The Branch Manager vs Leslia Carmine Almeida
2021 Latest Caselaw 875 Kant

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

    DATED THIS THE 15TH DAY OF JANUARY 2021

                    BEFORE

THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD

           MFA No. 6503 OF 2013(MV)

BETWEEN:

THE BRANCH MANAGER
UNITED INDIA INSURANCE
COMPANY LIMITED
SHREE VITTAL NH-17, MAIN ROAD
SURATHAKAL, MANGALORE
REPRESENTED BY ITS NEAREST
DIVISIONAL MANAGER
DIVISIONAL OFFICE
OPP: SREE NIDI MEDICAL
NEAR CHITTARANJAN CIRCLE
UDUPI.

NOW BY

DIVISIONAL MANAGER
UNITED INDIA INSURANCE CO. LTD.,
JEWEL PLAZA, 1ST FLOOR,
MARUTHI VEETHIKA
UDUPI-576101
BY ITS MANAGER.

                                   ... APPELLANT

(BY SRI. O.MAHESH, ADV. )
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AND

1.    LESLIA CARMINE ALMEIDA
      AGED ABOUT 41 YEAR
      W/O PREMKUMAR JOHN ALMEIDA.

2.    LENIN JOHN ALMEIDA, MINOR
      AGED ABOUT 14 YEARS
      S/O PREMKUMAR JOHN ALMEIDA
      REPRESENTED BY MOTHER
      LESLIA CARMINE ALMEIDA.

      BOTH ARE RESIDING AT
      "JONLAVI VILLA"
      HANDDI, BRAHMAVARA
      UDUPI TALUK & DISTRICT-576 101.

3.    UMESH HEGADE
      AGE 37 YEARS
      S/O RAMACHANDRA HEGDE
      BULK CARRIES, K.K. TOWERS
      MRPL ROAD, KANA
      SURATHKAL, MANGALORE TALUK-575001.
                                ... RESPONDENTS

(BY SRI.K.SHASHIKANTH PRASAD, ADV. FOR R1:
R2 MINOR REPRESENTED BY R1:
R3 SERVED AND UNREPRESENTED)

    THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD
DATED:30.03.2013 PASSED IN MVC NO.747/2011 ON
THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE
AND    MEMBER,    ADDITIONAL   MACT,   UDUPI,
AWARDING COMPENSATION OF RS.5,98,850/- WITH
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INTEREST AT 6% P.A. FROM THE DATE OF PETITION
TILL REALIZATION.

    THIS MFA COMING ON FOR ADMISSION,
THROUGH VIDEO CONFERENCE THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                       JUDGMENT

This appeal under Section 173(1) of the Motor

Vehicles Act, 1988 (hereinafter referred to as 'the Act',

for short) has been filed by the Insurance Company

being aggrieved by the judgment dated 30.3.2013

passed by the Motor Accident Claims Tribunal.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 26.2.2011 the deceased

Pritesh Joshua D'Almeida was riding the motorcycle

bearing registration No.KA-20-V-872 along with

claimant in MVC 748/2011 as pillion rider from Udupi

side towards Kundapura side near Kumragodu

Junction, at that time, a goods tanker bearing

registration No.KA-19-B-9691 which was being driven

in a rash and negligent manner, dashed against the

motorcycle of the deceased. As a result of the

aforesaid accident, the deceased sustained grievous

injuries and succumbed to the injuries.

3. The claimants filed a petition under Section

166 of the Act on the ground that the deceased was

aged about 19 years at the time of accident and was

studying in II PUC. The claimants claimed

compensation to the tune of Rs.15,27,560/- along

with interest.

4. On service of summons, the respondent

No.2 appeared through counsel and filed written

statement in which the averments made in the

petition were denied. It was pleaded that the petition

itself is false and frivolous in the eye of law. It was

further pleaded that the accident was due to the rash

and negligent riding of the motorcycle by the

deceased himself. The deceased has contributed to

the accident. The driver of the offending vehicle did

not possess valid driving licence as on the date of the

accident. Hence, he sought for dismissal of the

petition. The respondent No.1 did not appear inspite

of service of notice and was placed ex-parte.

