IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT M.F.A.NO.2094 OF 2013 (MV) BETWEEN:
THIMMAIAH, 49 YEARS, S/O CHIKKAKADALAIAH R/O DODDAMAVATTURU HULIYUR DARGA HOBLI KUNIGAL TALLUK, TUMKUR DISTRICT. NOW RESIDING AT THIMMAIAH C/O SANNAVEERABHADRAIAH GULUR TUMKUR TALUK AND DISTRICT.
(BY SRI. PATEL.D.KAREGOWDA, ADVOCATE) AND:
1. BYRASHETTY, MAJOR, S/O LATE NANJAPPA R/O JODAGHATTA VILLAGE, MAYASANDRA HOBLI, D.S. KERE POST, TURUVEKERE TALUK TUMKUR DISTRICT.
2. THE MANAGER UNITED INDIA INSURANCE COMPANY LIMITED NO.1119/B, M.C. ROAD, ... APPELLANT MANDYA – 571 401. ... RESPONDENTS (BY SRI. D. VIJAYAKUMAR, ADVOCATE FOR R2 R1 IS SERVED) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 29.8.2012 PASSED IN MVC NO.724/2011 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK-I, ADDITINOAL MACT, TUMKUR, DISMISSING THE CLAIM PETITION FOR COMPENSATION.
THIS MFA COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The claimant is in appeal under Section 173(1) of the Motor Vehicles Act, being aggrieved by the dismissal of the claim petition filed under Section 166 of the Motor Vehicles Act under the judgment and award dated 29/08/2012 in M.V.C.No.724/2011 on the file of the Court of Fast Track Court-I and Additional MACT, Tumkur.
2. The claim petition was filed under Section 166 of the Motor Vehicles Act, claiming compensation for the accidental injuries said to have been suffered in a road traffic accident. It is stated that on 17-4-2011, when the claimant was proceeding as a pillion rider in TVS-XL motorcycle from Bellur cross to Kunigal, when they reached Yediyur petrol bunk, APE Auto bearing No.KA-18-
A-0169, driven by its driver came in a rash and negligent manner and dashed against the motorcycle from hind side. Due to which, the claimant fell down and sustained grievous injuries. Immediately, he was shifted to A.C.Giri Hospital, wherein he was inpatient from 17-4-2011 to 23-4-2011. In this regard, the complaint came to be lodged on 25-4-2011. It is stated that the claimant was aged 47 years as on the date of accident and he was earning Rs.6,000/- to 8,000/- per month as a coolie and agriculturist.
3. On issuance of notice, both the respondents appeared before the Tribunal and filed their written statement. Respondent No.1-owner of the offending vehicle filed the written statement denying the claim petition averments and further contended that the vehicle was insured with respondent No.2-insurer and policy was in force as on the date of accident. Hence, respondent No.2-insurer be directed to pay the compensation. Respondent No.2-Insurer filed its written statement denying the claim petition averments and also further contended that the compensation claimed is highly excessive. Further contended that the accident had taken place due to exclusive negligence of rider of motorcycle- TVS-XL.
4. The claimant examined himself as PW-1 and Doctor as PW-2, apart from marking documents Exs.P-1 to P-17. No evidence was lead or documents were marked on behalf of the respondents.
5. Based on the pleadings, the Tribunal framed the following issues for its consideration.
1) Whether the petitioner proves that accident in question was occurred due to rash and negligent driving of Ape Auto bearing Reg.No.KA-18A-0169 by its driver and due to accident he has sustained grievous injuries?
2) Whether the claimant is entitled for the compensation? if so for what amount and from whom?
3) What order or Award?
On consideration of the material placed on record, the Tribunal answered issue No.1 in the negative and dismissed the claim petition. Aggrieved by the same, the claimant is before this Court in this appeal.
