Karnataka High Court
Ashwak @ Ashwak Ahamed vs New India Assurance Company Ltd on 3 April, 2024
Author: Jyoti Mulimani
Bench: Jyoti Mulimani
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NC: 2024:KHC:13617
MFA No. 4386 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF APRIL, 2024
BEFORE
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
MISCELLANEOUS FIRST APPEAL NO.4386 OF 2013(MV-I)
BETWEEN:
ASHWAK @ ASHWAK AHAMED
AGED 31 YEARS,
S/O LATE MOHAMMED KHAN,
R/O NO.757, EDIGARA BEEDI,
CHANNAPATNA,
RAMANAGARA DISTRICT,
PRESENTLY R/AT
C/O NAYAZ AHAMED,
FRUIT MERCHANT,
NO.570, II CROSS,
JAYANAGARA 4TH BLOCK,
BENGALURU-560 011.
...APPELLANT
(BY SRI. GIRIMALLAIAH., ADVOCATE)
AND:
Digitally signed by
THEJASKUMAR N 1. NEW INDIA ASSURANCE COMPANY LTD.,
Location: HIGH REGIONAL OFFICE, NO.2-B,
COURT OF
KARNATAKA UNITY BUILDING ANNEX,
MISSION ROAD, BENGALURU-27,
BY ITS MANAGER.
2. SYED MOHAMMED,
MAJOR,
S/O SYED ESA
NO.1348/1, INDIRA COTTAGE,
SATHNOOR ROAD, CHANNAPATNA,
RAMANAGARA DISTRICT-571 501.
...RESPONDENTS
(BY SRI. C.R.RAVISHANKAR., ADVOCATE FOR R1;
R2-SERVED AND UNREPRESENTED)
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NC: 2024:KHC:13617
MFA No. 4386 of 2013
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988,
AGAINST THE JUDGMENT AND AWARD DATED:11.03.2013
PASSED IN MVC NO.7832/2011 ON THE FILE OF THE I
ADDITIONAL SMALL CAUSE JUDGE, MACT, BANGALORE.
THIS MISCELLANEOUS FIRST APPEAL IS COMING ON FOR
FINAL HEARING, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
Sri.C.R.Ravi Shankar., learned counsel for respondent
No.1 has appeared in person.
2. Notice to the respondents was ordered on
12.08.2013. A perusal of the office note depicts that
respondent No.2 is served and unrepresented. He has neither
engaged the services of an advocate nor conducted the case as
party in person.
3. For the sake of convenience, the parties are
referred to as per their status and rankings before the Tribunal.
4. It is the case of the claimant that on the 16th day of
November 2011 at about 1:15 p.m., the claimant being the
pillion rider was proceeding on a motorcycle bearing
Registration No.KA-25-S-6577 on Malavalli - Kanakapura Road,
near Gowdagere Corss. At that time, a motorcycle bearing
Registration No.KA-42-H-6993 came from behind in a rash and
NC: 2024:KHC:13617
negligent manner and hit the motorcycle. Due to the impact,
the claimant fell and sustained injuries. Contending that he is
entitled for compensation, the claimant filed claim petition.
In response to the notice, the second respondent
remained absent before the Tribunal and hence, he was placed
ex-parte. The first respondent - Insurance Company appeared
through its counsel and filed objections denying the petition
averments. Among other grounds, it prayed for dismissal of the
petition.
Based on the above pleadings, the Tribunal framed
issues, parties led evidence and marked the documents. The
Tribunal vide Judgment dated:11.03.2013 dismissed the claim
petition. It is this Judgment that is called into question in this
appeal on several grounds as set-out in the Memorandum of
appeal.
5. Learned counsel for the respective parties have
urged several contentions. Heard, the contentions urged on
behalf of the respective parties and perused the appeal papers
and also the records with utmost care.
6. The point that requires consideration is whether the
Tribunal is justified in dismissing the claim petition.
NC: 2024:KHC:13617
7. The facts are sufficiently stated and do not require
reiteration. According to the claimant, the accident occurred on
the 16th day of November 2011. However, the complaint is
made by one Noorulla on the 25th day of November 2011.
There is an inordinate delay of 09 days in making a complaint.
An attempt was made on behalf of the claimant that the
owner of the offending vehicle made a verbal assurance that he
would bear the medical expenses and requested him not to file
a complaint. Hence, he did not make a complaint well in time.
In this Court also, he has adhered to the said contention. The
contention cannot be accepted. The reason is simple. There is
nothing on record about the alleged verbal assurance made by
the owner of the offending vehicle.
Furthermore, Noorulla the rider of a motorcycle was
examined as PW3. He deposed that he was riding the
motorcycle along with the claimant on 16.11.2011 and a
motorcycle came from behind and hit their motorcycle and
caused the accident, due to which the claimant suffered
injuries. In the cross examination he has admitted that the
motorcycle that he was riding was not insured as on the date of
accident. The Tribunal extenso referred to the material on
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record and concluded that the claimant's vehicle was not
insured and its rider PW3 was not having a valid and effective
driving license as on the date of the accident. The Tribunal also
held that the claimant has failed to prove that he sustained
injuries due to the rash and negligent riding of the offending
motorcycle and dismissed the claim petition. In my view, the
conclusion so arrived at by the Tribunal is just and proper. I
find no reasons to interfere with the Judgment of the Tribunal.
For the reasons stated above, the appeal is devoid of
merits and it is liable to be dismissed.
8. Resultantly, the Miscellaneous First Appeal is
dismissed.
Sd/-
JUDGE
MRP
