Sri Girish vs The Manager
2021 Latest Caselaw 5584 Kant

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 6TH DAY OF DECEMBER, 2021

                          PRESENT

         THE HON'BLE MR. JUSTICE P.S. DINESH KUMAR

                            AND

          THE HON'BLE MR. JUSTICE P. KRISHNA BHAT

MISCELLANEOUS FIRST APPEAL NO.2128 OF 2017 (MV-I)

BETWEEN:

       SRI GIRISH
       S/O. LAKSHMAN,
       AGED ABOUT 31 YEARS,
       RESIDING AT AVALAHALLI,
       VIRGONAGARA POST,
       BENGALURU-49.
                                             ... APPELLANT
       (BY SRI H. MAREGOWDA, ADVOCATE)

AND:

1.     THE MANAGER
       UNITED INDIA INS. CO. LIMITED,
       NO.25, SHANKARANARAYANA BUILDING,
       M.G. ROAD,
       BENGALURU.

2.     SRI R.V. PRAKASH
       S/O. LATE R. VENKATESH,
       NO.256, 9TH CROSS,
       BAPUJI LAYOUT,
       VIJAYANAGAR,
       BENGALURU-40.
                             2



3.   SRI PRAMODH
     MAJOR,
     RESIDING AT NO.38,
     AVALAHALLI VILLAGE,
     VIRGONAGARA POST,
     BENGALURU-560 049.
                                          ... RESPONDENTS

     (BY SRI B.C. SHIVANNEGOWDA, ADVOCATE, FOR R-1)

                            ***

     THIS M.F.A IS FILED UNDER SECTION 173(1) OF THE
MOTOR VEHICLES ACT AGAINST THE JUDGMENT AND AWARD
DATED 14-12-2016 PASSED IN M.V.C. NO.547 OF 2009 ON THE
FILE OF THE X ADDITIONAL JUDGE, COURT OF SMALL CAUSES,
BENGALURU (SCCH-16), DISMISSING THE CLAIM PETITION FOR
COMPENSATION.

     THIS M.F.A. IS COMING ON FOR ORDERS, THROUGH
VIDEO   CONFERENCING/PHYSICAL    HEARING  THIS DAY,
KRISHNA BHAT J., DELIVERED THE FOLLOWING:

                     JUDGMENT

This appeal is at the instance of the claimant, who is

calling in question the correctness of the judgment and

award dated 14-12-2016 in M.V.C. No.547 of 2009 passed

by the X Additional Judge, Court of Small Causes and Motor

Accident Claims Tribunal, Bengaluru.

2. Brief facts are, on 9-10-2007 at about 11:00 p.m.,

while the claimant was proceeding on a motorcycle bearing

Registration No.KA-53 E-2159 as a pillion rider near

Graphite India Junction, opposite to Corporation Bank

A.T.M., a lorry bearing Registration No.KA-16 5368 driven

by its Driver in a rash and negligent manner and in high

speed came and dashed against the motorcycle and due to

impact of the same, the claimant fell down and sustained

injuries.

3. In the proceedings before the Tribunal, the

insurer appeared and filed its written statement denying the

material averments made in the claim petition. Respondent

Nos.2 and 3 remained ex-parte.

4. During trial, the claimant examined himself as

P.W.1 and he examined Dr. Chethan, Orthopedic Surgeon

of HOSMAT Hospital as P.W.2. Exs.P.1 to P.13 were

marked. For the respondents, an official of the Insurance

Company was examined as R.W.1 and Exs.R.1 to R.3 were

marked.

5. Upon hearing the learned counsel on both sides

and appreciating the evidence placed, the Tribunal

proceeded to dismiss the claim petition on the ground that

the alleged accident and injuries sustained by the claimant

due to rash and negligent driving of the Driver of the lorry

has not been proved.

6. We have given our anxious consideration to the

submissions made by learned counsel on both sides and

have carefully examined the case papers.

7. Perusal of the impugned judgment of the Tribunal

shows that it has meticulously scrutinised the evidence

placed before it as well as the material documents exhibited

in the case. It is necessary to notice that immediately after

the accident, the claimant was taken to Vydehi Hospital and

thereafter, he was admitted to HOSMAT Hospital. Ex.P.10

is in-patient record, Ex.P.11 is OPD record and Ex.P.13 is

M.L.C. register extract. As per Ex.P.13-M.L.C. register

extract of Vydehi Hospital, the history of the accident was

stated as "... alleged history of RTA fall from 2 wheeler,

while trying to negotiate another vehicle coming from

another way on 9-10-07 at 11:00 a.m. near Graphite

India..". As per Ex.P.11-OPD record shows that cause of

the injury mentioned as RTA due to hitting a road divider by

a two wheeler and falling down.

8. M.L.C. register extract of Vydehi Hospital showed

that the claimant had suffered simple injuries (Ex.P.5-

Wound Certificate).

9. The Tribunal has also noticed that the claimant

(P.W.1) had admitted that lorry was going slowly on the left

side of the road and the rider tried to overtake the lorry and

the accident took place in the middle of the road. Learned

counsel for the claimant submitted that the charge-sheet is

filed against the Driver of the lorry and therefore, taking

note of the same, the Tribunal ought to have allowed the

petition and granted compensation.

10. The Tribunal has rightly noticed that the claimant

ought to have examined the rider of the motorcycle, who

would have been the best witness to state the manner of

taking place of the accident, especially, in view of the

consistent history to the contrary given before two

Hospitals. Non-examination of the rider of the vehicle, as

rightly observed by the Tribunal is fatal to the case of the

claimant. It is noticed by the Tribunal that the claimant

has admitted the contents of Ex.P.13, which showed that he

was shifted to Vydehi Hospital on the same day of the

accident and the history given was due to self-fall from two

wheeler. In that view of the matter, we are satisfied that

the Tribunal has carefully considered the material placed

before it and thereafter, has come to a conclusion that the

accident taking place on account of rash and negligent

driving of the offending vehicle, i.e. lorry has not been

established and in view of the same, we affirm the said

finding. Accordingly, there is no merit in this appeal and

the same is liable to be dismissed.

11. In the result, we pass the following:

ORDER

i. The appeal is dismissed.

Sd/-

JUDGE

Sd/-

JUDGE

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