Natraj D/O Kallappa vs Varshad S/O Vinayakrao Deshpande ...
2022 Latest Caselaw 3650 Kant

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          IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

       DATED THIS THE 4TH DAY OF MARCH, 2022

                         BEFORE

     THE HON'BLE MR.JUSTICE ASHOK S. KINAGI


               MFA No.30616/2013 (MV)

Between:

Natraj S/o Kallappa,
Age: 24 Years, Occ: Private Service,
R/o Hallikhed-B Tq: Humanabad,
Dist: Bidar, Now at Kangankot,
Bidar-585 401.
                                             ... Appellant
(By Smt.Veerani V.Nandi, Advocate for
 Sri Ravi B.Patil, Advocate)

And:
1.     Varshad S/o Vinayakrao Deshpande
       Age: Occ: Vehicle Owner
       Regn. No.KA-38, H-9605
       R/o H.No.7-3-80 Bheem Nagar
       Bidar, Dist: Bidar-585 401

2.     The Branch Manager
       Oriental Insurance Company Ltd.
       Kamshetty Complex Shop No.3
       Near Bus Stand
       Bidar-585 401
                                          ... Respondents
(By Smt. Preeti Patil Melkundi, Advocate for R2;
Notice to R1 served)
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       This Miscellaneous First Appeal is filed under Section
173(1) of the MV Act praying to set aside the judgment
and award dated 10.10.2012 passed by Presiding Officer,
Principal M.A.C.T. & FTC-I at Bidar and consequently allow
the present appeal. In alternative to the prayer made
above, this Hon'ble Court may be pleased to remand the
matter back to the Tribunal for re-appreciation and
consideration of the matter afresh, thereby allowing the
appellant to lead such evidence in support of his claim and
etc.


       This appeal coming on for hearing, this day, the
Court delivered the following:-

                        JUDGMENT

This appeal is filed under Section 173(1) of the

Motor Vehicles Act, 1988 (hereinafter referred to as

'the Act', for short) by the claimant aggrieved by the

judgment and award dated 10.10.2012 passed in MVC

No.414/2010 by the Motor Accident Claims Tribunal

and Fast Track Court-I, at Bidar.

2. For the sake of convenience, parties are

referred to as per their ranking before the Claims

Tribunal. Appellant is the claimant and respondents

are respondents before the Tribunal.

3. Facts giving rise to filing of the appeal

briefly stated are that on 31.12.2009 at 9.30 p.m., he

alongwith his friend Mahadev were proceeding on their

motorcycle TVS Star City on Hallikhed-Kheni Ranjol

Road near DCC Bank Hallikhed-B, at that time, one

Hero Honda Splendor rider rode his vehicle bearing

registration No.KA-38/9605 from Kheni Ranjol side in

a high speed, rash and negligent manner and violently

dashed against the petitioner. Thereafter, he ran away

from the spot with his motorcycle. Due to said

accident, petitioner sustained double fracture of Tibia

of right leg and other injuries on forehead and right

hand and internal injuries. The petitioner has spent

huge amount for his medical treatment.

3.1 The petitioner filed a petition under Section

166 of the Act seeking compensation for the injuries

sustained in the road traffic accident.

     3.2   Respondent      No.1           is   the   owner      and

respondent    No.2   is   the       insurer     of   the   vehicle.

Respondents    are   jointly        and    severally   liable   for

payment of compensation.

3.3. Respondent No.1 filed written statement

denying the averments made in the claim petition. It

is contended that the petitioner in order to claim the

compensation with the active collusion of police have

got registered a false criminal case against the rider of

the motorcycle. It is further contended that FIR has

been registered against the unknown vehicle. But

thereafter they have created the bogus document to

involve the subject vehicle. Respondent No.2 filed

written statement denying the averments made in the

claim petition. It is contended that respondent No.1 in

collusion with the police got the case registered by

involving the subject vehicle wrongly. It is contended

that the petitioner himself lost the control over his

vehicle and fell down and there is no evidence of any

vehicle coming from the opposite direction. The

subject vehicle is seized after three months of the

accident. It is contended that since the petitioner has

claimed that the accident has occurred in between two

vehicles due to their contributory negligence and in

view of the fact that the owner and insurer of TVS

Star City motorcycle are also necessary parties to

adjudicate the matter in question properly, hence,

prayed to dismiss the claim petition for want of non-

joinder of necessary parties. The Tribunal on the basis

of pleadings framed the following issues.

