Karnataka High Court
Smt. Sunita And Ors vs Sri. Ashok And Anr on 2 July, 2024
-1-
NC: 2024:KHC-K:4458-DB
MFA No.202484 of 2019
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 2ND DAY OF JULY, 2024
PRESENT
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR. JUSTICE RAJESH RAI K
MISCL. FIRST APPEAL NO.202484 OF 2019 (MV-D)
BETWEEN:
1. SMT. SUNITA
W/O SANJU PAWAR,
AGED ABOUT 33 YEARS,
OCC: HOUSEHOLD WORK,
R/O: JALAGERI LT-1,
DIST: VIJAYAPUR.
2. KAJAL
D/O SANJU PAWAR
AGED ABOUT 13 YEARS,
Digitally signed by OCC: STUDENT,
BASALINGAPPA
SHIVARAJ R/O: JALAGERI LT-1,
DHUTTARGAON
DIST: VIJAYAPUR.
Location: HIGH
COURT OF SINCE MINOR REP.
KARNATAKA BY NATURAL MOTHER
M/G/THE APPELLANT NO.1.
3. SRI. SHANKAR
S/O RUPLA PAWAR,
AGED ABOUT 71 YEARS,
OCC: AGRICULTURE,
R/O: SOMADEVAHATTI LT-1,
TQ: TIKOTA, DIST: VIJAYAPUR.
-2-
NC: 2024:KHC-K:4458-DB
MFA No.202484 of 2019
4. JAMABAI
W/O SHANKAR PAWAR,
AGED ABOUT 67 YEARS,
OCC: HOUSEHOLD WORK,
R/O: SOMADEVAHATTI LT-1,
TQ: TIKOTA, DIST: VIJAYAPUR.
...APPELLANTS
(BY SRI S.S. MAMADAPUR, ADVOCATE)
AND:
1. SRI. ASHOK
S/O SHYAMARAO JADHAV,
AGED ABOUT 41 YEARS,
OCC: SERVICE,
R/O: ADAKI GALLI, WARD NO.10,
NOW AT SHIVAJI NAGAR,
VIJAYAPUR - 586 101.
2. THE MANAGER,
NATIONAL INSURANCE CO. LTD.,
POREWAL BUILDING,
S.S. CROSS ROAD,
VIJAYAPUR - 586 101.
...RESPONDENTS
(BY SRI SHARANABASAPPA M. PATIL, ADVOCATE FOR R2;
NOTICE TO R1 IS SERVED)
THIS MFA IS FILED UNDER SECTION 173 (1) OF THE
MOTOR VEHICLES ACT, PRAYING TO SET ASIDE THE
JUDGMENT AND AWARD DATED 24.10.2019 PASSED BY THE
LEARNED I ADDITIONAL DISTRICT JUDGE AND MEMBER
M.A.C.T-II, VIJAYPUR IN M.V.C. NO.1600/2008 AND
CONSEQUENTLY ALLOW THE SAID PETITION AS PRAYED FOR,
IN THE INTEREST OF JUSTICE AND EQUITY.
-3-
NC: 2024:KHC-K:4458-DB
MFA No.202484 of 2019
THIS MFA COMING ON FOR HEARING THIS DAY,
ASHOK S. KINAGI J., DELIVERED THE FOLLOWING:
JUDGMENT
This Miscellaneous First Appeal is filed under Section
173(1) of Motor Vehicle Act challenging the judgment and
award dated 24.10.2019 passed in MVC No.1600/2008 by
I Addl. District Judge and MACT-II, Vijayapura (henceforth
referred as 'Tribunal') whereby the Tribunal rejected the
claim petition.
2. Parties to the appeal are referred to as per
their status before the Tribunal. The appellants are the
petitioners and the respondents are the respondents.
