Karnataka High Court
Pundalik Krishna Masekar vs Kempanna Ningappa Sankeshwar on 12 February, 2024
Author: V.Srishananda
Bench: V.Srishananda
-1-
NC: 2024:KHC-D:3388
MFA No. 100166 of 2014
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 12TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE V.SRISHANANDA
MISCELLANEOUS FIRST APPEAL NO.100166 OF 2014 (MV-I)
BETWEEN:
SRI. PUNDALIK KRISHNA MASEKAR,
AGE: 47 YEARS, OCC: AGRICULTURE,
R/O: HALKARNI, TQ: KHANAPUR,
DIST: BELAGAVI.
...APPELLANT
(BY SRI. SANJAY S.KATAGERI, ADVOCATE)
AND:
1. SHRI. KEMPANNA NINGAPPA SANKESHWAR,
AGE: 41 YEARS, OCC: BUSINESS,
R/O: ASHOKNAGAR, KHANAPUR,
DIST: BELAGAVI.
2. THE DIVISIONAL MANAGER,
IFFCO TOKIO GENERAL INSURANCE CO. LTD.,
"SUDEV PLAZA" 3RD FLOOR, DAJIBAN PETH,
BHARATHI
OPPOSITE LAXMI TEMPLE, HUBLI.
HM
Digitally signed by
BHARATHI H M
...RESPONDENTS
Date: 2024.02.21
11:59:34 +0530 (BY SRI. G.N. RAICHUR, ADVOCATE FOR R2;
R1 SERVED)
THIS M.F.A. IS FILED U/SEC.173(1) OF MV ACT 1988,
AGAINST JUDGMENT AND AWARD DTD:01.10.2013, PASSED IN
MVC.NO.823/2013 ON THE FILE OF THE MEMBER, MACT AND
SENIOR CIVIL JUDGE, KHANAPUR, DISMISSING THE PETITION FILED
U/SECT.166 OF MV ACT.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
-2-
NC: 2024:KHC-D:3388
MFA No. 100166 of 2014
JUDGMENT
Heard Sri.Sanjay S. Katageri, learned counsel for the
appellant and Sri.G.N.Raichur, learned counsel for
respondent No.2.
2. Unsuccessful claimant has filed the present
appeal challenging the validity of the judgment and award
passed in MVC No.823/2013 dated 01.10.2012 on the file
of Motor Accidents Claims Tribunal, Khanapur.
3. Brief facts of the case are as under:
A claim petition came to be filed under Section 166
of Motor Vehicles Act contending that on 17.07.2012 at
about 4.30 p.m. on Khanapur - Belagavi road (NH.4A)
near the house of one Sri.Kocheri, driver of the Tata Ace
Magic, bearing No.KA.22/P.5970 drove the same in rash
and negligent manner and dashed against a she buffalo
belonging to the claimant and 17 days later, the she
buffalo died on account of accidental injuries and sought
for appropriate compensation.
NC: 2024:KHC-D:3388
4. Claim petition, was resisted by filing necessary
written statement by the Insurance Company of the
offending vehicle.
5. Tribunal raised following issues:
"1. Whether the petitioner proves that on
17.02.2012 at about 4.30 hours, on
Kharanapur-Belgaum road, near the house
of one Shri. Kocheri, she buffalo carrying
calk, owned by petitioner, sustained
grievous injuries in the accident occurred
due to rash or negligent, driving of the
vehicle, bearing registration No:KA-22/P-
5970, by its driver and later it succumbed
to the said injuries?
2. Whether the petitioner is entitled to for
compensation? If so, what amount and
from whom?
3. What order?"
6. In order to prove the case of the claimant,
claimant got examined himself as P.W.1 and placed on
record, nine documentary evidence on record which are
marked as Ex.P.1 to Ex.P.9 comprising of certified copy of
FIR and complaint, English translation of the complaint,
certified copy of spot mahajar, certified copy of the map,
NC: 2024:KHC-D:3388
MVI report, wound certificate, P.M. report and certified
copy of the charge sheet.
7. On behalf of respondents, no documentary
evidence is placed on record.
8. Thereafter, Tribunal heard the parties in detail
and taking note of the fact that the material evidence
placed on record, recorded a categorical finding that there
was a rash and negligent driving on the part if the driver
of Tata Ace Magic vehicle, but relying on the provision of
Section 8B of National Highway Act, 1956 and Section 37
of the Control of National Highway (Land and Traffic Act,
2002), dismissed the claim petition.
9. Being aggrieved by the same, claimant has
preferred the present appeal.
