Balabhim S/O Yashwant Shingate ... vs Mr Mahadev Bapurao Chavareand Anr
2021 Latest Caselaw 2736 Kant

                              1



            IN THE HIGH COURT OF KARNATAKA
                   KALABURAGI BENCH

           DATED THIS THE 9TH DAY OF JULY 2021

                          PRESENT
           THE HON'BLE MR.JUSTICE S.G.PANDIT
                             AND
           THE HON'BLE MR.JUSTICE M.G.S.KAMAL

MISCELLANEOUS FIRST APPEAL NO.200512/2015 (MV)

Between:

1.     Balabhim S/o Yashawant Shingate
       Age: 40 Years, Occ: Labour

2.     Shakuntala W/o Balabhim Shingate
       Age: 37 Years, Occ: Labour

       Both R/o Awasari, Tq. Indapur
       Dist. Poona

       Now residing at Yogapur Colony
       Vijayapur-586 101
                                                  ... Appellants

(By Sri Chandrakant Laxman Koujalagi, Advocate)

And:

1.     Mr. Mahadev Bapurao Chavare
       Age: Major, Occ: Owner of the Mahindra Bolero
       Pickup Jeep Bearing No.MH-13/A-7118
       (MH) Pin-413213

2.     The Manager
       Bajaj Allianz General Insurance Co. Ltd.
       Solapur
                                2



      Through the Manager
      Bajaj Allianz General Insurance Co. Ltd.
      Club Road, Madiwal Arcade
      Belgaum-590 001

3.    Yuvaraj S/o Shahaji Chavare
      Age: 22 Years, Occ: Driver
      R/o Taamadaag Pennur
      Tq. Mohol, Dist. Solapur (MH) Pin-413213

4.    Naasaheb S/o Dnyandev Chavare
      Age: Major, Occ: Hotel & Owner of the
      Motorcycle, R/o Penur, Tq. Mohol
      Dist. Solapur(MH) Pin-413213

5.    Nagnath Ramachandra Jadhav
      Age: Major, Occ: Owner of the Tractor
      No.MH-13/J-7085, R/o Penur, Tq. Mohol
      Dist. Solapur (MH) Pin-413213

6.    The Manager
      Insurer of the Tractor
      New India Assurance Company Ltd.
      Pandarpur Locally Ref/by New India
      Assurance Company Ltd., Gokul Road
      Vijapur-586 101

                                              ... Respondents
(Sri Sudarshan M., Advocate for R2;
 Sri S.S. Aspalli, Advocate for R6
 Notice to R1, R3 to R5 is held sufficient
 V.O.D. 23.11.2016)

       This Miscellaneous First Appeal is filed under Section
173 (1) of the Motor Vehicles Act, 1988, praying to set aside
the judgment and award dated 03.01.2015 passed in MVC
No.1021/2013 on the file of the Court of Principal Senior
Civil Judge and MACT No.V, Vijaypur at Vijaypur and allow
this appeal by granting compensation amount of
                             3



Rs.30,00,000/- only as claimed by the appellants before the
Tribunal.

       This appeal having been heard and reserved for
judgment on 29.06.2021, coming on for pronouncement of
Judgment this day, M.G.S.KAMAL, J., delivered the
following:-

                       JUDGMENT

This appeal under Section 173(1) of the Motor

Vehicles Act, 1988 (herein after referred to as ' the Act')

is filed by the claimants aggrieved by the judgment and

award dated 03.01.2015 passed by the Principal Senior

Civil Judge & MACT No.V, Vijayapur (hereinafter

referred to as 'the Tribunal') in MVC No.1021/2013.

