Karnataka High Court
Abdul Shahid vs Ravindra Aroor on 26 December, 2023
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MFA No. 5289 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
MFA NO. 5289 OF 2020 (MV-I)
BETWEEN:
ABDUL SHAHID
AGED ABOUT 21 YEARS
S/O MOIDIN, R/O 1-25A, 'ALSANA'
MANIPURA WEST, MANIPURA
UDUPI TALUK AND DISTRICT - 574 105 ... APPELLANT
(BY SRI.PAVANA CHANDRA SHETTY, ADV.)
AND:
1. RAVINDRA AROOR
S/O SHRINIVASA RAO
R/AT AROOR HOUSE
POST PANGALA
UDUPI TALUK & DIST - 576 122
2. THE DIVISIONAL MANAGER
NATIONAL INSURANCE CO. LTD.
DIVISIONAL OFFICE
VIDYA POORNA COMPLEX
Digitally signed by MALA 1ST FLOOR, NEAR HEAD POST OFFICE
KN
UDUPI - 576 101 ... RESPONDENTS
Location: HIGH COURT
OF KARNATAKA
(BY SRI.K. SRIDHARA, ADV. FOR R2;
R1 SERVED AND UNREPRESENTED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 11.09.2020
PASSED IN MVC NO.378/2018 ON THE FILE OF THE II
ADDITIONAL SENIOR CIVIL JUDGE AND ADDITIONAL MACT,
UDUPI, DISMISSING THE CLAIM PETITION FOR
COMPENSATION.
THIS MFA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 22.11.2023 AND COMING ON FOR
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MFA No. 5289 of 2020
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
In this appeal, the petitioner has challenged the
judgment and award dated 11.09.2020 passed in
M.V.C.No.378/2018 by the Additional MACT., &
Additional Senior Civil Judge, Udupi ('the Tribunal' for
short).
2. For the sake of convenience, the rank of the
parties shall be referred to as per their status before
the Tribunal.
3. Brief facts of the case are, on 16.10.2017 at
about 9.35 p.m., while the petitioner was riding the
motor cycle bearing No.KA-20/EP-0546 on N.H.66 near
the house of one Vasantha Salian at Forest Gate of
Kapu, hit by the car bearing No.KA-20/Z-0924 injuring
him. The driver of the car did not stop the vehicle,
instead he went to Kapu Police Station and filed a false
complaint against the petitioner. With the assistance
of others, petitioner after taking treatment at Hi-tech
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Hospital, Udupi, filed a complaint to the
Superintendent of Police, Udupi and it was also
referred to the Kapu Police Station for investigation.
Seeking compensation against the car, the petitioner
has approached the Tribunal under Section 166 of the
M.V.Act. The claim was opposed by the Insurance
Company. The Tribunal after taking the evidence held
that the accident was not caused due to negligent act
of the driver of the car, the petitioner himself is the
Tort-feasor. Though the Tribunal assessed the
compensation of Rs.2,11,820/-, it has dismissed the
claim petition. Aggrieved by the same, the petitioner
has filed this appeal on various grounds.
4. Heard the arguments of Sri.H.Pavana Chandra
Shetty, learned counsel for the petitioner and
Sri.K.Sridhara, learned counsel for the Insurance
Company.
5. It is the contention of the learned counsel for
the petitioner that the accident was tailored by the
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driver of the car. For the reason of the petitioner
sustaining fracture of both bones of right leg and
fracture of medial malleolus of right leg, he could not
go to the Police Station immediately. Taking
advantage of the same, the driver of the car without
attending the injured escaped from the spot, went to
Kapu Police Station and filed a false complaint.
Against it, the petitioner after discharge from the
hospital filed a complaint to the Superintendent of
Police and it was also referred to Kapu Police Station.
The Police in connivance with the owner of the car had
charge sheeted the petitioner as the Tortfeasor and the
same is appreciated by the Tribunal. The petitioner
aged 21 years sustained injuries on his right leg, the
Tribunal though assessed the compensation on the
lower side did not award the same and dismissed the
claim petition and he sought for interference and re-
assessment of the compensation.
6. Per contra, learned counsel for the Insurance
Company has contended that the car is not involved in
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the accident. It is the petitioner, who while going from
Kapu to Udupi near the Forest Gate tried to cross over
the road by using the watergap in the National
highway during which he himself caused the accident
by hitting on the front portion of the car. For this
reason, a case was registered against the petitioner in
Crime No.223/2017 by the Kapu Police and after
investigation, he was charge-sheeted. It is further
contended that the petitioner has not challenged his
prosecution, but on the contrary, he has appeared
before the court through an advocate, pleaded guilty
and paid fine of Rs.1,000/-. At one breath, the
petitioner admits his guilt and in another breath, he is
seeking compensation from the car. It is not
permissible. The Tribunal after considering all the
material evidence correctly held that the petitioner
being the Tortfeasor is not entitled to claim
compensation and dismissed the claim and he
supported the impugned judgment.
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7. I have given my anxious consideration to the
arguments addressed on behalf of the parties and
perused the records.