"i. Whether the claimant proves that on 31.12.2009 the claimant and his friend Mahadev were proceeding on a

motor vehicle TVS Star City on proper side on Hallikhed-Kheni Ranjol road near DCC Bank Hallikhed (B) at 9.30 pm one Hero Honda Splender rider bearing No.KA-38-9605 came from Kheni Ranjol side in a high speed, rash and negligent manner violently dashed to the claimant as a result claimant sustained grievous injuries, double fracture of tibia of right leg other injuries on forehead and right hand and internal injuries?

ii. Whether the claimant proves that, he was earning Rs.5,000/- per month but due to accident he has become disabled?

iii. Whether the claimant is entitled to the compensation? If so, how much and from whom?

iv.    Whether the respondent No.2 proves
       that   due   to       violation   of   policy

conditions, the Insurance company is not liable to pay the compensation?

4. The petitioner, in order to prove his case,

examined himself as P.W.1 and in order to prove the

disability, examined the doctor as P.W.2 and got

exhibited documents namely Ex.P1 to Ex.P15. On

behalf of the respondent No.2, no oral or documentary

evidence has been adduced. The Tribunal, after

recording the evidence and considering the material

on record, by the impugned judgment, held that the

petitioner has failed to prove that on 31.12.2009 he

and his friend were proceeding on a motorcycle on

proper side of the road near DCC Bank, Hallikhed-B at

9.30 p.m., and also failed to prove that the vehicle in

question came from Kheni-Ranjol side in a high speed

in rash and negligent manner and violently dashed to

the petitioner, as a result, the petitioner sustained

grievous injuries, double fracture of tibia of right leg

etc., and further held that the issue Nos.2 to 4 does

not arise for consideration and finally dismissed the

claim petition. Hence, this appeal is filed.

5. Heard the learned counsel for the

appellant/claimant and the learned counsel for the

respondent No.2.

6. The learned counsel for the petitioner

submits that the petitioner met with an accident and

sustained injuries and further in order to establish that

the accident was occurred due to rash and negligent

driving of the rider of the motorcycle, he has produced

the police papers. He further submits that the Tribunal

without considering the document produced by the

petitioner has passed the impugned judgment. Hence

he prays to allow the appeal.

7. Per contra, learned counsel for respondent

No.2, Insurance Company submits that FIR was

registered against the unknown vehicle and further

petitioner and respondent No.1 in collusion with the

police have got created the documents and falsely

implicated the vehicle in question. He further submits

that the Tribunal was justified in dismissing the claim

petition. Hence, on these grounds, she prays to

dismiss the appeal.

8. Heard the learned counsel for the parties

and perused the records.

9. It is the case of the petitioner that on

31.12.2009, at about 9.30 pm he along with his friend

Mahadev was proceeding on their motorcycle at that

time, one Hero Honda Splendor rider rode his vehicle

bearing registration No.KA-38/9605 from Kheni Ranjol

side in a high speed, rash and negligent manner and

dashed against the petitioner. Thereafter, the rider of

the motorcycle ran away from the spot along with his

vehicle. In the said accident, the petitioner has

sustained injuries. In order to establish that the

accident was occurred due to rash and negligent riding

of the rider of the motorcycle, the petitioner has

produced the police papers marked as Ex.P1 to P7. At

the time of registering the criminal case/FIR P.W.1

has deposed that in the course of cross-examination

as on the date of the accident the police have

recorded the statement. Thereafter, again he has

deposed that after one month, police have recorded

his statement. From the perusal of evidence of P.W.1

it is clear that he admits that he has not stated in the

complaint that the vehicle came from the front side

and hit the vehicle on which the petitioner was

travelling. Further, he admits that rider of the

offending vehicle ran away from the spot and further

he has admitted that he has not stated the number of

the vehicle. Further, he has pleaded his ignorance on

which date he informed the police about number of

the said vehicle. He further deposed that after lapse of

so many days, he informed about the number of the

vehicle. From the perusal of the evidence led by the

petitioner and also documents produced by him, there

is no consistency. Further, the petitioner has not

examined any eye-witness to establish that the

accident occurred due to rash and negligent riding of

the rider of the alleged offending motorcycle. The

Tribunal after considering the evidence of P.W.1 and

also documents produced by the petitioner has

recorded a finding that there is no consistency in

between the evidence of P.W.1 and the documents.

Further there is no evidence on record to link the

subject vehicle to the alleged accident. Further the

petitioner has failed to establish what is source for the

police to rope the subject vehicle on 03.03.2010 after

three months 90 days of the accident is not

forthcoming. P.W.1 has stated that he came to know

about the owner of the subject vehicle involved in the

accident through the owner of the grocery shop. The

petitioner has not examined the owner of the grocery

shop who is the material witness for the petitioner to

establish the alleged accident. The Tribunal after

considering the entire material on record was justified

in rejecting the claim petition. The petitioner has not

made out any ground for interference in the impugned

judgment and award. Hence, I do not find any ground

to interfere with the impugned judgment and award

passed by the Tribunal.

10. In view of the above discussion, I proceed

to pass the following:

ORDER

The appeal is dismissed.

Sd/-

JUDGE VNR