Karnataka High Court
Sri. Balappa @ Balesh Kallappa ... vs Sri. Asifali Mohamadgous Mulla on 23 November, 2023
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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NC: 2023:KHC-D:13686
MFA No. 23459 of 2013
C/W MFA No. 23457 of 2013
MFA No. 23458 of 2013
MFA No. 23460 of 2013
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 23RD DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO.23459/2013(MV-I)
C/W
MISCELLANEOUS FIRST APPEAL NO.23457/2013(MV-I)
MISCELLANEOUS FIRST APPEAL NO.23458/2013(MV-I)
MISCELLANEOUS FIRST APPEAL NO.23460/2013(MV-I)
IN MFA.NO.23459/2013:
BETWEEN:
SRI BALAPPA @ BALESH
KALLAPPA KAMAGOUDAR,
AGED ABOUT 35 YEARS,
R/O: SANKESHWAR, TQ:HUKKERI,
DIST:BELAGAVI.
...APPELLANT
(BY SRI MRUTYUNJAY TATA BANGI, ADVOCATE)
Digitally signed
by
AND:
VIJAYALAKSHMI VIJAYALAKSHMI
M KANKUPPI M KANKUPPI
Date: 2023.12.16
12:41:29 +0530
1. SRI ASIFALI MOHAMADGOUS MULLA,
AGED ABOUT 45 YEARS,
R/O: NIDASOSHI ROAD, SANKESHWAR,
TQ:HUKKERI, DIST:BELAGAVI.
2. THE NATIONAL INSURANCE CO. LTD.
BY ITS DIVISIONAL MANAGER,
1732, 1ST FLOOR,
PRABHU BUILDING, RAMDEV GALLI,
BELAGAVI.
3. SRI APPASAHEB KASHAGOUDA DESAI,
AGED ABOUT 51 YEARS,
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NC: 2023:KHC-D:13686
MFA No. 23459 of 2013
C/W MFA No. 23457 of 2013
MFA No. 23458 of 2013
MFA No. 23460 of 2013
R/O: GIJAVANE ROAD, GADHINGLAJ,
DIST:KOLHAPUR, MAHARASTRA.
...RESPONDENTS
(BY SRI S.S.GUNDI, ADVOCATE FOR R2;
NOTICE TO R3 IS DISPENSED WITH;
R1 IS SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT, 1988, PRAYING TO SET ASIDE THE JUDGMENT
AND AWARD PASSED BY THE II ADDITIONAL SENIOR CIVIL
JUDGE AND ADDITIONAL MOTOR VEHICLES ACCIDENT CLAIMS
TRIBUNAL, BELAGAVI IN MVC NO.1530/2008 DATED
10.06.2013 AND ETC.,
IN MFA.NO.23457/2013:
BETWEEN:
SRI SIDDAPPA @ SIDDESHWAR
ANNAPPA PANNALE,
AGED ABOUT 40 YEARS,
R/O: SANKESHWAR,
TQ: HUKKERI, DIST:BELAGAVI.
...APPELLANT
(BY SRI MRUTYUNJAY TATA BANGI, ADVOCATE)
AND:
1. SRI ASIFALI MOHAMADGOUS MULLA,
AGED ABOUT 45 YEARS,
R/O: NIDASOSHI ROAD,
SANKESHWAR, TQ:HUKKERI,
DIST: BELAGAVI.
2. THE NATIONAL INSURANCE CO. LTD.
BY ITS DIVISIONAL MANAGER,
1732, 1ST FLOOR, PRABHU BUILDING,
RAMDEV GALLI, BELAGAVI.
3. SRI APPASAHEB KASHAGOUDA DESAI,
AGED ABOUT 51 YEARS,
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NC: 2023:KHC-D:13686
MFA No. 23459 of 2013
C/W MFA No. 23457 of 2013
MFA No. 23458 of 2013
MFA No. 23460 of 2013
R/O: GIJAVANE ROAD, GADHINGLAJ,
DIST:KOLHAPUR, MAHARASTRA.
...RESPONDENTS
(BY SRI SURESH S. GUNDI, ADVOCATE FOR R2;
NOTICE TO R3 IS DISPENSED WITH;
R1 IS SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT, 1988, PRAYING TO SET ASIDE THE JUDGMENT
AND AWARD PASSED BY THE II ADDITIONAL SENIOR CIVIL
JUDGE AND ADDITIONAL MOTOR VEHICLES ACCIDENT CLAIMS
TRIBUNAL, BELAGAVI IN MVC NO.1518/2008 DATED
10.06.2013 AND ETC.,
IN MFA.NO.23458/2013:
BETWEEN:
SRI APPASAHEB KASHAGOUDA DESAI,
AGED ABOUT 47 YEARS,
R/AT GIJAVANE ROAD, GADHINGLAJ,
DIST: KOLHAPUR, MAHARASTRA.
...APPELLANT
(BY SRI MRUTYUNJAY TATA BANGI, ADVOCATE)
AND:
1. SRI ASIFALI MOHAMADGOUS MULLA,
AGED ABOUT 45 YEARS,
R/O: NIDASOSHI ROAD, SANKESHWAR,
TQ:HUKKERI, DIST: BELAGAVI.
2. THE NATIONAL INSURANCE CO. LTD.
BY ITS DIVISIONAL MANAGER,
1732, 1ST FLOOR, RABHU BUILDING,
RAMDEV GALLI, BELAGAVI.
