IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF DECEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE S.G.PANDIT M.F.A.No.8413/2013 [MV] BETWEEN:
SRI SURESH S/O GADEGOWDA AGED ABOUT 37 YEARS R/AT K BYDARAHALLI VILLAGE SHANTHIGRAMA HOBLI HASSAN TALUK AND DISTRICT.
(BY SRI NARASIMHA MURTHY G V, ADV.) AND:
1. SRI. EREGOWDA S/O VEERABHADREGOWDA AGED MAJOR R/A BAGUR HOBLI CHANNRAYAPATNA TALUK HASSAN DIST.-573116.
2. THE MANAGER THE UNITED INDIA INSURANCE CO. LTD., VENKATESHWARA BUILDING P B NO.108, B M ROAD HASSAN-573261.
...APPELLANT …RESPONDENTS (BY SRI.K SURESH, ADV. FOR R2 R1-SERVICE OF NOTICE ACCEPTED V/O DT:15.03.2019) THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 13.07.2012 PASSED IN MVC NO.80/2009 ON THE FILE OF THE ADDITIONAL DISTRICT JUDGE, MEMBER, MACT-II, HASSAN, DISMISSING THE CLAIM PETITION FOR COMPENSATION.
THIS M.F.A COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T The claimant is in appeal not being satisfied with the quantum of compensation awarded under the judgment and award dated 13.07.2012 passed in MVC No.80/2009 on the file of Additional District Judge and MACT II, Hassan.
2. The claim petition was filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation for the injuries sustained in the alleged Road Traffic Accident. It is stated that on 10.06.2008 when the claimant was proceeding on his Motor Bike bearing No.KA-13-A-3692 at K. Byadrahalli a mini lorry bearing Reg.No.13-A-3006 came from opposite side and dashed to the claimant's motor bike. As a result, he fell down and sustained injuries on his head and fracture of left hand bone, immediately he was shifted to Hassan Government Hospital. It is stated that he was working as agricutural coolie, he was earning Rs.5,000/- per month.
3. On issuance of summons respondents 1 and 2 entered appearance and filed written statement. Respondent No.1 owner of the offending vehicle denied the claim petition averments and denied the occurrence of the accident due to rash and negligent driving of the mini lorry. On the other hand, it is stated that the accident occurred solely due to the negligence of the claimant himself. Further he stated that the vehicle is insured with the 2nd respondent - Insurer and the claim is exorbitant and excessive. The 2nd respondent - Insurer in its statement denied the allegation made in the petition. Further it stated that the driver had no valid and effective driving licence as on the date of accident. Further it stated that accident occurred solely due to the negligence of the claimant himself, who was walking on the road without observing the rules and regulations.
4. The claimant examined himself as PW.1 apart from marking the documents Exs.P1 to P5 in support of his case. No evidence was led on behalf of the respondents. The Tribunal on appreciating the material on record dismissed the claim petition on the ground that the claimant has not proved the accident alleged to have occurred on 10.06.2008 involving the Motor Bike and Mini Lorry. Being aggrieved by dismissal of the claim petition the claimant is in appeal before this Court.
5. Heard the learned counsel for the appellant/claimant and learned counsel for the respondent - insurer. Perused the entire material on record.
6. Learned counsel for the appellant/claimant would submit that the impugned judgment and award of the Tribunal is wholly erroneous and perverse. He submits that the Tribunal could not have rejected the claim petition. He submits that the accident had taken place on 10.06.2008 and the complaint was filed on 13.06.2008. It is his further submission that the complaint and the hospital records would indicate that the claimant suffered injuries due to the road traffic accident. Exs.P1 and P3 would indicate that the accident had taken place between the Motor bike and the mini lorry. The tribunal, only based on the evidence of PW.1 - the claimant, could not have come to the conclusion that the accident had not taken place between the Motor Bike and the Mini Lorry. It is his further submission that charge-sheet is filed against the driver of the mini lorry. Therefore, he submits that Tribunal committed an error in rejecting the claim petition, thus prays for allowing the appeal.
7. Per contra, learned counsel for the respondent- insurer submits that the accident had not taken place between the motor bike and the mini lorry. The claimant fell down from Bike on his own and he has made out a false case for unlawful gain. He invites attention of this Court to Ex.P.4 - IMV report wherein it states that there was no damages to the vehicle in question at the time of inspection of the motor bike. Thus he prays for dismissal of the appeal.
8. Having heard the learned counsel for the parties and on perusal of the material on record, the only point that arises for consideration is as to 'Whether the Tribunal is justified in dismissing the claim petition filed under Section 166 of the Motor Vehicles Act, 1988 ?
