Karnataka High Court
Ilaha S/O Hajisab Choudari vs Irfan S/O Nizamoddinshiragavi ... on 24 March, 2022
Bench: Ashok S. Kinagi
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 24TH DAY OF MARCH 2022
BEFORE
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
MFA NO.31699 OF 2013 (MV)
C/W
MFA NO.31700 OF 2013, MFA NO.31702 OF 2013,
MFA NO.31701 OF 2013
IN MFA NO.31699 OF 2013
BETWEEN:
ILAHI,
S/O HAJISAB CHOUDARI,
AGED ABOUT 34 YEARS, OCC: DRIVER,
R/O HAMAL COLONY, BIJAPUR - 586 101.
... APPELLANT
(BY SRI. SANGANAGOUDA V. BIRADAR, ADVOCATE)
AND:
1. IRFAN,
S/O NIZAMODDIN SHIRAGAVI,
AGED MAJOR, OCC: BUSINESS,
R/O ASAR GALLI, NEAR ATTAULLA MASJID,
BIJAPUR - 586 101.
2. THE BRANCH MANAGER,
ICICI LOMBARD INSURANCE CO. LTD.,
2ND FLOOR BELLAD BUILDING,
BANNIGADAD STOP, HUBLI-580 001.
... RESPONDENTS
(BY SRI. C.S. KALBURGI, ADVOCATE FOR R2;
NOTICE TO R1 SERVED)
2
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF M.V.ACT, PRAYING TO SET
ASIDE THE JUDGMENT AND AWARD DATED 08.12.2011
PASSED BY THE MACT VI, BIJAPUR IN MVC NO.281/2009
AND ALLOW THE SAID CLAIM PETITION.
IN MFA NO.31700 OF 2013
BETWEEN:
CHANDABI,
W/O MOHAMAMMED ALI KUDARI,
AGED ABOUT 26 YEARS, OCC: COOLIE,
R/O BAGAYAT GALLI, BIJAPUR - 586 101.
... APPELLANT
(BY SRI. SANGANAGOUDA V. BIRADAR, ADVOCATE)
AND:
1. IRFAN,
S/O NIZAMODDIN SHIRAGAVI,
AGED MAJOR, OCC: BUSINESS,
R/O ASAR GALLI, NEAR ATTAULLA MASJID,
BIJAPUR-586 101.
2. THE BRANCH MANAGER,
ICICI LOMBARD INSURANCE CO., LTD.,
2ND FLOOR BELLAD BUILDING,
BANNIGADAD STOP, HUBLI-580 001.
... RESPONDENTS
(BY SRI. C.S. KALBURGI, ADVOCATE FOR R2;
NOTICE TO R1 SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF M.V.ACT, PRAYING TO SET
3
ASIDE THE JUDGMENT AND AWARD DATED 08.12.2011
PASSED BY THE MACT VI, BIJAPUR IN MVC NO.280/2009
AND ALLOW THE SAID CLAIM PETITION.
IN MFA NO.31701 OF 2013
BETWEEN:
KULSUMBI,
W/O ABDULSAHEB KUDARI,
AGED ABOUT 64 YEARS, OCC: COOLIE,
R/O BAGAYAT GALLI, BIJAPUR-586 101.
... APPELLANT
(BY SRI. SANGANAGOUDA V. BIRADAR, ADVOCATE)
AND:
1. IRFAN,
S/O NIZAMODDIN SHIRAGAVI,
AGED MAJOR, OCC: BUSINESS,
R/O ASAR GALLI, NEAR ATTAULLA MASJID,
BIJAPUR-586 101.
2. THE BRANCH MANAGER,
ICICI LOMBARD INSURANCE CO., LTD.,
2ND FLOOR BELLAD BUILDING,
BANNIGADAD STOP, HUBLI-580 001.
... RESPONDENTS
(BY SRI. C.S. KALBURGI, ADVOCATE FOR R2;
NOTICE TO R1 SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF M.V.ACT, PRAYING TO SET
ASIDE THE JUDGMENT AND AWARD DATED 08.12.2011
4
PASSED BY THE MACT VI, BIJAPUR IN MVC NO.279/2009
AND ALLOW THE SAID CLAIM PETITION.
IN MFA NO.31702 OF 2013
BETWEEN:
AMEER,
S/O MAHBOOBSAB KAKHANDKI,
AGED ABOUT 22 YEARS, OCC: CARPENTER,
R/O HAMAL COLONY, BIJAPUR-586 101.
... APPELLANT
(BY SRI. SANGANAGOUDA V. BIRADAR, ADVOCATE)
AND:
1. IRFAN,
S/O NIZAMODDIN SHIRAGAVI,
AGED MAJOR, OCC: BUSINESS,
R/O ASAR GALLI, NEAR ATTAULLA MASJID,
BIJAPUR-586 101.
2. THE BRANCH MANAGER,
ICICI LOMBARD INSURANCE CO., LTD.,
2ND FLOOR BELLAD BUILDING,
BANNIGADAD STOP, HUBLI-580 001.
... RESPONDENTS
(BY SRI. C.S. KALBURGI, ADVOCATE FOR R2;
NOTICE TO R1 SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF M.V.ACT, PRAYING TO SET
ASIDE THE JUDGMENT AND AWARD DATED 08.12.2011
5
PASSED BY THE MACT VI, BIJAPUR IN MVC NO.282/2009
AND ALLOW THE SAID CLAIM PETITION.
THESE APPEALS COMING ON FOR HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Since all these appeals arise out of the common
judgment and award, they are heard together and
disposed of by this common judgment.
2. These appeals are filed under Section
173(1) of the Motor Vehicles Act (for short 'the Act')
challenging the common judgment and award dated
08.12.2011 passed in MVC Nos.279 to 282/2009, by
the Motor Accident Claims Tribunal-VI, Bijapur, (for
short hereinafter referred to as 'the Tribunal').