3. The facts leading rise to the filing of the appeal
briefly stated are that:
On 28.10.2007 at about 7.00 p.m., deceased Sanju
was proceeding from Yatnal to Lalageri on his bicycle
cautiously. When he came near Vithalwadi cross (near
Yatnal Tank), on Yatnal to Jalageri road, at that time, the
rider of the Hero Honda Motorcycle bearing Reg.No.KA-28-
Q-4019 came from Yatnal side in a rash and negligent
NC: 2024:KHC-K:4458-DB
manner and dashed to the bicycle of deceased Sanju, due
to which accident occurred and Sanju fell down from the
bicycle and sustained severe head injuries. Immediately
he was shifted to District Hospital, Vijayapura for
treatment and he succumbed to the injuries on
02.11.2007 in the hospital. It is contended that the
deceased Sanju was hale and healthy. He was aged 25
years and doing agricultural work and getting income of
Rs.6,000/- per month. He was maintaining the family of
the petitioners. Hence, the petitioners filed claim petition
under Section 166 of M.V. Act claiming compensation for
the death of the deceased Sanju in the road traffic
accident.
4. Though notice served, respondent No.1
remained absent and placed ex parte.
5. Respondent No.2 filed written statement
denying the claim petition and admits the existence of
insurance policy issued to the respondent No.1 for the
Motorcycle bearing Reg.No.KA-28-Q-4019. It is contended
NC: 2024:KHC-K:4458-DB
that, on the date of the alleged accident, the said
motorcycle was not involved in the alleged accident. The
petitioners in collusion with the respondent No.1 and
Police officials managed to implicate the motorcycle in the
accident to get the unlawful gain from the respondent
No.2-Insurance company. It is further contended that, the
rider of the motorcycle was not possessing valid and
effective driving license and the petitioners have not
proved the particular of type of vehicle. Hence, the
respondent No.2 prays to dismiss the claim petition
against the respondent No.2.
6. On the basis of pleadings, the Tribunal framed
relevant issues for consideration. In order to substantiate
the contention of claim petition, the petitioner No.1 was
examined as P.W.1 and got examined one witness as
P.W.2 and got marked documents as Exs.P.1 to P9. The
respondent No.2-Insurance Company examined its official
as RW.1 and got marked one document as Exs.R1 and 2.
NC: 2024:KHC-K:4458-DB
7. After assessment of oral and documentary
evidence, the Tribunal rejected claim petition. Being
aggrieved by the judgment and award passed by the
Tribunal, the petitioners filed the present appeal.
8. Heard the learned counsel for the petitioners
and learned counsel for the respondent No.2.
9. The learned counsel for the petitioners submits
that, the petitioners have proved that the accident was
occurred due to rash and negligent riding of the rider of
the offending motorcycle. He further submits that, the
charge-sheet is filed against the rider of the offending
vehicle and therefore it is clearly indicate that the said
vehicle was involved in the accident. Further, he submits
that the charge-sheet has not been challenged by the
respondents. Hence, he submits that the Tribunal without
considering the material placed on record, dismissed the
claim petition. He submits that the impugned judgment
passed by the Tribunal is arbitrary and erroneous. Hence,
on these grounds, he prays to allow the appeal.
NC: 2024:KHC-K:4458-DB
10. Per contra, learned counsel for the respondent
No.2-Insurance Company vehemently contend that, the
Tribunal after considering the evidence and documents
placed before it, the Tribunal rightly rejected the claim
petition, which does not call for any interference.
Accordingly, he prays to dismiss the appeal.
11. Perused the records and considered the
submission made by the learned counsel for the parties.
12. The only point that arises for our consideration
is:-
1. Whether the Tribunal is justified in
dismissing the claim petition filed by
the petitioners?
2. What order?
13. Point No.1: It is the case of the petitioners
that on 28.10.2007, the deceased Sanju was proceeding
on his bicycle and the rider of the offending motorcycle
bearing Reg.No.KA-28-Q-4019 dashed to the bicycle of the
NC: 2024:KHC-K:4458-DB
deceased Sanju due to which the accident occurred and
deceased Sanju sustained multiple injuries and he
succumbed to the injuries on 02.11.2007. In order to
establish that the accident was occurred due to rash and
negligent riding of the offending vehicle, the petitioner
produced and got marked certified copies of the FIR and
charge-sheet as Exs.P.1 and 6. From the perusal of Ex.P.1
discloses that FIR was registered against unknown
motorcycle and unknown rider. Ex.P.2 is the certified copy
of the complaint given against the unknown rider and
unknown motorcycle.