6. Heard the learned counsel for the appellant and learned counsel for respondent No.2-Insurer. Perused the records.
7. Learned counsel for the appellant would submit that the Tribunal committed an error in dismissing the claim petition filed under Section 166 of the Motor Vehicles Act. It is his further submission that the Tribunal failed to appreciate the material on record. He further submits that the claimant to prove the accident, has placed on record Ex.P-1-FIR, Ex.P-2-Complaint and Exs.P-3 & 4 – Mahazar, which would sufficiently establish the accident between the TVS-XL motorcycle and APE Auto. Learned counsel further invites attention of this Court to Ex.P-2-Complaint, wherein it is stated that when the claimant was proceeding as a pillion rider near Bellur cross, APE Auto came from behind and dashed to the motorcycle. Even though the accident had taken place on 17-4-2011, the complaint could not be lodged till 25-4-2011. Subsequent to discharge of the claimant from the Hospital, complaint came to be lodged. Thus, he prays for allowing the appeal.
8. Per contra, learned counsel for respondent No.2– Insurer submits that there is a delay in lodging the compliant and also denies the involvement of the APE Auto in the accident relying on Ex.P-5-IMV report, where it is stated that there is no damage caused to the Auto. It is his further submission that according to the claimant the accident had taken place on Bengaluru-Hassan highway at Bellur cross, Yediyur but Ex.P-13 would indicate that the accident had taken place on 17-4-2011 at 10:00 p.m., at Tavarekere of Huliyurdurga Hobli, Kunigal Taluk. Hence, there is contradiction with regard to the occurrence of accident. Thus, prays for dismissal of the appeal.
9. On hearing the learned counsels for the parties and on perusal of the lower court records, the only point which arises for consideration in the facts and circumstances of the case is as to whether the Tribunal is justified in rejecting the claim petition filed under Section 166 of the Motor Vehicles Act. Answer to the said point is in affirmative for the following reasons.
10. The claim petition under Section 166 of the Motor Vehicles Act was filed claiming compensation for the accidental injuries suffered in a road traffic accident occurred on 17-4-2011 involving TVS-XL motorcycle and APE Auto bearing No.KA-18-A-0169. Even though the accident occurred on 17-4-2011, the complaint was lodged only on 25-4-2011. There is no proper explanation for the delay of eight days in lodging the complaint. The explanation is that the claimant lodged the complaint only after his discharge from the Hospital, which is not a proper reason for lodging the complaint after eight days from the date of accident and the complaint is lodged by claimant himself. The claimant was proceeding as a pillion rider and rider of the motorcycle failed to lodge the complaint and there is no indication of the rider of the motorcycle suffering from any injury due to the accident. According to the claimant, the accident occurred near petrol bunk at Yediyur at Bengaluru-Hassan main road at 9:30 p.m., on 17-4-2011. The complaint-Ex.P-2 also states that the accident had taken place at 9:30 p.m, near petrol bunk at Yediyur. But surprisingly Ex.P-13-Hospital records indicates that the accident had taken place on 17-4-2011 at 10:00 p.m., at Tavarekere of Huliyurdurga Hobli, Kunigal Taluk. There is contradiction between Exs.P-13 & P-2. Moreover, it is the case of the claimant that when he was proceeding as a pillion rider, APE Auto came from behind and dashed hind side of the motorcycle. On perusal of Ex.P-5, which notes that no damages were found at the time of inspection. If the Auto had come and hit the motorcycle from behind, definitely the damage would have caused to the Auto and in the inspection report the damage caused to the Auto would have been indicated. Ex.P-5 and Ex.P-13 justifies the dismissal of the claim petition by the Tribunal. The Tribunal, while dismissing the claim petition has recorded the finding that the Auto has not dashed to the motorcycle from behind. In a claim petition filed under Section 166 of the Motor Vehicles Act, first and foremost for the claimant is to prove the accident. But in the instant case, the claimant failed to prove the accident. Hence, I find no perversity or erroneousness in the impugned judgment and award.
The claimant has not made out any ground to interfere with the judgment and award passed by the Tribunal.
Accordingly, the appeal stands dismissed.
Sd/- JUDGE SMJ