Sri Shanthakumar B J vs The Divisional Manager
2022 Latest Caselaw 12777 Kant

                             1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 3RD DAY OF NOVEMBER, 2022

                          BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

                  M.F.A.NO.505/2015 (MV-I)

BETWEEN:

SRI SHANTHAKUMAR B.J.,
S/O THIMMAPPA B.S,
AGED ABOUT 23 YEARS,
R/AT UCCHANANGIPURA VILLAGE,
JAGALUR TALUK-577 528.
DAVANAGERE DIST.
                                             ...APPELLANT

           (BY SRI V.B. SIDDARAMAIAH, ADVOCATE)

AND:

1.     THE DIVISIONAL MANAGER,
       UNITED INIDA INSURANCE CO. LTD.,
       AKKA MAHADEVI ROAD,
       P.J. EXTENSION,
       DAVANAGERE-577 001.

2.     YALLAPPA,
       S/O SIDDAPPA,
       AGED ABOUT 49 YEARS,
       R/AT UCCHANANGIPURA VILLAGE,
       JAGALUR TALUK-577528,
       DAVANAGERE DIST.

3.     B.S. THIMMAPPA,
       S/O LATE SIDDAPPA,
       AGED ABOUT 49 YEARS,
       R/AT UCCHANANGIPURA VILLAGE,
                                  2



      JAGALUR TALUK-577 528,
      DAVANGERE DIST.
                                                  ...RESPONDENTS

        (BY SRI RAVISH BENNI, ADVOCATE FOR R1,
      MANJU AND MANJU ASSOCIATESS FOR R2 AND R3)



      THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 17.09.2014
PASSED     IN   MVC   NO.160/2014    ON    THE   FILE   OF   THE      I
ADDITIONAL SENIOR CIVIL JUDGE, & V MACT, DAVANAGERE,
DISMISSING THE CLAIM PETITION FOR COMPENSATION.


      THIS M.F.A. COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:



                         JUDGMENT

Heard the learned counsel for the appellant, the learned

counsel for respondent No.1 and the learned counsel for

respondent Nos.2 and 3.

2. This appeal is filed challenging the judgment and

award dated 17.09.2014, passed in M.V.C.No.160/2014, on the

file of the I Additional Senior Civil Judge, V MACT, Davanagere

('the Tribunal' for short) questioning the dismissal of the appeal.

3. The main contention of the learned counsel for the

appellant is that the Tribunal committed an error in dismissing

the entire claim petition even though 'C' report is filed against

the offending vehicle. The learned counsel submits that it is not

in dispute that the claimant is the pillion rider of the vehicle and

the Tribunal ought to have taken the contributory negligence

against the rider of the motorcycle.

4. Per contra, the learned counsel for the respondents

submits that the claimant, his uncle and father, all of them have

joined together in order to make wrongful gain and given the

details of an auto rickshaw and the same was not involved in the

accident and hence the Investigating Officer investigated the

matter and filed the 'C' report before the Court and the same is

not challenged. When there is no allegation against the rider of

the motorcycle, the question of entertaining the claim petition

under Section 166 of the Motor Vehicles Act ('M.V. Act' for short)

does not arise. The learned counsel submits that the Tribunal in

paragraph No.15, in detail discussed with regard to suppressing

of the material before the Tribunal and rightly comes to the

conclusion and hence no ground is made out to set aside the

impugned order.

5. Having heard the respective learned counsel and also

on perusal of the material available on record, it is the case of

the claimant that two vehicles are involved in the accident. The

complaint is given against the driver of the auto rickshaw, who

came and hit the two wheeler and admittedly, the complaint was

given after 2½ days of the accident. It is the contention of the

Insurance Company that the auto rickshaw was falsely

implicated in the case in order to make wrongful gain. The

police have also investigated the matter and filed the 'C' report

stating that no vehicle was involved in the accident. The

Tribunal while considering the material on record, in detail

discussed in paragraph No.15 and comes to the conclusion that

the auto rickshaw driver and the owner were not made as

parties to the proceedings. It is also observed that there is a

delay of more than 2½ days in filing the complaint and sufficient

time was taken to file the complaint and complaint is filed

afterthought and if really the accident occurred due to the

negligent driving of the motorcycle by respondent No.1, nothing

prevented to say the said fact in the complaint. The Tribunal

also taken note of the contents of the complaint, wherein no

allegations are made against the rider of the motorcycle. When

such being the case, the Tribunal rightly dismissed the claim

petition and hence I do not find any merit in the appeal to

reverse the finding of the Tribunal.

6. The learned counsel for the appellant would contend

that IMV report Ex.P.5 discloses the damages caused to the

motorcycle. I have already pointed out that in a petition under

Section 166 of the MV Act, there must be a specific allegation

against the rider of the motorcycle, which was involved in the

accident and no such allegation and no such material is placed

before the Court regarding negligence on the part of the rider of

the motorcycle and the complaint allegations are made against

the driver of the auto rickshaw. Hence, I do not find any ground

to reverse the finding of the Tribunal. The contention of the

learned counsel for the appellant that the Tribunal ought to have

taken the contributory negligence against the rider of the

motorcycle cannot be accepted in the absence of cogent

evidence and no allegation of negligence on the part of the rider

of the two wheeler.

7. In view of the discussions made above, I pass the

following:

ORDER

The appeal is dismissed.

Sd/-

JUDGE

MD