3. Parties are referred to as per their ranking
before the Tribunal.
4. Facts giving rise to filing of these appeals
are as under:
That on 03.12.2008, the petitioners were traveling
in Autorickshaw bearing registration No.KA-28/8973,
at that time, at about 2.00 p.m., near Hamal Colony,
on NH-13 road the driver of the said Autorickshaw
drove the vehicle in a rash and negligent with high
speed and being unable to control it went on wrong
side and dashed to a motor cycle and turned turtle
and caused the accident. On account of said accident,
the petitioners were sustained grievous injuries.
Hence, the petitioners filed a claim petition under
Section 166 of M.V.Act, seeking for compensation on
account of injuries sustained in the road traffic
accident.
4.1. The respondent No.1 did not appear before
the Tribunal inspite of service of notice and was placed
ex-parte. Respondent No.2 appeared through its
counsel and filed written statement denying the
averments made in the claim petition and also denied
the age, avocation, income and also denied the
injuries sustained by the petitioners due to accident.
It is contended that the accident was occurred due to
rash and negligent driving of the driver of
Autorickshaw bearing registration No.KA-28/8973. On
the other hand, it is contended that the petitioners
were traveling as unauthorized passengers in the said
Autorickshaw. The seating capacity of the said
Autorickshaw is 3+1 and more than the seating
capacity passengers were traveling in the said
Autorickshaw, at the time of accident and the
respondent No.2 is not liable to pay the compensation
and prayed to dismiss the claim petition.
5. The Tribunal on the basis of the pleadings of
the parties framed the issues.
6. The petitioners in order to prove their case,
examined the petitioner in M.V.C.No.281/2009 as
PW.1 and other petitioners were also examined ad
PW-2 to PW-4 and examined the doctor as PW-5 and
got marked the documents as Ex.P to Ex.P12. On
behalf of the respondents, respondent No.2 examined
its official as RW-1. The Tribunal, after recording the
evidence and considering the material on record, held
that petitioners have failed to prove that on
03.12.2008, the road traffic accident took place due to
actionable negligence of the driver of the
Autorickshaw bearing registration No.KA-28/8973 by
which the petitioners sustained injuries and further
held the petitioners are not entitled for compensation
and accordingly dismissed the claim petition. The
petitioners aggrieved by the judgment and award
passed by the Tribunal have filed this appeal.
7. Heard the learned counsel for the
petitioners and the learned counsel for the respondent
No.2 - Insurance Company.
8. Learned counsel for the petitioners submits
that the Tribunal has committed an error in dismissing
the claim petition. He further submits that the
Tribunal has not properly appreciated the material
placed on record and came to a wrong conclusion. It
is further contended that the accident was taken place
due to negligence of the driver of the Autorickshaw.
He further submits that under Section 163 of M.V. Act,
the petitioners shall not be require to plea or establish
the negligence. The said aspect has not been
considered by the Tribunal. Hence, on these grounds,
prayed to allow the appeal.
9. Per contra, learned counsel for the
respondent No.2 - Insurance Company submits that
the petitioners have failed to prove that the accident
occurred on 03.12.2008, due to actionable negligence
of the driver of the Autorickshaw bearing registration
No.KA-28-8973 the petitioners sustained injuries. He
further submits that the said vehicle was not insured
with the respondent No.2 as on the date of accident.
Hence, he submits that the Tribunal was justified in
rejecting the claim petitions filed by the petitioners.
Hence, on these grounds, he prays to dismiss the
appeal.
10. Perused the records and considered the
submissions made by the learned counsel for the
parties.
11. The point that arises for consideration is
with regard to whether the petitioners prove that they
have sustained injuries in the road traffic accident on
03.12.2008, due to rash and negligent driving of the
diver of the alleged offending vehicle.?
12. The petitioners contended that the accident
was occurred due to rash and negligent driving of the
driver of the Autorickshaw bearing registration No.KA-
28-8973, by which the petitioners sustained the
injuries. In order to substantiate the claim of the
petitioners, the petitioners were examined as PW-1 to
PW-4, wherein PW-1 admitted in the course of cross-
examination that the accident was occurred because
of his negligence. Ex.P5 - Chargesheet discloses that
the accident was occurred due to rash and negligent
driving of Autorickshaw by PW-1. The petitioners
have not produced the MVI report, and the said
Autorickshaw was involved in the alleged accident.
Further, PW-2 to PW-4 were examined and they have
deposed that they are traveling in the aforesaid
Autorickshaw on the said date, which was driven by
its driver in a rash and negligent manner and dashed
to the motor cycle, but in the claim petition PW-2 to
PW-4, nowhere disclose the motor cycle bearing
number to which the Autorickshaw was dashed and all
the four claim petition are arising out of the same
accident, the driver of the Autorickshaw is none other
than the petitioner in M.V.C.No.281/2009, stated that
the Autorickshaw was dashed to the motor cycle on
vice-versa.
13. From the perusal of the evidence PW-2 to
PW-4, if really the said Autorickshaw was dashed to
any motor cycle, definitely the driver of the
Autorickshaw would have mention in the claim petition
about the number of the motor cycle. In the present
case, petitioners have not mentioned the number of
motor cycle. There is contradiction in the evidence of
PW-1 and PW-2 to PW-4. The Tribunal was justified in
recording a finding that the petitioners have failed to
prove that the accident was occurred due the
actionable negligence on the part of the driver of the
Autorickshaw by which the petitioners sustained
grievous injuries and consequently, dismissed the
claim petitions. Hence, I do not find any grounds to
interfere with judgment and award passed by the
Tribunal. Accordingly, appeals are dismissed.
Sd/-
JUDGE
GRD
