Karnataka High Court
Devaraj S/O T V Kumar Nayar vs Baradvarajulu S/O Thippaiah on 13 December, 2021
Bench: Ravi V.Hosmani
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 13TH DAY OF DECEMBER, 2021
BEFORE
THE HON'BLE MR.JUSTICE RAVI V. HOSMANI
M.F.A.NO.22218/2010 (MV)
BETWEEN:
DEVARAJ S/O T V KUMAR NAYAR
AGE: 41 YEARS, OCC: MAISTRY CUM
BUILDING CONTRACTOR,
R/O. OPPOSITE BCC GROUND, FORT,
BALLARI.
...APPELLANT
(BY SHRI HANUMANTHAREDDY SAHUKAR, ADVOCATE.)
AND:
1. BARADVARAJULU S/O THIPPAIAH
AGE: 41 YEARS, OCC: DRIVER OF
CAR BEARING NO. KA-34/M-3851,
R/O. RAJIVGANDHI NAGAR, BALLARI
2. P SURESH S/O P R SATAYANARAYANA REDDY
AGE: MAJOR, OWNER OF THE CAR
BEARING NO.KA-34/M 3851
R/O WARD NO. 25, OPPOSITE
MAHADEVATHATHA MATH, VIDYANAGAR
BALLARI
3. THE DIVISIONAL MANAGER
ICICI LOMBARD GENERAL
INSURANCE COMPANY LTD.
2
REGISTERED OFFICE ICICI BANK TOWER
BANDRA KJURAL COMPLEX, MUMBAI.
...RESPONDENTS.
(BY SHRI MALLIKARJUN B. MADANALLI, ADVOCATE, FOR SHRI
NAGARAJ C. KOLLOORI, ADVOCATE, FOR R.3;
R.1 - NOTICE DISPENSED WITH;
R.2 - APPEAL DISMISSED, VIDE ORDER DATED 10.6.2014.)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MOTOR VEHICLES ACT, 1988, PRAYING TO SET
ASIDE THE JUDGMENT AND AWARD DATED 20.01.2010, PASSED IN
MVC NO.1318/2007, ON THE FILE OF THE PRL. DISTRICT AND
SESSIONS JUDGE CUM MACT-I, BALLARI, AND TO AWARD
COMPENSATION AS PRAYED FOR, ETC.,.
THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by claimant challenging judgment and
award dated 20.1.2010, passed by Prl. District and Sessions
Judge cum MACT-I, Ballari, in MVC No.1318/2007 praying to
award compensation as prayed for.
2. Brief facts as stated are that, on 2.6.2007, when
claimant was walking on Ballari-Hosapete road at about 7.00
p.m., a Maruti Car bearing registration no.KA-34/M-3851 came
in a rash and negligent manner and dashed to claimant. In the
accident he sustained grievous injuries and was admitted to
VIMS Hospital for treatment. Thereafter he has took treatment
with private doctors. However he did not recover fully and
sustained permanent disability. Claiming compensation for the
same, he filed claim petition against owner and insurer of car
under Section 166 of Motor Vehicles Act, 1988.
3. Despite service of notice, owner did not contest the
matter. He was placed exparte. Respondent insurer filed
objections denying claim petition averments and denying
accident was due to negligence of driver of car. Issuance of
insurance policy was admitted subject to terms and conditions .
Age, occupation, income and disability sustained were denied
and claim petition opposed as being exorbitant.
4. Based on pleadings, tribunal framed issues no.1
to 3. Claimant was examined as PW.1, Exhibits P.1 to P.11 were
marked. On behalf of respondents, one witness was examined
as RW.1. Exhibits R.1 to R.4 were marked.
5. On consideration, tribunal answered issues no.1
and 2 in negative and issue no.3 by dismissing the claim
petition. Challenging dismissal, claimant is in appeal.
6. It was submitted that tribunal was not justified in
dismissing claim petition by disbelieving occurrence of accident.
It was further submitted that occurrence of accident involving
the car is admitted by insurer as driver of car had also filed a
claim petition under the Workmen's Compensation Act in ECA
No.551/2014 before II Addl. Senior Civil Judge, Ballari, wherein
award came to be passed. Insurer had not questioned the said
finding and order.
7. On the other hand, Shri Nagaraj Kolloori learned
counsel for respondent no.3 insurer supported the award and
opposed the appeal. Appeal against respondent no.2 owner of
car is dismissed. On perusal of impugned judgment, it is seen
that tribunal on consideration of entire evidence on record
taking into account material discrepancies in the pleadings and
documents produced, proceeded to hold that claimant failed to
prove the accident and dismissed the claim petition.
8. According to claimant, accident occurred on
2.6.2007, when he was walking by the side of road, a car came
and dashed against him. But Ex.P.1 complaint is filed by him
only on 2.7.2007 i.e., after one month. Though claimant states
that he was under treatment during said period and his
admission in hospital was as a medico legal case, Ex.R.3 medico
legal case register extract produced by insurer indicates
description regarding history of injuries as he met with accident
with TVS Suzuki on 2.6.2007 at 7.00 p.m. Entry is on 2.6.2007
i.e., immediately after the accident, when claimant got admitted
himself to hospital for treatment. There is no explanation
regarding delay in filing the complaint. Complaint is filed one
month after the accident.
9. During the course of deposition, claimant sought to
explain the same by stating that owner of car had offered
settlement, after he resiled from the same, complaint came to
be filed. However there are no pleadings of the said effect.
There is no explanation regarding mentioning of accident caused
by TVS Suzuki motorcycle. Though claimant seeks to establish
accident by producing award under Employees Compensation
Act, on perusal of the same, it merely shows that car bearing
registration no.KA-34/M-3851 met with accident on 2.6.2007
and driver who sustained injuries had filed claim petition against
owner/insurer of the vehicle. There is no mention regarding any
other person or vehicle being involved in the accident.
10. Yet another factor to be noticed is that claimant
states that accident occurred while he was walking by the side
of road. But Ex.R.3 mentions about motorcycle which is
conspicuously absent in the complaint and also entire police
investigation records as well as in award in ECA No.551/2014.
Therefore, these documents would not improve case of claimant
as there are glaring material inconsistencies in the case of
claimant. Tribunal on rightful appreciation of the same has come
to conclusion and dismissed claim petition. No error, material
irregularity or perversity is pointed out for interference.
Appeal is dismissed.
Sd/-
JUDGE
Mrk/-