Answer to the said point is in the affirmative for the following reasons :-
The appellant/claimant states that while he was proceeding in his Motor bike bearing Reg.No.KA-13-A- 3692 and when he reached K. Byadarahalli, a mini lorry bearing Reg.No.KA-13-A-3006 came from opposite direction in high speed, rash and negligent manner and dashed to the claimant, as a result of which, he fell down and sustained injures. Even though the accident had taken place on 10.06.2008 the complaint was lodged only on 13.06.2008. It is stated that the wife of the claimant filed the complaint, but records would show otherwise. On 13.06.2006 complaint was lodged by the claimant and a case has been registered on the same day. After lodging the complaint on 13.06.2008, mahazar of the vehicle had taken place on 22.06.2008, i.e., 40 days after the accident and 37 days after lodging the complaint. The IMV report Ex.P4 placed on record by the claimant himself would not show any damage to the vehicle. Vehicle inspection was conducted on 22.07.2008 and column No.7 of the report indicates that no damages noticed on the vehicle, at the time of inspection. If the accident had taken place between the motor bike and the mini lorry, definitely damage would have caused to the motor bike. Moreover, the claimant, who examined himself as PW.1 states in his evidence as follows :-
“£Á£ÀÄ ªÉÄîÌAqÀ CfðAiÀÄ°è CfðzÁgÀ£ÁVgÀÄvÉÛãÉ.
£Á£ÀÄ ¢£ÁAPÀ: 10-06-2008 gÀAzÀÄ ªÀÄzsÁåºÀß 12-50 ¸ÀªÀÄAiÀÄzÀ°è ªÀÄ£ÉAiÀÄ£ÀÄß ©lÄÖ 1-00 UÀAmÉ ¸ÀªÀÄAiÀÄ PÉ.¨ÁåqÀgÀºÀ½î gÀ¸ÉÛAiÀÄ°è L£Àgï gÁªÀÄtÚ£ÀªÀgÀ d«Ää£À ºÀwÛgÀ £ÀqÉzÀÄPÉÆAqÀÄ §gÀÄwÛgÀĪÁUÀ JzÀÄgÀÄUÀqɬÄAzÀ §AzÀ «Ä¤¯Áj ZÁ®PÀ £ÀA.PÉJ-13-J-3006 gÀ «Ä¤ ¯Áj CwªÉÃUÀ ªÀÄvÀÄÛ CeÁUÀgÀÆPÀvɬÄAzÀ §AzÀÄ £À£ÀUÉ rQÌ ªÀiÁrzÀ ¥ÀæAiÀÄÄPÀÛ £À£Àß vÀ¯ÉUÉ, ºÁUÀÆ JqÀPÉÊUÉ ¥ÉmÁÖVgÀÄvÀÛzÉ ªÀÄÆ¼É ªÀÄÄjzÀÄ ºÉÆÃVgÀÄvÀÛzÉ. £À£ÀߣÀÄß vÀPÀët ºÁ¸À£ÀzÀ ¸ÀPÁðj C¸ÀàvÉæUÉ M¼ÀgÉÆÃVAiÀiÁV ¸ÉÃj¸À¯Á¬ÄvÀÄ. £Á£ÀÄ C°è MAzÀÄ wAUÀ¼ÀÄUÀ¼À PÁ® M¼ÀgÉÆÃVAiÀiÁV aQvÉì ¥ÀqÉ¢zÀÄÝ, aQvÁì ªÉZÀÑPÁÌV ¸ÀĪÀiÁgÀÄ 30,000-00 gÀÆ.
UÀ¼À£ÀÄß RZÀÄð ªÀiÁrgÀÄvÉÛãÉ.
The above evidence of PW.1 reveals that when he was walking near K. Byadarahalli road near Ramanna’s land a mini lorry bearing Reg.No.KA-13-A-3006 came from opposite direction in a rash and negligence manner and dashed to him. In the cross-examination he stated that whatever is stated in the affidavit is true. Again the plaintiff is further examined, where he states that while he was proceeding in his motor bike, a mini lorry bearing Reg.No.KA-13-A-3006 dashed to the Motor Bike and what he stated in the affidavit is ‘typographical error’. It cannot be believed in the facts and circumstances of the case. The claimant has failed to examine any other independent witness in support of his case. There are contradictions between the complaint lodged and the evidence of PW.1 The claimant states that immediately after the accident he was taken to hospital by one Srinivas. But the said Srinivas is not examined before the Tribunal. Further in the cross-examination, the claimant states that on the date of accident itself the police had visited the hospital and recorded his statement. But no such material is placed on record. On an over all scrutiny of the material on record and the evidence of PW.1, I am of the view, that the Tribunal has rightly dismissed the claim petition. The impugned judgment and decree does not suffer from erroneousness or perversity. Accordingly the appeal stands dismissed.
Sd/- JUDGE NG* CT:bms