The Divisional Manager United ... vs Vijay S/O Bhagawan Bhunjakar And ...
2022 Latest Caselaw 4181 Kant

                            1




         IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

     DATED THIS THE 11TH DAY OF MARCH, 2022

                         BEFORE

     THE HON'BLE MR.JUSTICE ASHOK S. KINAGI

              MFA NO.31599/2013 (MV)
                       C/W
                MFA NO.31598/2013

In MFA No.31599/2013

Between:

The Divisional Manager,
United India Insurance Co. Ltd.
Sangam building, S.S.Front Road,
Bijapur, represented herein
By its Divisional Manager, Jawali Complex,
Super Market, Gulbarga.
                                              ... Appellant
(By Sri.Shivanand Patil, Advocate)
And:
1.   Pratibha W/o Vijay Bhunjakar,
     Age: 35 years, Occ: Private Service,
     Tailoring & House hold,
     R/o Keerti Nagar, Bijapur,
     Tq. & Dist. Bijapur-586 101.
2.    Mr. Maruti S/o Tulshiram Bankar,
      Age: 48 years, Occ: Business,
      R/o Dighanchi, Tq: Atpadi, Dist: Sangli,
      State Maharashtra.
                                           ... Respondents
(By Sri.S.S.Mamadapur, Advocate for R1;
Notice to R2 served)
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     This Miscellaneous First Appeal is filed under Section
173(1) of the MV Act, praying to call for the records and
hear the parties and set aside the judgment and award
dated 17.11.2012 in MVC No.1770/2010 on the file of the
Motor Accident Claims Tribunal No.V Bijapur and
consequently dismiss the claim petition by allowing the
appeal.


In MFA No.31598/2013

Between:

The Divisional Manager,
United India Insurance Co. Ltd.
Sangam Building, S.S.Front Road,
Bijapur, represented herein
By its Divisional Manager, Jawali Complex,
Super Market, Gulbarga.
                                                 ... Appellant
(By Sri.Shivanand Patil, Advocate)

And:

1.     Vijay S/o Bhagawan Bhunjakar,
       Age: 37 years, Occ: Private Service,
       Manager in Pepsi Company,
       R/o Keerti Nagar Bijapur,
       Tq. & dist: Bijapur-586 101.

2.     Mr. Maruti S/o Tulshiram Bankar,
       Age: 48 years, Occ: Business,
       R/o Dighanchi, Tq: Atpadi,
       Dist: Sangli, State Maharashtra.

                                              ... Respondents
(By Sri.S.S.Mamadapur, Advocate for R1;
By Sri. R.S.Lagali, Advocate for R2)
                               3




     This Miscellaneous First Appeal is filed under Section
173(1) of the MV Act, praying to call for the records and
hear the parties and set aside the judgment and award
dated 17.11.2012 in MVC No.1769/2010 on the file of the
Motor Accident Claims Tribunal No.V Bijapur and
consequently dismiss the claim petition by allowing the
appeal.

      These appeals coming on for hearing, this day, the
Court delivered the following:-


                      JUDGMENT

These appeals under Section 173(1) of the Motor

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

for short) have been filed by the respondent No.2-

Insurance Company being aggrieved by the judgment

dated 17.11.2012 passed in MVC Nos.1769 and 1770

of 2010 by the Motor Accident Claims Tribunal-V,

Bijapur.

For the sake of convenience, parties are referred

to as per their ranking before the Claims Tribunal.

Appellant is respondent No.2, claimant in MFA

No.31599/2013 is claimant No.1 and respondent No.2

is respondent No.1 before the tribunal. These appeals

arise out of the common judgment passed by the

tribunal and they are taken up together for final

disposal.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 22.07.2010 at about 8.30

a.m., when the petitioners were proceeding on

motorcycle bearing registration No.MH-45/J-0687

towards Ganapati temple, the petitioner Vijay was the

rider and Pratiba was the pillion rider, while they were

proceeding so near Vande Mataram Chowk infront of

MSEB office of Mahod road in Sangola, at about 8.30.

a.m., a truck bearing registration No.MWE-5295 came

from opposite side in high speed, rash and negligent

manner and dashed to the said motorcycle thereby

caused accident. Due to which the petitioners

sustained injuries in the road traffic accident.

3. The petitioners filed a petitions under

Section 166 of the Act seeking compensation. It was

pleaded that they have spent huge amount towards

medical expenses, conveyance, etc. It was further

pleaded that the accident occurred purely on account

of the rash and negligent driving of the offending

vehicle by its driver.

4. Respondent No.2 filed written statement in

which the averments made in the petition were

denied. It is contended that the truck bearing

registration No.MWE-5295 was not at all involved in

the accident. The petitioners colluding with the rider,

and owner/driver of the said truck and police have

registered a false case against the driver. It is

contended that the tribunal has no jurisdiction to try

the petitions. It is further contended that the

petitioners are suffering from non-joinder of necessary

parties. It is contended that the owner and insurer of

the motorcycle bearing registration No.MH-45/J0687,

have not been made as party to the petitions. It is

contended that the rider of the motorcycle and driver

of the truck were not holding valid and effective

driving licence. Hence, prayed to dismiss the petitions.

