Shri.M Ramaswamy S/O Ravutappa ... vs Shri. Dharmendra S/O Rajanna ...
2022 Latest Caselaw 7491 Kant

                              1




          IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

        DATED THIS THE 26TH DAY OF MAY 2022

                          BEFORE

     THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR

                MFA No.31359/2013 (MV)

BETWEEN:

Shri Ramaswamy
S/o Ravutappa Chougale
Aged about 27 years, Occ: Business
R/o Devara Hippargi, Tq. Sindagi
Dist. Bijapur - 586 101
                                          ... Appellant
(By Sri. S.S. Mamadapur, Advocate)

AND:

1.     Shri Dharmendra
       S/o Rajamma Narayankar
       Age: Major, Occ: Naikar Galli
       Sindagi, Dist. Bijapur - 586 101

2.    The Divisional Manager
      United India Insurance Co. Ltd.
      Super Market, Gulbarga
      (Summons through to the D.N. Office
      United India Insurance Co. Ltd.
      Bijapur - 586 101)
                                         ... Respondents
(Sri Manvendra Reddy, Advocate for R2;
 R1 - served)
                                2



      This MFA is filed under Section 173(1) of the Motor
Vehicles Act, praying to set aside the judgment and award
dated 21.12.2012 passed by the learned Member, MACT &
FTC-I/II,   Bijapur,   dismissing   MVC   No.1460/2011   and
consequently allow the said petition.


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


                         JUDGMENT

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

Vehicles Act, challenging the judgment and award dated

21.12.2012 passed in MVC No.1460/2011 by the Motor

Accident Claims Tribunal & Fast Track Court-I/II, Bijapur

(hereinafter referred to as 'the Tribunal' for short).

2. For the sake of convenience, the parties herein

are referred with the original ranks occupied by them

before the Tribunal.

3. The brief factual matrix leading to the case

are that, on 04.07.2011, the claimant was proceeding

by walk and at about 9.00 p.m. on Sindagi-Malghan

Road, a motorcycle bearing Reg. No.KA-32/L-8320

came in a rash and negligent manner and dashed to

the claimant, due to which he sustained injuries.

Immediately, he was shifted to the Government

Hospital, Sindagi and thereafter he took treatment in

BLDE Hospital, Bijapur and Ashwini Hospital, Solapur.

He has spent huge amount towards medical expenses.

That, prior to the accident, he was earning

Rs.20,000/- per month by doing business and now

because of the accidental injuries he is permanently

disabled and unable to continue his avocation. Hence,

he has sought for compensation of Rs.22,00,000/-

under various heads from the respondents.

4. Respondent No.1-owner denied the

allegations of the claim petition and simply contended

that the vehicle was insured with respondent No.2 and

if any compensation is awarded, that shall be

indemnified by respondent No.2-insurer.

5. Respondent No.2-insurer has admitted that

the vehicle bearing Reg. No.KA-32/L-8320 was

insured with him, but he denied the age, income and

occupation of the claimant. It is further asserted that

the rider of the motor bike was not possessing valid

driving licence and he has taken other contentions

disputing the alleged accident as claimed and sought

for dismissal of the claim petition.

6. The claimant was examined as PW.1 and

one Dr. S.S. Bedar was examined as PW.2. The

claimant has placed reliance on 15 documents marked

at Exs.P1 to P15. The PC of Sindagi PS was examined

as RW.1 and the officer of respondent No.2 was

examined as RW.2 and they placed reliance on Exs.R1

to R4.

7. The Tribunal, after appreciating the oral

and documentary evidence has dismissed the claim

petition filed under Section 166 of the M.V. Act on the

ground that it is not a case of two wheeler hitting the

claimant, but the claimant himself fell from the vehicle

resulting in the accident and as such, denied the

compensation. Being aggrieved by the order of

dismissal, the claimant has filed this appeal.

8. Heard the arguments advanced by both the

counsels and perused the records.

9. The learned counsel for the appellant would

contend that the accident has occurred on 04.07.2011

and as police did not take any steps, on 05.08.2011 a

private complaint came to be filed and on 23.09.2011

FIR came to be registered. He would also contend that

the owner of the two wheeler has pleaded guilty

before the Criminal Court and hence, it is prima facie

established that the injury caused to the claimant is

because of the actionable negligence on the part of

the rider of the motorcycle. Hence, he would contend

that the Tribunal has erred in rejecting the claim

petition and as such, he has sought for allowing the

claim petition and the appeal.

10. Per contra, learned counsel for respondent

No.2-insurer has supported the judgment and award

of the Tribunal and contended that no complaint was

filed immediately after the accident and the statement

of the father of owner of the vehicle given before the

police immediately after the accident, which is marked

at Ex.R1 disclose that the claimant himself was riding

the vehicle and it completely falsify the claim. Hence,

he would seek for rejection of the appeal.

11. Having heard the arguments and perusing

the records, it is evident that the claimant did sustain

certain injuries in the accident. He claims that the two

wheeler owned by respondent No.1 has knocked him

on 04.07.2011, but interestingly, respondent No.1 in

his objection statement has denied the very accident

itself. On the contrary, respondent No.2 has placed

reliance on Ex.R1 which is the statement given by the

father of respondent No.1 before the police stating

that the accident has occurred by self fall by the

claimant and since claimant sustained simple injuries,

they will consider of lodging the complaint in due

course.

12. The main contention of the appellant is

regarding the owner admitting the guilt, but merely

because the owner was convicted before the Criminal

Court as he has pleaded guilty, it cannot be concluded

that the vehicle was involved in the accident. He

would have pleaded guilty for various reasons. Apart

from that, there is no proper explanation regarding

Ex.R1, which is the statement given by the father of

respondent No.1, wherein it is specifically asserted

that the accident is because of the self fall and the

claimant while driving the vehicle fell resulting in the

accident and sustained simple injuries. This document

is not controverted and there is no reason to discard

this document. Apart from that, immediately after the

accident, the claimant was admitted in Government

Hospital, Sindagi. The MLC document pertaining to

Government Hospital, Sindagi is not produced by the

claimant to show that immediately he has given the

history of accident before the hospital authorities.

Ex.R1-the statement given by the father of

respondent No.1 disclose that he sustained simple

injuries. On the contrary, Ex.R2 produced by the

respondent-insurance company disclose that the

claimant was admitted in the hospital on 04.07.2011

at 10.00 p.m. and the history was not disclosed there

also. Under these circumstances, the contention of

the appellant that he was knocked down by the two

wheeler cannot be accepted at any stretch of

imagination.

13. The Tribunal has appreciated the oral and

documentary evidence in proper perspective and has

rightly denied the claim of the claimant, as the

petition was filed under Section 166 of the M.V. Act.

14. At this juncture, the learned counsel for the

appellant/claimant would contend that liberty may be

reserved to the claimant to approach the Tribunal

under Section 163(A) of the M.V. Act. This Court

cannot express any view in this regard, as accident

has occurred in 2011 and if he is advised to do so, it is

open for him. Considering these facts and

circumstances, the appeal is devoid of any merits and

needs to be dismissed.

Accordingly, the appeal is dismissed.

Sd/-

JUDGE

LG