Smt Shobha G Bhat vs Smt Sharmila Achary
2021 Latest Caselaw 3800 Kant

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  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

    DATED THIS THE 10TH DAY OF NOVEMBER, 2021

                       BEFORE

       THE HON'BLE MR. JUSTICE E.S.INDIRESH

              M.F.A. NO.2447/2015 (MV)

BETWEEN:

SMT. SHOBHA G BHAT
AGED 52 YEARS
W/O LATE K G BHAT
R/AT "AKSHATHA"
7TH CROSS, BEJAI NEW ROAD
BEJAI, MANGALURU-575 002.
                                         ... APPELLANT
(BY SRI VINAY N, ADVOCATE FOR
 SRI P N MANMOHAN, ADVOCATE)

AND:

       1. SMT. SHARMILA ACHARY
          MAJOR
          W/O DINESH ACHARY
          SUDBHAVA NAGAR
          BANGLAGUDDE HOUSE
          KUKKUNDOOR
          KARKALA TALUK-576 117
          KARNATAKA.

       2. SHRIRAM GENERAL INSURANCE
          COMPANY LIMITED
          E-8, EPIP RIICO, SITAPURA
          JAIPUR
          RAJASTHAN-30 2022.
                                      ... RESPONDENTS
(BY SRI O MAHESH, ADVOCATE FOR R2;
R1 IS SERVED)
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     THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF MOTOR VEHICLES ACT,
AGAINST THE JUDGMENT & AWARD DATED 27.11.2014
PASSED IN MVC NO.1712/2011 ON THE FILE OF THE I
ADDITIONAL SENIOR CIVIL JUDGE AND MOTOR ACCIDENT
CLAIMS TRIBUNAL, MANGALURU, D.K. DISMISSING THE
CLAIM PETITION FOR COMPENSATION.

     THIS APPEAL COMING ON FOR ADMISSION THIS
DAY, THE COURT, DELIVERED THE FOLLOWING:

                        JUDGMENT

This appeal is preferred by the claimant challenging

the judgment and award dated 27.11.2014 passed in MVC

No. 1712/2011 on the file of the I Additional Senior Civil

Judge and Motor Accident Claims Tribunal, Mangaluru, D.K.

(for short hereinafter referred to as "Tribunal"), seeking

enhancement of compensation.

2. For the sake of convenience, the parties in this

appeal shall be referred to in terms of their status and

ranking before the Tribunal.

3. It is the case of the claimant that, she is the R.C.

owner of the car bearing registration No.KA-19/Z-9625 and

on 29.06.2011 at 5.00 p.m., when the said car was being

driven, at that time a van bearing registration No. KA-20/A-

3746 being driven by its driver in a rash and negligent

manner and dashed to the car belonging to the claimant

and as a result of the same, the car was severely damaged

and as such the claimant has assessed the damage caused

to the car at Rs.2,33,140/- and also it is stated in the claim

petition that pursuant to the accident, the claimant has sold

the car for a sum of Rs.90,000/-. It is also stated in the

claim petition that the first respondent is the R.C. owner

and second respondent is the insurer of the vehicle and

they jointly and severally liable for compensation.

4. After service of summons, 1st respondent

was placed ex-parte and 2nd respondent entered

appearance and filed detailed written statement

denying the averments made in the claim petition. On

the basis of the rival pleadings, the Tribunal has

formulated issues for its consideration. In order to

establish the case, claimant examined three witnesses

as PW1 to PW3 and produced 10 documents and same

were got marked as Exs.P1 to P10. On the other hand,

respondent examined two witnesses as RW1 and RW2

and produced 5 document and same were got marked

as Exs.R1 to R5. The Tribunal, after considering the

material on record, by its judgment and award dated

27.11.2014 dismissed the claim petition. Being

aggrieved by the same, the claimant has presented

this appeal, seeking enhancement of compensation. I

have heard, Sri. Vinay. N, learned counsel appearing

for the appellant and Sri. O. Mahesh, learned counsel

appearing for respondent No.2-Insurance Company.

