IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF MARCH 2019 BEFORE THE HON’BLE MR. L. NARAYANA SWAMY, ACTING CHIEF JUSTICE MISCELLANEOUS FIRST APPEAL NO.11778 OF 2011 (MV) BETWEEN:
1. SMT.SAROJAMMA W/O LATE GOPALA, AGED ABOUT 37 YEARS 2. MAHESH S/O LATE GOPALA, AGED ABOUT 19 YEARS 3. VENKATARAMANA S/O LATE GOPALA, AGED ABOUT 17 YEARS, REPRESENTED BY MINOR GUARDIAN SMT.SAROJAMMA 4. SMT.MOTAMMA AGED ABOUT 67 YEARS, W/O VENKATARAMANAIAH, ALL ARE RESIDING AT NO. 35, HANUMANTHA NAGAR VILLAGE, BEGUR POST, MARALAWADI HOBLI, KANAKAPURA TALUK, RAMANAGARA DISTRICT ... APPELLANTS (BY SRI.G JEEVAPRAKASH & SRI.PRASANNA V.R. ADVS.) AND:
1. THE ORIENTAL INSURANCE CO. LTD., CBO NO.13, RAGIGUDDA BRANCH NO.1188, I FLOOR, 26TH MAIN RAGIGUDDA TEMPLE MAIN ROAD, 9TH BLOCK, JAYANAGAR, BANGALORE – 560 069 (INSURER OF THE TATA TIPPER TRUCK/LORRY BEARING REGN.NO.KA-05-A-7262) 2. SRI.THANGARAJU MAJOR, RESIDING AT NO.904, 28TH MAIN, 4TH "T" BLOCK, THILAKNAGAR, JAYANAGAR, BANGALORE – 560 011 (OWNER OF THE TATA TIPPER TRUCK/LORRY BEARING REGN.NO.KA-05-7262) ... RESPONDENTS (BY SRI.B.S.UMESH, ADV. FOR R1; R2 IS SERVED) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:25.05.2011 PASSED IN MVC NO.4933/2009 ON THE FILE OF THE II ADDITIONAL JUDGE, MACT, COURT OF SMALL CAUSES, BENGALURU, DISMISSING THE CLAIM PETITION FOR COMPENSATION.
THIS MFA COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T For the death of one Gopal on 08th May 2009, the claimants have made claim petitions before the Motor Vehicle Accident Claims Tribunal, Bengaluru seeking compensation. The Tribunal, by its judgment dated 25th May 2011 passed in MVC No.4933 of 2009 dismissed the claim petition. Challenging the same, this appeal is preferred.
2. The learned counsel submits that the Tribunal has not appreciated the case of the claimants and dismissed the petition which, according to him, is an error. Hence, he submits to allow the appeal by awarding suitable compensation.
3. The learned counsel for the respondent-insurer supports the order of the Tribunal and submits that the Tribunal has passed the judgment based on the documentary evidence and there is no error in the same and hence submits to dismiss the appeal.
4 Heard the learned counsel for the parties and gone through the judgment of the Tribunal. In the course of judgment at paragraphs 11 and 12, the Tribunal has observed thus:
“11. Issue No.2: It is the case of the petitioners that the driver of the insured tipper lorry bearing No.KA 05 7262 had moved the vehicle at high speed and in a rash or negligent manner when the deceased was about to board the vehicle and had fallen down, rear wheel of the lorry ran over him and succumbed to fatal injuries.
This version of the accident is seriously denied by the Insurance company. Since the above material proposition of fact is denied by the insurance company, this issue is framed accordingly casting burden on the petitioners to prove that the accident had occurred in the manner pleaded in the petition. There is another version in the police papers as far as death of the deceased Gopala. One Anand S/o I.M. Perumal is the complainant. The FIR and complaint in Crime NO.96/2009 of MICO Layout Traffic Police Station, Bengaluru is marked as Ex.P1. The above complaint is also a hearsay record. It appears from the contents of Ex.P1 that he received a call to his mobile phone on 8.5.2009 at about 7.15 am from his lorry driver Kanna that deceased Gopala was found sleeping behind his lorry and when the said lorry driver Kanna had tried to wake him up, he found bleeding injuries on the waist and he was not responding to the calls. After receiving the information, the complainant had gone to the lorry stand and found that the deceased Gopala had sustained grievous injuries on his waist and both thighs and had succumbed to death. Thereafter, he ascertained about the cause with some one in the lorry stand who had informed him that the driver of lorry bearing No.KA 05 7262 had caused the accident and had kept the dead body behind the lorry of the complainant bearing No.AP 26 T 3330.
12. It is pertinent to note that there are no eye- witnesses to the alleged incident. It is not clear as to who informed the complainant that the driver of lorry bearing No.KA 05 7262 had caused accident. The Police papers do not reflect that the accident had occurred in the manner narrated in the petition. The petitioners have failed to examine the complainant Anand in order to ascertain the exact cause for death of the deceased. They have also not examined the driver of lorry bearing No.AP 26 T 3330 namely, Kanna who had informed the complainant about the death of the deceased Gopala.”
5. The reasons assigned by the Tribunal and sound and proper. There is no ground made out for interference. Accordingly appeal stand dismissed.
Sd/-
ACTING CHIEF JUSTICE lnn