...RESPONDENTS
(BY SRI S. S. GUNDI, ADVOCATE FOR R2;
NOTICE TO R1 IS DISPENSED WITH)
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NC: 2023:KHC-D:13686
MFA No. 23459 of 2013
C/W MFA No. 23457 of 2013
MFA No. 23458 of 2013
MFA No. 23460 of 2013
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT, 1988, PRAYING TO SET ASIDE THE JUDGMENT
AND AWARD PASSED BY THE II ADDITIONAL SENIOR CIVIL
JUDGE AND ADDITIONAL MOTOR VEHICLES ACCIDENT CLAIMS
TRIBUNAL, BELAGAVI IN MVC NO.1519/2008 DATED
10.06.2013 AND ETC.,
IN MFA.NO.23460/2013:
BETWEEN:
SRI APPASAHEB KASHAGOUDA DESAI,
AGED ABOUT 51 YEARS,
R/AT GIJAVANE ROAD, GADHINGLAJ,
DIST: KOLHAPUR, MAHARASTRA,
NOW AT SANKESHWAR, TAL:HUKKERI,
DIST: BELAGAVI.
...APPELLANT
(BY SRI MRUTYUNJAY TATA BANGI, ADVOCATE)
AND:
1. SRI ASIFALI MOHAMADGOUS MULLA,
AGED ABOUT 45 YEARS,
R/O: NIDASOSHI ROAD, SANKESHWAR,
TQ:HUKKERI, DIST: BELAGAVI.
2. THE NATIONAL INSURANCE CO. LTD.
BY ITS DIVISIONAL MANAGER,
1732, 1ST FLOOR, PRABHU BUILDING,
RAMDEV GALLI, BELAGAVI.
...RESPONDENTS
(BY SRI S. S. GUNDI, ADVOCATE FOR R2;
R1 IS SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT, 1988, PRAYING TO SET ASIDE THE JUDGMENT
AND AWARD PASSED BY THE II ADDITIONAL SENIOR CIVIL
JUDGE AND ADDITIONAL MOTOR VEHICLES ACCIDENT CLAIMS
TRIBUNAL, BELAGAVI IN MVC NO.697/2010 DATED 10.06.2013
AND ETC.,
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NC: 2023:KHC-D:13686
MFA No. 23459 of 2013
C/W MFA No. 23457 of 2013
MFA No. 23458 of 2013
MFA No. 23460 of 2013
THESE APPEALS, COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
MFA No.23459/2013, MFA No.23457/2013, MFA
No.23458/2013 and MFA No.23460/2013 are filed by the
claimants challenging the dismissal of claim petition.
2. It is the case of the claimants that when they were
travelling in the Tata Indigo car bearing No.MH-10/E-
5799, goods tempo bearing No.KA-23/6247 hit the car. In
the accident, claimants have sustained injuries. Therefore,
the claimants have filed claim petition claiming
compensation against the owner and insurer of the goods
tempo. But the claim petitions came to be dismissed by
the tribunal on the reason that goods tempo has not hit
the car but the tyre of Tata indigo Car was burst and in
that accident, claimants have sustained injuries.
3. Heard the learned counsel for the parties and
perused the records.
NC: 2023:KHC-D:13686
4. The learned counsel for the respondent-insurance
company submitted that the accident was not caused as
stated by the claimants but, when the claimants were
travelling in the Tata Indigo Car it's one of the tyre was
burst and in that accident, claimants have sustained the
injuries and the same is rightly appreciated by the
tribunal. Hence, tribunal has correctly dismissed the claim
petitions.
5. On the other hand, learned counsel for the claimant
submitted that the goods tempo has hit the car. Therefore,
the claimants who have travelled in the car have sustained
injuries.
6. Upon considering the rival submissions of the learned
counsel for the parties, documentary evidences are to be
appreciated. The accident is caused on 28.02.2008. Ex.P1-
complaint before the police was lodged on 06.03.2008 i.e.
after seven days from the alleged date of
accident/incident. Ex.P.6 and P.22 are the wound
NC: 2023:KHC-D:13686
certificates of the claimants, in which it is observed that
the claimants have admitted to the hospital on 28.02.2008
with history of the accident that tyre of the car was burst
and hence, sustained injuries. Therefore, when two
versions are considered, one in the complaint and another
in the wound certificate regarding the manner of accident,
which version is at the earliest point of time, undisputed
point of time that can be believed. Admittedly, the
complaint is delayed by seven days. Obviously, there
might have chances of creating narration of the accident in
the complaint. But, when the hospital records are
considered, it is revealed that before the hospital
authorities/doctors, the history of the accident is given
that tyre of the car was burst and hence, accident was
occurred. Therefore, the version given before the Hospital
at the earliest point of time and undisputed point of time is
believed. Hence, it is proved that tempo has not hit the
car but, the claimants while travelling in the car has
suffered injuries when the tyre of the car was burst.
NC: 2023:KHC-D:13686
Therefore, claim petition against owner/insurer of tempo is
not maintainable. Hence, the tribunal is correct in
dismissing the claim petitions which needs no interference
by this court. Therefore, the appeals are liable to be
dismissed.
7. Hence, I proceed to pass the following:
ORDER
i) MFA No.23459/2013, MFA
No.23457/2013, MFA No.23458/2013 and MFA
No.23460/2013 filed by the claimants are
dismissed.
ii) The common judgment and award
passed in MVC Nos.1530/2008, 1518/2008,
1519/2008 and MVC No.697/2010 dated
10.06.2013 respectively by II Additional Senior
Civil Judge and Addl. MACT, Belagavi is
confirmed.
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iii) Send back the trial Court records along
with a copy of this judgment.
iv) No order as to costs.
v) Draw award accordingly.
Sd/-
JUDGE
HMB
CT-ASC