10. Sri.Sanjay S. Katageri, learned counsel for
appellant/claimant, reiterating the grounds urged in the
appeal memorandum sought for allowing the appeal by
contending that when the she buffalo was being brought
NC: 2024:KHC-D:3388
back to the house after gracing it in the area, accident
has occurred. Therefore, it cannot be construed that the
accident is on account of stray cattle on National Highway
attracting the provisions of Section 8B of National
Highway Act, 1956 or for that matter Section 37 of
Control of National Highway (Land and Traffic Act, 2002)
and Tribunal has not bestowed its attention by dismissing
the claim petition and sought for allowing the appeal.
11. Per contra Sri.G.N.Raichur, learned counsel
supported the impugned judgment stating that provisions
of National Highway Act, 1956 has rightly upheld by the
Tribunal in view of the specific admission made by C.W.1
in hiss cross - examination and sought for dismissal of the
appeal.
12. In view of the rival contentions of the parties,
this Court perused the material on record, meticulously.
13. On such perusal of the material on record, it is
crystal clear that the incident has occurred in middle of the
NC: 2024:KHC-D:3388
road and not side of the road as is claimed in the
complaint.
14. P.W.1 in his cross examination has clearly
admitted that he saw the vehicle coming and thereafter,
he has thrown a stone on the she buffalo which died in the
incident, so as to move it away from the road. However,
for the reasons best known, said she buffalo did not move
away, whereby the vehicle has dashed against it.
15. Further, provisions of Section 8B of National
Highway Act, 1956 and Section 37 of the Control of
National Highway (Land and Traffic Act, 2002) has been
bestowed by the Tribunal in paragraph Nos.13 to 15 in the
impugned judgment itself. The same are culled out here
under for ready reference:
"13. Section 8b of National Highway Act, 1956
states:
8b Punishment for mischief by injury to National
highway - Whoever commits mischief by doing any
act which renders, or which he knows to be likely to
render any national highway rendered to in sub
section (1) of Section 8A impassable or loss safe
traveling or conveying property, shall be punished
with imprisonment of either of either description for a
NC: 2024:KHC-D:3388
term which may extent to five years, or with a fine, or
with both.
14. Section 3(K) of Control of National
highways (Land and Traffic) Act, 2002 states:
"Prescribed" means prescribed by rules made
under this Act.
15. Section 37 of Control of National highways
(Land and Traffic) Act, 2002 states:
37 Prohibition to leave vehicles, or animals, in
dangerous position - (1) No person in charge of,
or in possession of, any vehicle or animal shall
allow such vehicle, or animal, to stand or proceed
on a Highway, unless the same is under such
safety control as may be prescribed."
16. Admittedly, the she buffalo was on the middle of
the road at the time of accident. As per the above provision,
no person can allow a stray cattle to move on or stay on the
National Highway. In the National Highway, the vehicles are
expected to move with a reasonable speed. Suddenly, if a
cattle was to cross the National Highway, it results in abruption
of the traffic.
17. Though the driver is expected to expect an
unexpected event that may happen on the road and cautiously
drive the vehicle, it is not uncommon that the stray cattle like
she buffalo in the case on hand may suddenly cross the road
resulting in loss of control over the vehicle, that too on a
NC: 2024:KHC-D:3388
National Highway, where the drivers are expected to move with
reasonable speed.
18. The regulations are therefore, properly made as
discussed supra.
19. It is the duty of the person, who graces the cattle to
take necessary and reasonable care, so as to prevent it from
moving in a highway.
20. Further, after gracing the cattle, the claimant was in
charge of the cattle and must have taken reasonable care and
caution in holding the rope that was tied to the she buffalo and
when there is no movement of the vehicle, cattle should have
been made to cross the road.
21. In the case on hand, in the complaint itself, the
claimant has not stated that he was holding the rope and
despite the same, cattle passed. On the contrary, the
complaint averments shows that one of the said cattle already
passed and another cattle was about to pass and at that
juncture, he saw the offending vehicle and threw a stone on the
she buffalo and despite the same, she buffalo could not avoid
the accident.
NC: 2024:KHC-D:3388
22. Therefore, there is no merit in the case of the
appellant that the accident has occurred by the side of the
road.
23. Tribunal has rightly appreciated in the impugned
judgment about the said factual aspect of the matter and
rightly dismissed the claim petition.
24. Even after reappreciation of the material on record,
this Court does not find any legal infirmity or perversity in the
reasoning recorded by the Tribunal in the impugned judgment
so as to allow the appeal.
25. Accordingly, following:
ORDER
(i) Appeal is meritless and hereby dismissed.
(ii) No order as to costs.
Sd/-
JUDGE
KAV
