Karnataka High Court
Smt. Sunita And Ors vs Sri. Ashok And Anr on 2 July, 2024
-1-
NC: 2024:KHC-K:4458-DB
MFA No.202484 of 2019
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 2ND DAY OF JULY, 2024
PRESENT
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR. JUSTICE RAJESH RAI K
MISCL. FIRST APPEAL NO.202484 OF 2019 (MV-D)
BETWEEN:
1. SMT. SUNITA
W/O SANJU PAWAR,
AGED ABOUT 33 YEARS,
OCC: HOUSEHOLD WORK,
R/O: JALAGERI LT-1,
DIST: VIJAYAPUR.
2. KAJAL
D/O SANJU PAWAR
AGED ABOUT 13 YEARS,
Digitally signed by OCC: STUDENT,
BASALINGAPPA
SHIVARAJ R/O: JALAGERI LT-1,
DHUTTARGAON
DIST: VIJAYAPUR.
Location: HIGH
COURT OF SINCE MINOR REP.
KARNATAKA BY NATURAL MOTHER
M/G/THE APPELLANT NO.1.
3. SRI. SHANKAR
S/O RUPLA PAWAR,
AGED ABOUT 71 YEARS,
OCC: AGRICULTURE,
R/O: SOMADEVAHATTI LT-1,
TQ: TIKOTA, DIST: VIJAYAPUR.
-2-
NC: 2024:KHC-K:4458-DB
MFA No.202484 of 2019
4. JAMABAI
W/O SHANKAR PAWAR,
AGED ABOUT 67 YEARS,
OCC: HOUSEHOLD WORK,
R/O: SOMADEVAHATTI LT-1,
TQ: TIKOTA, DIST: VIJAYAPUR.
...APPELLANTS
(BY SRI S.S. MAMADAPUR, ADVOCATE)
AND:
1. SRI. ASHOK
S/O SHYAMARAO JADHAV,
AGED ABOUT 41 YEARS,
OCC: SERVICE,
R/O: ADAKI GALLI, WARD NO.10,
NOW AT SHIVAJI NAGAR,
VIJAYAPUR - 586 101.
2. THE MANAGER,
NATIONAL INSURANCE CO. LTD.,
POREWAL BUILDING,
S.S. CROSS ROAD,
VIJAYAPUR - 586 101.
...RESPONDENTS
(BY SRI SHARANABASAPPA M. PATIL, ADVOCATE FOR R2;
NOTICE TO R1 IS SERVED)
THIS MFA IS FILED UNDER SECTION 173 (1) OF THE
MOTOR VEHICLES ACT, PRAYING TO SET ASIDE THE
JUDGMENT AND AWARD DATED 24.10.2019 PASSED BY THE
LEARNED I ADDITIONAL DISTRICT JUDGE AND MEMBER
M.A.C.T-II, VIJAYPUR IN M.V.C. NO.1600/2008 AND
CONSEQUENTLY ALLOW THE SAID PETITION AS PRAYED FOR,
IN THE INTEREST OF JUSTICE AND EQUITY.
-3-
NC: 2024:KHC-K:4458-DB
MFA No.202484 of 2019
THIS MFA COMING ON FOR HEARING THIS DAY,
ASHOK S. KINAGI J., DELIVERED THE FOLLOWING:
JUDGMENT
This Miscellaneous First Appeal is filed under Section 173(1) of Motor Vehicle Act challenging the judgment and award dated 24.10.2019 passed in MVC No.1600/2008 by I Addl. District Judge and MACT-II, Vijayapura (henceforth referred as 'Tribunal') whereby the Tribunal rejected the claim petition.
2. Parties to the appeal are referred to as per their status before the Tribunal. The appellants are the petitioners and the respondents are the respondents.
