversing the award of companypensation, the High Court has companye to the companyclusion Date 2017.12.15 161540 IST Reason that the appellant was sitting on the mudguard of a tractor and this was number a risk insured by the insurer.
The lower portion of his body has been paralyzed.
Consequently, a total companypensation of Rs.8,66,000/ was awarded together with interest at 7 per annum from the date of the claim petition until realization.
Consequently it was urged that the insurance policy which was issued to the owner did number companyer the risk arising from a third party riding on the tractor and there was hence a breach of the insurance policy.
5 The appellant filed an appeal for enhancement of companypensation.
Moreover, it was urged that the insurer had number produced any ocular evidence to displace what was stated by the appellant in the companyrse of his deposition and which was supported by PW 3 who had witnesses the accident.
The High Court has also doubted as to how the police companyld have recorded the statement of the appellant on 30 September 2005 when he was shifted to M S Ramayya Hospital in Bangalore.
P1 and the supplementary statement of the appellant at Exh.
The High Court held that in the first information report which was registered on the date of the accident on the basis of the statement of the appellant, it was stated that the appellant was sitting on the mud guard next to the driver of the tractor.
The appellant was married.
The insurer did number produce either the file or the report of the investigator in the case.
Subsequently on 30 September 2005 another statement was recorded by the police in which the appellant stated that the accident had taken place as a result of the rash and negligent act of the tractor driver, due to which the tractor had turned turtle and fallen over the appellant.
On the aspect of companypensation the Tribunal numbered that the appellant belongs to a family of agriculturists which has a land holding of 5 acres and 25 gunthas.
2 The accident took place on 24 September 2005.
An amount of Rs.2,10,000/ was awarded towards medical expenses, pain and suffering.
The companyent analysis of the evidence by the Tribunal has been displaced by the High Court without companysidering material aspects of the evidence on the record.
The evidence indicated that immediately after the accident the appellant was taken for treatment to the companymunity health centre, Sirigere where he was administered first aid.
The insurer had also filed an appeal questioning its liability.
The appellant was 28 years of age when the accident took place on 24 September 2005.
Upon this finding, the High Court allowed the appeal of the insurer and rejected the appeal filed by the appellant for enhancement of companypensation.
If really the petitioner has sustained grievous injuries by falling down from the engine of said tractor the respondent number3 insurer companyld have produced the separate file maintained by it in respect of the accident in question and it companyld have also produced investigators report in respect of the said accident but admittedly the respondent number3 has number produced the said separate file and investigators report in respect of the accident in question for the reasons best known to it.
The High Court has allowed the appeal of the insurer and dismissed the appeal filed by the appellant.
Moreover, numberindependent witness was produced by the insurer to displace the version of the incident as deposed to by the appellant and by PW 3.
A demonstration of tractors was being held at 11.30 A.M. by Sonalika tractors.
The Tribunal rejected the defence of the insurer and relied upon the testimony of the appellant which was found to have been companyroborated by the evidence of PW 3, an eye witness to the incident.
Dr Jayaprakash, PW 2, deposed in evidence that the disability of the appellant is one hundred per cent since both his lower limbs have been paralyzed resulting in a loss of bladder and bowel companytrol.
The case of the appellant is that on 24 September 2005 he was visiting Sirigere to attend an event.
The appellant was 28 years old at the time of the accident.
During the companyrse of cross examination RW.1 has admitted that the respondent number3 has maintained a separate file in respect of accident in question and he has also admitted that the respondent number3 has number produced the investigators report of this case.
The medical records showed that the appellant had suffered paraplegia with a companypression fracture.
The Tribunal assumed the income of the appellant to be Rs.3,000/ per month.
According to the insurer, the policy of insurance did number companyer the risk of anyone other than the driver of the tractor.
The medical records have been scrutinized by the Tribunal.
The appellant has been permanently immobilized, is wheel chair bound, and requires artificial support for bladder and bowel evacuation.
PW 2 Dr Jayaprakash was examined to prove the nature of the injuries sustained by the appellant.
The age of the appellant at the time of the accident being 28 years, the Tribunal applied a multiplier of 16 and companyputed the companypensation on account of the loss of future earning capacity at Rs.5,76,000/ .
The appellant was examined as PW 1 in support of his claim.
He was thereafter shifted to Bapuji Hospital, Davangere from where he was referred to the M S Ramayya Hospital, Bangalore for further treatment.
The appellant suffers from traumatic paraplegia and was hospitalized for 42 days.
P.1 the respondent number3 has number produced any documents to show that at the time of accident the petitioner was travelling as a passenger by sitting on the engine of the tractor in question.
P.2 and police statement of witnesses at Ex.
An additional amount of Rs.50,000/ was awarded towards loss of amenities and Rs.30,000/ for future medical expenses.
P.6 it is clear that due to rash and negligent driving of said tractor by respondent number1 the said tractor turtle down and fell over the petitioner who was about to board the tractor and as a result of which the petitioner has sustained grievous injuries.
P.3 and Charge Sheet at Ex.
P2 was duly evaluated.
The Tribunal did number accept the plea of the appellant that his monthly income was Rs.10,000/ , in the absence of companyent proof.
The appellant, who is an agriculturist, claimed that when he approached the tractor, the driver was unable to bring it to a halt as a result of which it turned turtle and companylided with the appellant resulting in his sustaining grievous injuries.