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

the Tribunal framed the following issues;

In MVC No.1769/2010:

(a) Whether the petitioner proves that, he has sustained bodily injuries in the motor vehicle accident that occurred on 22.07.2010 at about 8.30 a.m., near Vande Mataram Chowk, infront of MSEB office at Sangola, within the limits of Sangola police station on account of rash and negligent driving of the truck bearing registration No.MWE-5295, by its driver, as alleged?

(b) Whether the petitioner is entitled for the compensation? If so, what is the quantum and from whom?

(c) What order or award?

In MVC No.1770/2010:

(a) Whether the petitioner proves that, she has sustained bodily injuries in the

motor vehicle accident that occurred on 22.07.2010 at about 8.30 a.m., near Vande Mataram Chowk, infront of MSEB office at Sangola, within the limits of Sangola police station on account of rash and negligent driving of the truck bearing registration No.MWE-5295, by its driver, as alleged?

  (b)    Whether the petitioner is entitled for the
         compensation?     If    so,    what       is    the
         quantum and from whom?
  (c)    What order or award?


        and thereafter recorded the evidence.                   The

petitioner in MVC No.1770/2010 examined herself as

PW.1 and petitioner in MVC No.1769/2010 examined

himself as PW-2 and three witnesses as PWs.3 to 5

and got exhibited documents namely Ex.P1 to Ex.P35.

On behalf of the respondent, the official of Insurance

Company was examined as RW-1 and got exhibited

documents namely Ex.R1 to Ex.R4. The Claims

Tribunal, by the impugned judgment, inter alia, held

that the petitioners have proved that they have

sustained bodily injuries in the motor vehicle accident

that occurred on 22.07.2010 and accident was

occurred on account of rash and negligent driving of

the truck bearing registration No.MWE-5295, by its

driver, and further held that the petitioners are

entitled for the compensation and consequently

allowed the claim petitions in part by awarding

compensation of Rs.2,95,200/- to the petitioner in

MVC No.1770/2010 and Rs.3,44,000/- to the

petitioner in MVC No.1769/2010 and directed the

respondent No.2 to pay compensation amount along

with interest. Being dissatisfied with the compensation

awarded by the Tribunal, the respondent No.2-

Insurance Company filed the present appeals.

6. The learned counsel for the respondent

No.2 submits that respondent No.2 has taken a

specific contention in the written statement that the

truck was not at all involved in the accident and

petitioners colluding with the police have registered a

false criminal case against the driver of the truck. He

further submits that petitioner have failed to prove

that the said truck bearing registration No.MWE-5295

was involved in the accident and further that the

petitioners have failed to prove the rash and negligent

driving of the driver of the offending vehicle. Further

respondent No.1 was examined and he deposed that

the vehicle was not at all involved in the accident. The

tribunal relying on the police papers has recorded a

finding that the truck was involved in the accident. On

these grounds, he prays to allow the appeals.

7. Per contra, learned counsel for the

petitioners supports the impugned judgment and

award passed by the tribunal. He submits that the

petitioners in order to prove the rash and negligent

driving of the driver of the offending vehicle have

produced copy of FIR. He further submits that the

tribunal was justified in fastening the liability on the

Insurance Company. Hence, on these grounds he

prays to dismiss the appeals.

8. Learned counsel for the respondent No.1

adopts the arguments of learned counsel for the

petitioners.

9. Heard and perused and considered the

submission of the learned counsel for the parties.

10. The point that arise for consideration is

with regard to involvement of truck bearing

registration No.MWE-5295.

11. It is not in dispute that the petitioners have

sustained injuries. Though the petitioners produced

copy of FIR to establish that the accident was

occurred due to rash and negligent driving of the

driver of the truck bearing registration No. MWE-5295,

by its driver. The respondent No.2 has taken a specific

defence in the written statement that the said truck

was not at all involved in the accident. The petitioners

have not examined any eye-witnesses and also not

examined the police officials in order to prove the

involvement of the vehicle in the accident. When

there is a serious dispute with regard to the

involvement of the vehicle, it is for the petitioners to

remove suspicious circumstance. The petitioners have

not produced any records except the police papers.

Merely producing the police papers is not sufficient to

come to the conclusion that the accident was occurred

to due to rash and negligent driving of the driver of

the truck bearing registration No.MWE-5295. On the

basis of the material on record, the stand taken by the

respective parties, in view of non-examination of eye-

witnesses and also Investigating Officer, the judgment

and award cannot be sustained and liability to be set

aside.

12. This Court is of the considered opinion that

the matter requires to be reconsidered by the tribunal

afresh in the light of the facts and circumstances of

the case. Accordingly, both the appeals filed by the

Insurance Company are allowed. The impugned

judgment and award dated 17.11.2012 passed in MVC

Nos.1769 and 1770 of 2010 by the Motor Accident

Claims Tribunal-V, Bijapur, are hereby set aside.

The Tribunal is directed to provide an

opportunity to the parties to adduce evidence in

respect of involvement of truck bearing registration

No.MWE-5295 and thereby pass appropriate orders.

The claim petitions are of the year 2010,

considering the long pendency the tribunal is directed

to dispose of the petitions within a period of one year

from the date of receipt of a copy of this order.

All the contentions of the parties are kept open.

The amount in deposit be transmitted to the

tribunal forthwith.

Registry is directed to transmit the trial Court

records forthwith.

The parties are directed to appear before the

tribunal on 04.04.2022, without awaiting any further

notice.

Sd/-

JUDGE msr