Smt. Geetha Vs B H Hussain Basha

(BY SMT.GEETHARAJ, ADVOCATE FOR R3; RESPONDENT NO.1 IS SERVED AND UNREPRESENTED; NOTICE TO R2 IS DEEMED TO HAVE BEEN SERVED VIDE ORDER DATED 24.11.2023)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 03.12.2018 PASSED IN MVC NO.99/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE AND MEMBER MACT, KADUR, CHIKKAMAGALUR DISTRICT, DISMISSING THE CLAIM PETITION FOR COMPENSATION.

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THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MRS. JUSTICE P SREE SUDHA

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ORAL JUDGMENT

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This appeal is filed by the appellants/claimants

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against the judgment and award dated 03.12.2018 passed

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in MVC No.99/2011, by the Senior Civil Judge and MACT.,

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3 - NC: 2026:KHC:33108 MFA No. 1837 of 2019

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HC-KAR

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at Kadur, Chikkamagalur District, seeking for

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enhancement of the compensation.

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Heard the arguments of the learned counsel for the appellant and learned counsel for respondent No.3Insurance Company.

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The ranks of the parties are retained as per Tribunal for the sake of convenience.

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One Venkatesh met with an accident on 08.06.2010 and died. Subsequently, his wife, children and parents filed claim petition claiming compensation of Rs.10,00,000/-. Tribunal considered the entire evidence on record and dismissed the claim petition. Aggrieved by the said order, they preferred the present appeal.

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Learned counsel for the appellants/claimants have mainly contended that on 08.06.2010, while

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Venkatesh and Thimmanaika were going on a bicycle on the left side of the road, the driver of the auto rickshaw

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4 - NC: 2026:KHC:33108 MFA No. 1837 of 2019

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HC-KAR

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bearing Reg.No.KA-18/5897 came from opposite direction in a rash and negligent manner with high speed, dashed the bicycle. As a result, both of them fell down and sustained grievous injuries, but Venkatesh died on 11.06.2010. He was doing agricultural work and earning Rs.8,000/- per month.

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Learned counsel further contended that the Tribunal failed to consider the evidence at Exs.P1 to P51 produced by the petitioners, but instead relied upon Exs.R2 and R3 and also took into consideration the fact that the accused was acquitted in C.C. No. 621/2010. The Tribunal ought not to have relied upon the same, but in turn, relied upon the exhibits produced by the petitioners. It failed to properly consider the documents produced by the petitioners. Hence, they pray that the order passed by the Tribunal is to be set aside.

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After the service of notice, all the respondents

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appeared before the Tribunal. The respondent No.3-

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5 - NC: 2026:KHC:33108 MFA No. 1837 of 2019

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HC-KAR

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Insurance Company filed counter and stated that accident

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was not caused by driver of the auto rickshaw bearing registration number KA-18/5897 as alleged in the petition and police records. It is further stated that petitioner by colluding with respondent No.1 and 2 and with the help of the Kadur police, implicated the auto rickshaw for wrongful dealing. First respondent has no valid driving licence and second respondent permitted him to drive the auto rickshaw knowing that he has no valid driving licence and thus, violated the terms and conditions of insurance policy and respondent No.2 has no fitness certificate to run the alleged auto and not renewed the fitness certificate as on the date of accident.

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On behalf of the petitioners, wife of the deceased was examined as PW.1 and got marked Exs.P.1

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to P51, whereas insurance company has examined its Development Officer as RW.1 and also got marked Exs.R1 to R27.

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6 - NC: 2026:KHC:33108 MFA No. 1837 of 2019

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HC-KAR

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Considering the facts and circumstances of the

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case, it is for the petitioners to prove the manner of accident and involvement of the offending vehicle and also rash and negligence on the part of driver of the auto rickshaw. In this case, they have not examined anyone except PW.1 who is not an eye witness. The main contention of the insurance company is that the auto rickshaw was implicated falsely. Even the petitioners have not examined the rider of the bicycle before the Court though he is an eye witness to the occurrence of the accident. The petitioners have filed copies of the depositions in C.C.No.921/2010, wherein all the witnesses, including the rider of the bicycle, have stated that they have not seen the auto at the time of accident. As such, the driver of the auto was acquitted and even the auto was not seized at any point of time.

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Further, the accident had occurred on 08.06.2010 and complaint was given on 11.06.2010. The learned counsel for the appellants has stated that there is

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7 - NC: 2026:KHC:33108 MFA No. 1837 of 2019

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HC-KAR

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only two days delay in lodging the complaint. However, the same was not considered by the Tribunal. Charge sheet is filed against the driver of the auto rickshaw. But, mere filing of charge sheet is not sufficient to establish that there is involvement of the offending vehicle and also rash and negligence of the driver of the vehicle.

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As the petitioners before the Tribunal failed to prove the above contentions, the Tribunal rightly considered the evidence and documents filed by the respondents and dismissed the claim petition. This Court finds no reason to interfere with the said order.

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In the result, appeal is dismissed as devoid of merits.

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Sd/(P SREE SUDHA) JUDGE

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PSJ List No.: 2 Sl No.: 52

Smt. Geetha v. B H Hussain Basha

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Smt. Geetha v. B H Hussain Basha

Case brief

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