3. The facts leading rise to the filing of the appeal briefly stated are that:
On 28.10.2007 at about 7.00 p.m., deceased Sanju was proceeding from Yatnal to Lalageri on his bicycle cautiously. When he came near Vithalwadi cross (near Yatnal Tank), on Yatnal to Jalageri road, at that time, the rider of the Hero Honda Motorcycle bearing Reg.No.KA-28- Q-4019 came from Yatnal side in a rash and negligent -4- NC: 2024:KHC-K:4458-DB MFA No.202484 of 2019 manner and dashed to the bicycle of deceased Sanju, due to which accident occurred and Sanju fell down from the bicycle and sustained severe head injuries. Immediately he was shifted to District Hospital, Vijayapura for treatment and he succumbed to the injuries on 02.11.2007 in the hospital. It is contended that the deceased Sanju was hale and healthy. He was aged 25 years and doing agricultural work and getting income of Rs.6,000/- per month. He was maintaining the family of the petitioners. Hence, the petitioners filed claim petition under Section 166 of M.V. Act claiming compensation for the death of the deceased Sanju in the road traffic accident.
4. Though notice served, respondent No.1 remained absent and placed ex parte.
5. Respondent No.2 filed written statement denying the claim petition and admits the existence of insurance policy issued to the respondent No.1 for the Motorcycle bearing Reg.No.KA-28-Q-4019. It is contended -5- NC: 2024:KHC-K:4458-DB MFA No.202484 of 2019 that, on the date of the alleged accident, the said motorcycle was not involved in the alleged accident. The petitioners in collusion with the respondent No.1 and Police officials managed to implicate the motorcycle in the accident to get the unlawful gain from the respondent No.2-Insurance company. It is further contended that, the rider of the motorcycle was not possessing valid and effective driving license and the petitioners have not proved the particular of type of vehicle. Hence, the respondent No.2 prays to dismiss the claim petition against the respondent No.2.
6. On the basis of pleadings, the Tribunal framed relevant issues for consideration. In order to substantiate the contention of claim petition, the petitioner No.1 was examined as P.W.1 and got examined one witness as P.W.2 and got marked documents as Exs.P.1 to P9. The respondent No.2-Insurance Company examined its official as RW.1 and got marked one document as Exs.R1 and 2. -6-
NC: 2024:KHC-K:4458-DB MFA No.202484 of 2019
7. After assessment of oral and documentary evidence, the Tribunal rejected claim petition. Being aggrieved by the judgment and award passed by the Tribunal, the petitioners filed the present appeal.
8. Heard the learned counsel for the petitioners and learned counsel for the respondent No.2.
9. The learned counsel for the petitioners submits that, the petitioners have proved that the accident was occurred due to rash and negligent riding of the rider of the offending motorcycle. He further submits that, the charge-sheet is filed against the rider of the offending vehicle and therefore it is clearly indicate that the said vehicle was involved in the accident. Further, he submits that the charge-sheet has not been challenged by the respondents. Hence, he submits that the Tribunal without considering the material placed on record, dismissed the claim petition. He submits that the impugned judgment passed by the Tribunal is arbitrary and erroneous. Hence, on these grounds, he prays to allow the appeal. -7-
NC: 2024:KHC-K:4458-DB MFA No.202484 of 2019
10. Per contra, learned counsel for the respondent No.2-Insurance Company vehemently contend that, the Tribunal after considering the evidence and documents placed before it, the Tribunal rightly rejected the claim petition, which does not call for any interference. Accordingly, he prays to dismiss the appeal.
11. Perused the records and considered the submission made by the learned counsel for the parties.
12. The only point that arises for our consideration is:-
1. Whether the Tribunal is justified in dismissing the claim petition filed by the petitioners?
2. What order?
13. Point No.1: It is the case of the petitioners that on 28.10.2007, the deceased Sanju was proceeding on his bicycle and the rider of the offending motorcycle bearing Reg.No.KA-28-Q-4019 dashed to the bicycle of the -8- NC: 2024:KHC-K:4458-DB MFA No.202484 of 2019 deceased Sanju due to which the accident occurred and deceased Sanju sustained multiple injuries and he succumbed to the injuries on 02.11.2007. In order to establish that the accident was occurred due to rash and negligent riding of the offending vehicle, the petitioner produced and got marked certified copies of the FIR and charge-sheet as Exs.P.1 and 6. From the perusal of Ex.P.1 discloses that FIR was registered against unknown motorcycle and unknown rider. Ex.P.2 is the certified copy of the complaint given against the unknown rider and unknown motorcycle.