2. Brief facts leading upto filing of present

appeal are that, on 10.05.2013 at about 8.00 p.m.,

deceased Ajay with one Nandakumar as pillion rider

was riding a motorcycle bearing Reg.No.MH-13/BJ-

1599 belonging to respondent No.4 on Chevare to

Yewati road, near Penur village. At that time, the driver

of Mahindra Bolero Pickup Jeep bearing Reg.No.MH-

13/AN-7118 (hereinafter referred to as 'Jeep') came

from opposite side i.e., Penur to Taamdaag Wasti in a

rash and negligent manner with its headlight on, due to

which the deceased Ajay could not see the road clearly

resulting in he dashing the Tractor which had been

parked by the side of the road. The said accident

resulted in death of the deceased Ajay and injuries to

Nandakumar.

3. Thereupon, the claimants being parents of

the deceased Ajay filed petition under Section 166 of the

Act seeking compensation of Rs.30 lakh on the ground

that the deceased Ajay was studying in 11th standard

and was also working part time as Supplier in a Hotel

and Dhaba thereby earning Rs.15,000/- per month and

was contributing the same for the family maintenance.

The untimely death of the deceased has caused distress

and hardship to the claimants. That the respondents

being the owners and insurers of motorcycle, Jeep and

Tractor, respectively involved in the accident were

jointly and severally liable to pay the compensation.

4. On service of notices, the respondent No.1 -

Owner of Jeep appeared through his counsel and filed

written statement and admitted that accident happened

due to focus light of the Jeep on 10.05.2013 at 8.00

p.m. while going towards Yewati to Chaware near

Pennur village. The accident and the death of the

deceased admitted. It is submitted that Jeep was

insured with respondent No.2 and the claimants were

entitled for compensation.

5. The respondent No.2 - Insurer of the Jeep

appeared through its counsel and filed written

statement inter alia contending that the accident had

taken place at Maharashtra and that claimants and

respondent No.1 are the native of Maharashtra State

therefore the Tribunal had no territorial jurisdiction to

try and decide the case. It was further contended that

respondent No.2 is not the insurer of the Mahindra

Bolero Pickup Jeep bearing Reg.MH-13/AN-7118. The

liability of this respondent was subject to subsistence of

insurance contract. That as per the police records, the

deceased was riding his motorcycle in a rash and

negligent manner and dashed to the parked Tractor and

caused the accident and that there is no connection

between the death of the deceased and the Jeep.

Further contended that the age, occupation, income of

the deceased and the relationship of the deceased with

the claimants was denied.

6. Though notices were served upon

respondent Nos.3 and 4, they did not appear and were

placed ex parte.

7. The respondent No.5 - owner of the Tractor

appeared through its counsel and filed written

statement denying the petition averments. It is denied

that the Tractor was parked on the left side of the road.

It was contended that it was due to rash and negligent

driving of the motorcyclist the accident has occurred.

The age, avocation and income of the deceased and the

relationship between the deceased and the claimants

was denied. It was contended that the Tractor was duly

insured with respondent No.6. Hence, as on the date of

accident, this respondent was not liable to pay the

compensation.

8. Respondent No.6 - Insurer of the Tractor

appeared through its counsel and filed written

statement and denied the petition averments. It was

contended that there was no involvement of the vehicle

bearing Reg.No.MH-13/J-7085. It was further

contended that the deceased was riding the motorcycle

in a rash and negligent manner dashed against the

Tractor which was stationed on the extreme left side of

the road. It was admitted that the accident occurred

due to mistake, rash and negligent driving of the Jeep.

It was contended that the respondent Nos.5 and 6 are

not the proper parties to the petition. Hence, sought for

dismissal of the petition.

9. It is necessary to note that by filing a memo

on 14.11.2014, the claimants have got the petition

dismissed as against respondent Nos.5 and 6, the owner

of the tractor and insurer.

10. Based on the pleadings, the Tribunal has

framed the issues and recorded the evidence. On behalf

of the claimants, two witnesses namely Mr. Balabheem

the father of the deceased and Nandakumar, the pillion

rider were examined as P.Ws.1 and 2, respectively, and

got exhibited in all 13 documents as Exs.P.1 to 13. On

the other hand, on behalf of respondent No.2, one Mr.

Muttappa, the Law Officer examined as R.W.1 and got

exhibited 3 documents at Exs.R.1 to 3.