14. In the course of cross-examination of P.W.1, it
was elicited that on the date of accident, she came to
know that the rider Rangnath Rathod dashed to her
deceased husband, who was coming on his bicycle. The
Police have recorded the statement of P.W.1 under Section
161 of Cr.P.C. But, the P.W.1 did not disclose the name of
the rider of motorcycle before the Police and it is also
elicited that her father-in-law i.e. Shankar went to the
NC: 2024:KHC-K:4458-DB
Police Station and informed the Police regarding the
motorcycle number and name of the rider. But the
petitioners have not examined the said Shankar i.e.,
father-in-law of P.W.1 before the Tribunal. Further, it was
elicited that she has no idea who dashed to the bicycle of
her deceased husband - Sanju. Admittedly, P.W.1 is not
an eyewitness and she is not aware about the manner in
which the alleged accident took place and her evidence is
not sufficient to hold that the accident was occurred due to
rash and negligent riding of the rider of the offending
motorcycle.
15. The petitioners have also examined one Rangu
S/o Walu Rathod, who is alleged to be an eyewitness. He
has deposed that the accident was caused due to rash and
negligent riding of the motorcycle and dashed to the
bicycle of deceased Sanju, as a result of which, Sanju
sustained multiple injuries in the said accident. He
immediately rushed to the spot and noticed the number
motorcycle as KA-28-/Q-4019. In the course of cross-
- 10 -
NC: 2024:KHC-K:4458-DB
examination, it was elicited that he does know know
Ranganth Rathod i.e., alleged rider of the motorcycle. As
per the charge-sheet, the rider of the motorcycle is shown
as Rangnath Rathod. If at all, P.W.2 is said to be an
eyewitness, nothing has been prevented P.W.2 to lodged a
complaint before the Police informing about the alleged
incident. But, P.W.2 has not lodged a complaint about the
alleged accident. Further, it is elicited during the course of
cross-examination that P.W.2 has not informed about the
name of rider of the vehicle to Shankar i.e., father-in-law
of the P.W.1 and it was elicited that the rider of the
motorcycle ran away from the spot and he did not know
who informed him about the rider of the motorcycle.
16. Further in the course of cross-examination of
P.W.2, it is elicited that by the time Police reached, he left
the spot and he intimated the Police regarding the incident
on the next date of accident and he admitted that the
Police have not recorded the statement on the same day.
From the perusal of entire evidence of P.W.2, he never
- 11 -
NC: 2024:KHC-K:4458-DB
stated that he knows reading and writing of Kannada
knowledge. From perusal of the entire record, it is clear
from the FIR that the case was registered against some
unknown motorcycle and name of the driver was not
known and the FIR was registered on 29.10.2007 and the
statement of Shankar was recorded on 31.10.2007 by the
Investigating Officer. The petitioners have not examined
the Shankar, who is the complainant as he was the proper
person to speak about how he came to know the name of
the rider and motorcycle number. Therefore, adverse
inference has to be drawn against the petitioners and
further according to the complainant one Somu Rathod
informed the complainant Shankar and the said Somu
Rathod was also not examined before the Tribunal for the
reason best known to the petitioners.
17. After having gone through the oral and
documentary evidence, the petitioners have failed to
establish that the accident was occurred due to rash and
negligent riding of the motorcycle by its rider and further
- 12 -
NC: 2024:KHC-K:4458-DB
respondent No.2 - Insurance company has proved that the
vehicle has been falsely implicated in order to claim the
compensation. Further, the respondent No.2 has
successfully established the defence pleaded by it in the
written statement and therefore the Tribunal was justified
in dismissing the claim petition. Hence, in view of the
above discussion, we do not find any error in the
impugned judgment and we decline to interfere with the
impugned judgment. Accordingly, point No.1 is answered
in the Affirmative.
18. Point No.2: For the foregoing reasons, we
proceed to pass the following:
ORDER
i. The Miscellaneous First Appeal filed
by the petitioners is hereby
dismissed.
ii. The judgment and award dated
24.10.2019 in MVC No.1600/2008
- 13 -
NC: 2024:KHC-K:4458-DB
passed by the Tribunal is
confirmed.
iii. No order as to costs.
Sd/-
JUDGE
Sd/-
JUDGE
BL
