The Divisional Manager vs Nagalingayya Swamy S/O Basayya ...
2022 Latest Caselaw 5802 Kant

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          IN THE HIGH COURT OF KARNATAKA
                   KALABURAGI BENCH

       DATED THIS THE 31ST DAY OF MARCH, 2022
                           BEFORE

     THE HON'BLE MR.JUSTICE ASHOK S. KINAGI

               MFA No.201716/2014 (MV)
Between:
The Divisional Manager,
National Insurance Co. ltd.,
Raichur.
(Now represented by its
Authorised Signatory)
                                               ... Appellant
(By Smt. Preeti Patil Melkundi, Advocate)

And:

1.     Nagalingayya Swamy
       S/o Basayya Swamy,
       Age: 39 years, Occ: Supervisor in
       Navodaya Medical College Boys Hostel,
       Raichur, R/o Near BRB Circle,
       Ashok Nagar, Raichur-584 101.

2.     Thimmappa S/o Thimmayya,
       Age: Major, Occ: Agri. & Rider, Owner,
       R.C.Holder of Motor Cycle No.
       KA-36/Y-5676,
       R/o: Sidrampur Village,
       Tq. & Dist: Raichur-584 101.
                                            ... Respondents

(Notice to R1 is held sufficient;
  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
allow the above appeal by setting aside the impugned
judgment and award dated 02.09.2014 in MVC
No.371/2013 passed by the IInd Addl. Dist. & Sessions
Judge at Raichur, with exemplary costs.

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


                          JUDGMENT

This appeal is filed by the Insurance Company

under Section 173(1) of the Motor Vehicles Act, 1988

(hereinafter referred to as 'the Act', for short)

challenging the judgment and award dated

02.09.2014 passed in MVC No.371/2013 by the II

Addl. District and Sessions Judge, Raichur (hereinafter

referred to as 'the Tribunal', for short).

For the sake of convenience, parties are referred

to as per their ranking before the Claims Tribunal.

Appellant is respondent No.2, respondent No.1

claimant, respondent No.2 is respondent No.1 before

the Tribunal.

2. Facts giving rise to the filing of the appeal

briefly stated are;

2.1. That on 23.02.2013, when the claimant

was proceeding by walk on BRB-RTO Circle road, near

Muthyalamma Temple, infront of Maruthi Temple,

Raichur, the respondent No.1 came by driving the

motorcycle bearing registration No.KA-36/Y-5676 in

high speed with rash and negligent manner and lost

his control over it and dashed to the claimant. As a

result, the claimant fell down and sustained injuries

and spent huge amount towards medical expenses.

Hence, filed a petition under Section 166 of M.V.Act

seeking compensation on the account of injuries

sustained in the road traffic accident.

2.2. The respondent No.1 filed written

statement denying the averments made in the

petition. It is contended that claimant has sustained

simple injuries and respondent No.1 was having valid

and effective driving licence to drive the vehicle as on

the date of the accident. The said vehicle was insured

with respondent No.2. Further, the tribunal found

there is any liability, the insurer has to indemnify the

liability of respondent No.1. Hence, sought for

dismissal of claim petition.

2.3. Respondent No.2 filed written statement

denying the averments made in the claim petition.

Further it is denied the accident took place on

23.02.2013 due to rash and negligent riding of the

motorcycle by respondent No.1. It is also denied that

the petitioner has sustained injuries in the road traffic

accident. Further, the claimant has registered a false

case against respondent No.1 and both claimant and

respondent No.1 colluded with each other and filed a

false case. As such, prays to dismiss the petition .

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

the Claims Tribunal framed the issues and thereafter

recorded the evidence. In order to prove the case,

claimant is examined as PW-1 and examined one

witness as PW.2 and also examined two doctors as

PWs.3 and 4 and got marked documents namely

Ex.P1 to Ex.P97. The Insurance Company examined

its Officer as RW.1 and got marked documents Ex.R1

to R3.

2.5. The Tribunal after recording the evidence

and considering the material on record, allowed the

claim petition in part and awarded compensation of

Rs.2,65,000/- with interest @ 6% p.a. from the date

of petition till realization of award amount and

directed respondent No.2 to pay compensation with

interest.

3. Respondent No.2, aggrieved by the

judgment and award passed by the Tribunal, has filed

this appeal.

4. Service of notice to respondent No.1 i.e.,

claimant is held sufficient vide order dated

04.01.2018. Inspite of service of notice to respondent

No.2/owner herein, none appears for respondent

No.2/owner.

5. Heard the learned counsel for respondent

No.2/Insurance company.

6. The learned counsel for respondent

No.2/Insurance company submits that the vehicle has

been falsely implicated in the case. Petitioner and

respondent No.1 colluding with each other got filed a

false criminal case against respondent No.1. She

further submits that in Ex.P5, there is no details

regarding vehicle number etc. She further submits

that the Tribunal has committed an error in fastening

the liability on respondent No.2. Hence, on these

grounds, she prays to allow the appeal.

7. I have perused the records and considered

the submissions made by the learned counsel for

respondent No.2. The point that arises for

consideration is with regard to liability.

8. The occurrence of the accident and the

injuries sustained by the petitioner in the said accident

is not in dispute. In order to prove that the accident

has occurred due to rash and negligent riding of the

rider of the motorcycle, the petitioner has produced

copy of charge sheet marked as Ex.P2. Ex.P2

discloses that the accident has occurred due to rash

and negligent riding of the rider of the motorcycle.

9. Petitioner in support of his claim petition

examined himself as P.W.1. In his examination-in-

chief, he has deposed that on 23.02.2013 he was

proceeding by walk on the extreme left side of the

road. Respondent No.1 rode the motorcycle bearing

registration No.KA-36/Y-5676 in a high speed and in a

rash and negligent manner and lost control over the

motorcycle and hit the claimant from behind. The

said fact has not been denied by respondent No.2 in

the course of cross-examination. Further, respondent

No.2 has not suggested to P.W.1 that the motorcycle

has been falsely implicated in collusion with

respondent No.1. Respondent No.2 though has taken

specific defence in the written statement, but failed to

prove that the vehicle has been falsely implicated by

the petitioner in collusion with respondent No.1.

Further, petitioner has examined the eye-witness,

Narasimlu as P.W.2 who has deposed in the evidence

that he has seen the accident and the motorcycle was

ridden by the rider in a high speed and in a rash and

negligent manner and lost control over the motorcycle

and dashed to the injured from behind. In view of the

said accident, the injured fell down. Further, he has

deposed that the rider of the motorcycle after the

accident stopped the motorcycle and went away. In

the course of cross-examination, except suggesting

that P.W.2 has filed false affidavit, nothing has been

elicited from the mouth of this witness. Petitioner has

produced Medico Legal Certificate which is marked as

Ex.P5 which discloses the details of injury and alleged

history of road traffic accident. The said contention

of the petitioner is being supported by the evidence of

PWs.1 and 2 and Ex.P5 and also police papers.

Respondent No.2 has examined its official as RW.1. He

has stated that the motorcycle has been falsely

implicated. Except oral evidence, nothing has been

produced to prove that the motorcycle has been

falsely implicated. Hence, the Tribunal was justified in

recording finding that the rider was riding the

motorcycle in a rash and negligent manner and

dashed to the petitioner due to which, claimant

sustained injuries and suffered disability and rightly

recorded finding that the petitioner is entitled for

compensation. Hence, I do not find any ground to

interfere with the impugned judgment and award

passed by the Tribunal. Accordingly, the appeal is

dismissed.

The amount in deposit be transmitted to the

Tribunal.

Sd/-

JUDGE

msr/NB*