11. The Tribunal after scrutiny of the material

both oral and documentary has dismissed the petition

holding that the accident occurred due to rash and

negligent riding of the rider of the motorcycle

exonerating the insurance company. Being aggrieved

by the judgment and award impugned, the present

appeal is filed by the claimants.

12. Learned counsel for the claimants reiterating

the grounds urged in the appeal memo submitted that

the Tribunal grossly erred in dismissing the claim

petition on the premise that the deceased himself was

negligent in causing the accident resulting in his death.

He submitted that in the light of the material made

available attributing the negligence on the part of the

deceased is causing accident was unjustified. He

further submitted that admittedly Tractor had been

parked on the road and that the accident occurred at

8.00 p.m. while Jeep was admittedly coming from the

opposite direction with high voltage head light, which

caused deficient visibility to the deceased due to which

he had dashed the hind side of the Tractor. He further

submitted that this being the admitted fact, the

Tribunal ought to have fixed the negligence on the part

of the Tractor and the Jeep. He further submitted that

P.W.2 being the pillion rider of the vehicle is the

eyewitness to the incident and has been examined as

P.W.2. The Tribunal ought to have taken into

consideration the evidence of P.W.2. He further

submitted that the Tribunal erred in not granting any

compensation to the claimants on the premise that the

deceased was minor and was prohibited from riding the

motorcycle. Hence, seeks for allowing of the appeal.

13. On the other hand, learned counsel for the

respondents justify the impugned judgment and award

passed by the Tribunal holding that the deceased being

a minor was not entitled to ride the motorcycle.

Further, he being disentitle himself, no compensation

can be awarded and sought for dismissal of the appeal.

14. Heard the learned counsel for both the sides

and perused the records.

15. The only point that arises for consideration

in this appeal is whether the Tribunal was justified in

holding that the accident occurred due to the negligence

on the part of the deceased and as such the claimants

are not entitled for compensation?

16. The Tribunal while arriving to conclusion

that the accident in question was not due to the rash

and negligent driving of Jeep by its driver, but due to

rash and negligent riding of the deceased himself has

relied upon the complainant's statement, panchanama

and charge-sheet. It appears that a criminal case was

registered and charge sheet was filed against the

deceased himself and no criminal case was registered

filed against the driver of the Jeep or the driver of the

Tractor.

17. P.W.2, namely Mr. Nandkumar was the

pillion rider and was present at the spot and at the time

of the accident. He has filed affidavit to the effect that

the deceased and himself were proceeding on a

motorcycle and when they reached near Pennur village,

Jeep came from the opposite side with high focus light

due to which the rider could not see the road and ended

up dashing the backside of the stationed tractor

resulting in he sustaining the injuries and the death of

the deceased at the spot.

18. In the cross-examination of P.W.2, to the

suggestions regarding non mentioning of focus light of

the Jeep and its number he has expressed ignorance.

19. In the objection statement, respondent No.2

- Insurer of the Jeep has denied the involvement of the

Jeep in the accident and has sought for dismissal of the

petition. Interestingly, the respondent No.1 owner of

the Jeep has admitted that the accident happened due

to Jeep focus light on 08.05.2013 at about 8.00 p.m.

Respondent No.1, owner of the Jeep is not an

eyewitness.

20. In the light of the aforesaid pleading and

evidence, it is necessary to analyze the evidence

considered by the Tribunal to hold that the deceased

was negligent in riding the motorcycle and he was liable

for the accident. The Tribunal has relied upon the

complaint, charge sheet and panchanama to come to

the conclusion that the deceased who was riding the

motorcycle himself was negligent causing the accident

and dismissed the claim petition.