5. Sri. Vinay. N, learned counsel appearing for

the appellant submitted that, the finding recorded by

the Tribunal dismissing the claim petition is on the

erroneous assumption of the fact and same is without

considering the 'B' Register Extract produced at Ex.P10

which clearly establish the fact that the vehicle in

question was transferred by the appellant in favour of

one D.M.Junaid on 23.11.2011 and he further

contended that in order to assess the damage caused

to the vehicle in question, claimant has examined the

surveyor as PW2 and his report was not properly

assessed by the Tribunal and as such, sought for

interference in this appeal. He further submitted that

appellant herein has filed application in IA.I of 2015

under Order XLI Rule 27 of Code of Civil Procedure and

produced two documents namely original

acknowledgment dated 23.07.2011 issued by

S.Nooruddin, stating about the selling of the car in

question and also letter dated 13.02.2015 issued by

the one S. Nooruddin, stating that she had received

Rs.90,000/- as sale consideration amount insofar as

the car is concerned. Accordingly, he sought for

interference of this Court.

6. Sri. O.Mahesh learned counsel for

respondent No.2 contended that, the Tribunal after

considering the material on record, has rightly

dismissed the claim petition and therefore, no

interference is required in this appeal.

7. Heard the learned counsel appearing for the

parties and perused the finding recorded by the

Tribunal. Perusal of the record would indicate that the

car belonging to the claimant bearing registration

No.KA-19/Z-9625 was damaged on account of the

accident occurred on 29.06.2011, however, in order to

ascertain the damage caused to the said vehicle, the

claimant has examined the authorised Chevrolet car

Assessor-Chittaranjana. S (PW2), who had surveyed

the car and estimated the total loss at Rs.2,33,140.16

paise and also it is forthcoming from the documents,

the market value of the car was Rs.2,40,000/- as on

the date of the accident. However, it is not disputed

that the said car was sold in favour of Nooruddin for a

sum of Rs.90,000/- by the claimant. In this regard, I

have carefully considered the evidence of PW1 and

PW2 as well as the evidence of RW2. It is also

forthcoming from the evidence of PW1 that claimant

admitted in the cross-examination that she has not

produced any claim letter from the Insurance Company

in which she had insurance policy towards vehicle in

question. Perusal of Ex.P6 would indicate that the

claimant has not produced any relevant document as

required under Rule 21 of Central Motor Vehicles Rules,

1989 which provides for the Transfer of ownership. If

at all, the vehicle in question is sold in favour of the

Nooruddin as stated by the claimant, there was no

impediment for the claimant to produce Form No.29 or

30, to prove factum of Transfer of ownership in favour

of the intended purchaser. In that view of the matter,

the finding recorded by Tribunal that if the vehicle was

damaged and was sold on scrap value there must be

cancellation of registration certificate from RTO

authorities or Transfer of ownership as required under

Rule 55 of Central Motor vehicle Rules 1949 as the

case may be. In view of the same, the case of the

claimant cannot be accepted. I have also re-

appreciated the evidence of PW2 and PW3. Though

PW2 has assessed the total damage to the car at 75%,

however, the Tribunal after considering the said

aspect, had come to a conclusion that, the front side of

the vehicle is not damaged, and also arrived at a

conclusion that no portion of the vehicle was damaged

as alleged by the claimant and accordingly declined to

award compensation in the claim petition. The Tribunal

has also appreciated the evidence of PW2 and arrived

at the conclusion that the same cannot be considered

to assess the total damages of the vehicle as

Rs.2,33,140/- and therefore, declined to grant relief to

the claimant.

8. Having re-appreciated the entire evidence on

record, since there is no proper damage to the Car

which has been assessed by PW2, as stated by the

claimant, the conclusion arrived by the Tribunal is just

and proper which do not call for any inference in this

appeal. In the result, appeal fails and accordingly,

dismissed.

Sd/-

JUDGE

SB