5. On the basis of the pleadings of the parties,

the Claims Tribunal framed the issues and thereafter

recorded the evidence. The claimants, in order to

prove their case, examined claimant No.1 as PW-1

and eye witness as PW-2 and got exhibited documents

namely Ex.P1 to Ex.P15. On behalf of respondents,

neither any witness was examined nor any document

was produced. The Claims Tribunal, by the impugned

judgment, inter alia, held that the accident took place

on account of rash and negligent driving of the

offending vehicle by its driver, as a result of which,

the deceased sustained injuries and succumbed to the

injuries. The Tribunal further held that the claimants

are entitled to a compensation of Rs.5,98,850/- along

with interest at the rate of 6% p.a. and directed the

Insurance Company to deposit the compensation

amount along with interest. Being aggrieved, this

appeal has been filed.

6. The learned counsel for the Insurance

Company has contended that the accident occurred

due to contributory negligence on the part of the

deceased also. He was riding the motorcycle with high

speed and tried to over take the vehicle and dashed to

the offending vehicle and caused accident. The

Tribunal has failed to consider this aspect of the

matter.

Secondly, the Tribunal ought to have seen that

PW-2 alleged eye witness, did not speak of insured

tanker overtaking an auto at the time of the alleged

accident while PW-3 pillion rider of motorcycle, speak

of presence of auto at the place of alleged accident

and only handle of motorcycle coming in contact with

that of tanker. The Tribunal has failed to consider

these inconsistent material evidence as to manner of

alleged accident.

Thirdly, the Tribunal based on the police records,

has held that the accident has occurred due to rash

and negligent driving of the goods tanker. PW-3,

pillion rider. who is an eye witness to the accident has

not spoken about the manner of the accident. The

finding of the Tribunal is unsustainable.

Fourthly, he contended that the rear portion of

the goods tanker hit the right handle of the

motorcycle and therefore, it is clear that the

deceased/rider of the motorcycle was also negligent.

Hence, he sought for allowing the appeal.

7. On the other hand, the learned counsel for

the claimants has contended that claim petition filed

by the pillion rider has been allowed and Insurance

Company has not challenged the same. The Insurance

Company has satisfied the award. He further

contended that immediately after the accident, the

police have registered FIR against the driver of the

offending vehicle and filed charge sheet against the

driver of the offending vehicle. He further contended

that PW-2 is the eye witness to the accident and he

has specifically stated that accident occurred solely

due to the rash and negligent driving of the offending

vehicle. He further contended that it is very clear from

the records, the driver of the goods tanker has come

to the extreme right side and dashed against the

motorcycle and caused accident. There is no error in

the finding of the Tribunal. Hence, he sought for

dismissal of the appeal.

8. Heard the learned counsel for the parties

and perused the records.

9. The specific case of the claimants is that on

26.2.2011, the deceased Pritesh Joshua D'Almeida

was riding the motorcycle bearing registration No.KA-

20-V-872 from Udupi side towards Kundapura side

near Kumragodu Junction at that time, a goods tanker

bearing registration No.KA-19-B-9691 which was

being driven in a rash and negligent manner, dashed

against the motorcycle of the deceased. As a result of

the aforesaid accident, the deceased sustained

grievous injuries and succumbed to the injuries.

The claimants to prove their case have examined

claimant No.1 as PW-1, an eye witness to the accident

as PW-2 and pillion rider as PW-3 and produced 15

documents. Immediately after the accident, the eye

witness lodged complaint and police registered FIR

against the driver of the goods tanker under Sections

279, 338 and 304A of IPC. The police have drawn spot

mahazar and rough sketch. It is very clear from the

records that the motorcycle was coming from South to

North and goods tanker was coming in the opposite

direction from North to South. The total width of the

road was 24 feet. The accident has occurred 4 feet

from the edge of the road on the left side and it is

clear that the goods tanker came in a high speed and

dashed against the motorcycle. PW-2 eye witness has

categorically stated that the accident has occurred

solely due to rash and negligent driving of the goods

tanker. On the other hand, the Insurance Company

has not examined any witness to disprove the same.

Therefore, taking into consideration the evidence

of the parties and Ex.P-1 FIR, Ex.P-2 spot mahazar,

Ex.P-4 eye sketch, Ex.P-5 police records, I am of the

opinion that the Tribunal has rightly held that accident

has occurred solely due to rash and negligent driving

of the offending tanker by its driver. Hence, the

insurer of tanker is liable to pay compensation to the

claimants.

10. Accordingly, the appeal is dismissed. The

judgment and award of the Tribunal is confirmed.

Amount in deposit is ordered to be transferred to

the Tribunal.

Sd/-

JUDGE

DM