8. The material on record did point out that there
was an accident on 16.10.2017 at 9.45 p.m. near
Forest Gate of Kapu where the petitioner alleges that
the car came behind him in an attempt to over take his
motor cycle hit on his right side causing the accident
and for this reason, the owner and insurer of the car
are liable to pay the compensation. The defence is
otherwise that the petitioner near forest gate tried to
travel from left to right by taking the motor cycle in a
small opening on the divider of the road, which was
formed for smooth flow of rain water, he himself hit
against the car and caused the accident.
9. There is no dispute that the petitioner was the
rider of the motor cycle at the time of accident and he
has suffered fracture of both bones of right leg and
also right medial malleolus. He was under
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hospitalization for 8 days at Hi-Tech Hospital, Udupi.
The petitioner has relied upon the prosecution papers,
such as Ex.P1/mahazar, Ex.P2/sketch, Ex.P3/IMV
report, Ex.P9/complaint given to the Superintendent of
Police. He did not produce the prosecution papers,
which otherwise produced by the Insurance Company
as Ex.R1/FIR, Ex.R2/charge sheet, Ex.R3/spot sketch,
Ex.R4/copy of the order sheet in C.C.No.3514/2017 on
the file of the Court of II Additional Civil Judge and
JMFC., Udupi. Exs.R1 to R4 did point out that on
16.10.2017 at 9.35 a.m., the petitioner being the rider
of the motor cycle bearing No.KA-2/EP-0546 from
Pangala to Manipal side on NH-66, near forest gate
tried to cross over the road from left side to right side
in a water opening in the road divider and hit and
damaged the car and also sustained injuries. For this
reason, he has been prosecuted in Crime No.223/2017
on the complaint filed by the owner of the car i.e., first
respondent. Ex.R3, the spot sketch did point out that
the accident took place on the middle of the road
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towards Udupi. Ex.R2 points out that the petitioner
was charge sheeted for the offence punishable under
Section 279 of IPC and numbered in C.C.No.3514/2017
and he has appeared through his advocate before the
learned JMFC., Udupi, pleaded guilty and paid the fine
of Rs.1,000/-.
9.1 Ex.P9 is the complaint lodged to the
Superintendent of Police on 15.11.2017. After one
month after the accident onEx.P9/complaint, the Kapu
Police have issued an endorsement as per Ex.P8 that
the complaint has already been registered in Crime
No.223/2017 and charge sheet is already filed. Hence,
no action is taken on the Ex.P9/complaint. During the
course of evidence, the petitioner did admit that
except filing the complaint to the Superintendent of
Police, he has not taken any action. The petitioner is
assisted by his advocate in drafting Ex.P9/complaint.
If really there was a fault on the part of the driver of
the car, the petitioner could have presented a private
complaint under Section 200 of Cr.P.C. before the
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learned Magistrate prosecuting the car driver. But he
kept mum, contrarily his conduct shows that he goes
before the learned Magistrate, accepts the charge and
pleaded guilty and paid the fine.
10. Ex.P3 is the Motor Vehicles Accident Report.
It is pertinent to note that both the car as well as the
motor cycle have been inspected by the Motor Vehicle
Inspector on 16.10.2017. The damage noticed on the
car is front shape, window screen glass, bonnet,
radiator, right side head light front bumper, right side
mirror damaged due to the impact of the accident.
The head light broken, crash guard bent at the right
side, petrol tank dented at the right side, handle bar
found bend at the right side due to the impact of the
accident. It is the specific case that the car came
behind the motor cycle and while overtaking, it
touched on the right side of the motor cycle. It is
noticed that there is no corresponding damages. To
support the said contention, contrarily, front portion of
the motor cycle has been damaged and it had hit
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against the front portion of the car. This goes to show
that while the motor cycle was going from left side to
right side, car came and hit on the front portion
sustaining damage to the front wind ceiling. This goes
to show that the car had not caused accident while
overtaking the motor cycle, but it is the motor cycle
which came across the car. This clearly goes to show
that the prosecution papers did stand against the
petitioner and the accident was not as claimed by the
petitioner.
11. The petitioner has examined PW-3/Anil
Kumar, who is a resident near Forest Gate where the
accident took place. His evidence points out that the
car overtaking the motor cycle and hit on the back side
of the motor cycle. If the car had hit against the back
side of the motor cycle, the corresponding damages
ought to have been found on the back of the motor
cycle, but as observed in Ex.P3, there are no damages
on the back side of the motor cycle. In the cross-
examination of the PW-3, it is brought out that he was
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not an eyewitness. Hence, the material on record did
point out that the accident was tailored by the
petitioner and there was no negligence on the part of
the driver of the car.
12. On a careful perusal of the impugned
judgment, the Tribunal has appreciated the material
evidence, recorded a clear finding that fault is on the
part of the petitioner and being a Tortfeasor, he cannot
claim the compensation and rightly dismissed the claim
petition. The well-reasoned order of the Tribunal,
viewed from any angle, does not call for interference
and therefore, the appeal is devoid of merits. In the
result, the following:
ORDER
(i) The appeal is dismissed.
(ii) The impugned judgment and award passed
by the Tribunal is confirmed.
Sd/-
JUDGE
KNM