14. In the course of cross-examination of P.W.1, it was elicited that on the date of accident, she came to know that the rider Rangnath Rathod dashed to her deceased husband, who was coming on his bicycle. The Police have recorded the statement of P.W.1 under Section 161 of Cr.P.C. But, the P.W.1 did not disclose the name of the rider of motorcycle before the Police and it is also elicited that her father-in-law i.e. Shankar went to the -9- NC: 2024:KHC-K:4458-DB MFA No.202484 of 2019 Police Station and informed the Police regarding the motorcycle number and name of the rider. But the petitioners have not examined the said Shankar i.e., father-in-law of P.W.1 before the Tribunal. Further, it was elicited that she has no idea who dashed to the bicycle of her deceased husband - Sanju. Admittedly, P.W.1 is not an eyewitness and she is not aware about the manner in which the alleged accident took place and her evidence is not sufficient to hold that the accident was occurred due to rash and negligent riding of the rider of the offending motorcycle.
15. The petitioners have also examined one Rangu S/o Walu Rathod, who is alleged to be an eyewitness. He has deposed that the accident was caused due to rash and negligent riding of the motorcycle and dashed to the bicycle of deceased Sanju, as a result of which, Sanju sustained multiple injuries in the said accident. He immediately rushed to the spot and noticed the number motorcycle as KA-28-/Q-4019. In the course of cross-
- 10 -
NC: 2024:KHC-K:4458-DB MFA No.202484 of 2019 examination, it was elicited that he does know know Ranganth Rathod i.e., alleged rider of the motorcycle. As per the charge-sheet, the rider of the motorcycle is shown as Rangnath Rathod. If at all, P.W.2 is said to be an eyewitness, nothing has been prevented P.W.2 to lodged a complaint before the Police informing about the alleged incident. But, P.W.2 has not lodged a complaint about the alleged accident. Further, it is elicited during the course of cross-examination that P.W.2 has not informed about the name of rider of the vehicle to Shankar i.e., father-in-law of the P.W.1 and it was elicited that the rider of the motorcycle ran away from the spot and he did not know who informed him about the rider of the motorcycle.
16. Further in the course of cross-examination of P.W.2, it is elicited that by the time Police reached, he left the spot and he intimated the Police regarding the incident on the next date of accident and he admitted that the Police have not recorded the statement on the same day. From the perusal of entire evidence of P.W.2, he never
- 11 -
NC: 2024:KHC-K:4458-DB MFA No.202484 of 2019 stated that he knows reading and writing of Kannada knowledge. From perusal of the entire record, it is clear from the FIR that the case was registered against some unknown motorcycle and name of the driver was not known and the FIR was registered on 29.10.2007 and the statement of Shankar was recorded on 31.10.2007 by the Investigating Officer. The petitioners have not examined the Shankar, who is the complainant as he was the proper person to speak about how he came to know the name of the rider and motorcycle number. Therefore, adverse inference has to be drawn against the petitioners and further according to the complainant one Somu Rathod informed the complainant Shankar and the said Somu Rathod was also not examined before the Tribunal for the reason best known to the petitioners.
17. After having gone through the oral and documentary evidence, the petitioners have failed to establish that the accident was occurred due to rash and negligent riding of the motorcycle by its rider and further
- 12 -
NC: 2024:KHC-K:4458-DB MFA No.202484 of 2019 respondent No.2 - Insurance company has proved that the vehicle has been falsely implicated in order to claim the compensation. Further, the respondent No.2 has successfully established the defence pleaded by it in the written statement and therefore the Tribunal was justified in dismissing the claim petition. Hence, in view of the above discussion, we do not find any error in the impugned judgment and we decline to interfere with the impugned judgment. Accordingly, point No.1 is answered in the Affirmative.
18. Point No.2: For the foregoing reasons, we proceed to pass the following:
ORDER i. The Miscellaneous First Appeal filed by the petitioners is hereby dismissed.
ii. The judgment and award dated
24.10.2019 in MVC No.1600/2008
- 13 -
NC: 2024:KHC-K:4458-DB
MFA No.202484 of 2019
passed by the Tribunal is
confirmed.
iii. No order as to costs.
Sd/-
JUDGE
Sd/-
JUDGE
BL
List No.: 1 Sl No.: 7