21. There is no dispute with regard to the

motorcycle ridden by deceased Ajay with P.W.2 as

pillion rider hitting the Tractor parked on the road side

resulting in the death of the deceased. Though, P.W.2

in his evidence has stated that when they reached near

Pennur Village, a Tractor belonging to respondent No.5

was parked on the road side and at that time Jeep

belonging to the respondent No.1 had crossed from the

opposite direction with high beam head light affecting

the visibility of the deceased. It is to be noted that

Ex.P1 is the complaint dated 10.05.2013 given by

respondent No.4 - Nanasaheb Dyandev Chavare, who is

not the eyewitness. Translation of the said complaint is

at Ex.P.2. In the said complaint, it is stated by

Respondent No.4 - Nanasaheb Dyandev Chavare that on

10.05.2013 he received a call from his neighbor

informing him above his nephew Ajay Balbhim Shingate

and his relative Nandakumar Bapurao Chavare meeting

with accident resulting in death of Ajay Balbhim

Shingate and injuries to Nandakumar Bapurao

Chavare. There is no mention in the said complaint

regarding the role of Jeep belonging to the respondent

No.1.

22. Ex.P.3 is the statement dated 11.05.2013 of

respondent No.3 - Yuvaraj Shahaji Chaware, the Driver

of the Jeep belonging to respondent No.1, wherein he

has stated on 10.05.2013 while he was driving the Jeep

returning home from Pennur village at 8.00 p.m. near

agriculture land of Sarjerao Chavare, a Tractor was

parked due to puncture of the rear side wheel and while

passing through the Tractor and at that time one double

seat rider of motorcycle came from opposite direction in

a high speed and because of the focus lights of his

Pickup Jeep, the rider of the Motorcycle could not see

the road side stationed Tractor and the rider of the said

motorcycle went and dashed from the behind of the

Tractor and he heard big noise. He further stated that

he went away without stopping Jeep out of fear and that

in the late night he learnt that the nephew of his relative

Ajay Balbhim Shingate and Nandakumar Bapurao

Chavare were the persons involved in the accident.

23. From the reading of the aforesaid Exs.2 and

4 being the complaint given by respondent No.4 who is

the owner of the motorcycle and the statement of

respondent No.3, who is the driver of the Jeep, it is too

much of a co-incidence to rely on the story that the

deceased and the pillion rider happen to be the nephew

and relative of the respondent No.4, whose motorcycle

they were using at the time of accident and respondent

No.3 being the relative of respondent No.4 was passing

by the spot, where the Tractor was stationed with high

beam light causing vision disability to the rider of the

bike resulting the accident. There is no mention in the

complaint by the respondent No.4 with regard to the

Jeep driven by respondent No.3 belonging to respondent

No.1 passing through the place of incident.

24. The respondent Nos.3 and 4 being the driver

of jeep and the complainant have remained absent and

were placed ex parte. Petition against respondent Nos.5

and 6, being the insured and insurer of the Tractor got

dismissed petition at the instance of the claimants vide

order dated 14.11.2014. Respondent No.1 the owner of

the Jeep has filed the statement of objection

unequivocally admitting the petition averments. In view

of the above factual aspect of the matter and the

objection statement filed by respondent No.1 admitting

the petition averments can only be for the purpose of

helping the claimants to claim compensation from the

insurance company.

25. In the aforesaid peculiar circumstances, the

findings arrived at by the Tribunal to the effect that

there is collusion between the petitioners and the

respondent Nos.1, 3 and 4, who happen to be relatives

of claimants and deceased Ajay and the pillion rider

P.W.2, appears to be justified.

26. Another aspect of the matter is admittedly

the deceased and the pillion rider P.W.2 were minor at

the time of the accident. The deceased Ajay who was

riding the motorcycle did not have permission or

authority under the law to ride the motorcycle as he was

minor. Respondent No.4 who is the owner of the

motorcycle could not have permitted the deceased to

ride the motorcycle. In view of the aforesaid conduct of

the parties, the conclusion arrived at by the Tribunal

appears to be just and proper requiring no interference

in the matter.

27. For the aforesaid reasons, we are of the

considered view that the appellants have not made out

any grounds warranting interference with the impugned

judgment and award passed by the Tribunal.

Accordingly, appeal is dismissed.

Sd/-

JUDGE

Sd/-

JUDGE BL