Sri Purushotham Vs Athma N

THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 10.09.2012 PASSED IN MVC NO.564/2007 ON THE FILE OF THE III ADDITIONAL DISTRICT JUDGE, MEMBER, MACT, D.K., MANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

¶25

IN MFA NO. 11509/2012

¶26

BETWEEN:

¶27

BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD. NO.107, 1ST FLOOR, CRYSTAL ARCADE, BALMATTA ROAD, MANGALORE-575 001. REP. BY ITS REGIONAL OFFICE NO. 107, MISSION ROAD, BANGALORE REP. BY ITS ASST VICE PRESIDENT (CLAIMS)

¶28

...APPELLANT

¶29

(BY SMT. H R RENUKA, ADVOCATE)

¶30

AND:

¶31

PURUSHOTHAM S/O SRINIVASAYYA, AGED ABOUT 55 YEARS, R/O MANDARA, ULLASNAGAR, KAVOOR, MANGALORE, D.K-575 015

¶32

ATHMA N ADULT,

¶33

3 - NC: 2026:KHC:17634 MFA No. 2209 of 2013 C/W MFA No. 11509 of 2012

¶34

HC-KAR

¶35

GREEN HILL APARTMENTS BLOCK-1A, KAPIKAD BEJAI, I CROSS, MANGALORE, D.K-575 001.

¶36

...RESPONDENTS (BY SRI. PUNDIKAISHWARA BHAT, ADVOCATE FOR R1 NOTICE TO R2 IS HELD SUFFICIENT V/O DTD 1.10.2015)

¶37

THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 10.09.2012 PASSED IN MVC NO.564/2007 ON THE FILE OF THE III ADDITIONAL DISTRICT JUDGE, MEMBER, MACT, D.K., MANGALORE, AWARDING A COMPENSATION OF Rs.1,72,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION.

¶38

THESE APPEALS, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

¶39

CORAM: HON'BLE MR. JUSTICE C.M. POONACHA

¶40

ORAL JUDGMENT

¶41

MFA No.11509/2012 is filed by the insurer. MFA No.2209/2013 is filed by the claimant. Both the appeals are filed impugning the judgment and award dated 10.09.2012 passed in MVC No.564/2007 by the III Additional District Judge, Member, MACT, D.K., Mangalore¹ .

¶42

The insurer impugns the finding of the Tribunal on the ground of involvement of the insured vehicle. The claimant

¶43

1 hereinafter referred to as the 'Tribunal'

¶44

4 - NC: 2026:KHC:17634 MFA No. 2209 of 2013 C/W MFA No. 11509 of 2012

¶45

HC-KAR

¶46

assails the findings of the Tribunal regarding negligence as also seeks for enhancement of the quantum of compensation.

¶47

Heard the submissions of the learned counsel for the

¶48

claimant and the learned counsel for the insurer.

¶49

It is the case of the claimant that on 18.09.2005, when he was riding scooter bearing No.CNX-3738, another motor cycle bearing No.KA-19S-5898 (offending motor cycle) came and hit the motor cycle, which was driven by the claimant and caused the accident in question. Claiming compensation for the injuries sustained in the said accident, the claimant filed a claim petition arraying the owner and insurer of the offending motor cycle as respondent Nos.1 and 2 respectively.

¶50

The first respondent - owner entered appearance before the Tribunal and admits the accident. The second respondent - insurer admits that the offending vehicle was insured with it, however denies the involvement of the insured vehicle in the accident in question. The Tribunal, has partly allowed the claim petition and awarded a total compensation of `3,44,000/together with interest at 6% pa. The Tribunal has held that the

¶51

5 - NC: 2026:KHC:17634 MFA No. 2209 of 2013 C/W MFA No. 11509 of 2012

¶52

HC-KAR

¶53

claimant was negligent to the extent of 50% in causing the accident in question and the rider of the insured motor cycle was negligent to the extent of 50%. Accordingly, out of the compensation assessed, the Tribunal has awarded 50% of the same in a sum of `1,72,000/-.

¶54

It is forthcoming that one Sri Vishwanath was riding as a pillion rider along with the claimant. Pursuant to the complaint given by him, Crime No.207/2005 (Ex.R2) was registered by the police authorities. After investigation, the police have filed a charge sheet (Ex.R5) against the claimant. The claimant has subsequently filed a private complaint, which was numbered as Crime No.46/2006 and subsequently, registered as CC No.1972/2006. The police authorities, after investigation, have filed a 'B' report (Ex.R6) in the said CC No.1972/2006.

¶55

The wife of the claimant was examined as PW.1, the pillion rider as PW.2 and three doctors were examined as PWs.3, 4 and 5. Exs.P1 to P140 have been marked in evidence on behalf of the claimant. The representatives of the insurer were examined as RWs.1 and 2. Exs.R1 to R9 have been marked on behalf of the respondent - insurer.

¶56

6 - NC: 2026:KHC:17634 MFA No. 2209 of 2013 C/W MFA No. 11509 of 2012

¶57

HC-KAR

¶58

In the complaint (Ex.R2) lodged by PW.2 it is stated that when the claimant was riding his motor cycle (CNX 3738), he hit a cow causing the accident, in which he sustained injuries. In the cross-examination, PW.2 admits to having lodged the complaint (Ex.R2). In the spot mahazar (Ex.P6) there is no mention of the insured vehicle. The sketch (Ex.P7) also does not show the presence of the insured vehicle.

¶59

The Tribunal, solely on the ground that the insurer has not proved regarding the final outcome of the 'B' report, has recorded a finding of contributory negligence by holding that the claimant was negligent to the extent of 50% in causing the accident while the rider of the offending motor cycle was negligent to the extent of 50%. There is no basis on which the Tribunal has recorded the finding of negligence of 50% each. On the other hand, although the Tribunal has noticed that PW.2 has admitted to having lodged the complaint (Ex.R2), the consequential effect of the same has not been properly appreciated.

¶60

7 -

¶61

NC: 2026:KHC:17634 MFA No. 2209 of 2013 C/W MFA No. 11509 of 2012

¶62

HC-KAR

¶63

It is clear and forthcoming from the aforementioned that that the pillion rider (PW.2) who was riding along with the claimant, when the accident has occurred, has at an undisputed point of time lodged the complaint (Ex.R2) wherein, he mentioned that when the claimant was riding the scooter, he hit a cow causing the accident. The police authorities have also filed a charge sheet against the claimant. Although the claimant has subsequently filed a private complaint (Crime No.46/2006), the police authorities have filed a 'B' report in the said private complaint (CC No.1972/2006).

¶64

As already noticed above, even in the spot mahazar (Ex.P6) there is no reference to the insured vehicle. The testimony of PW.2 is clearly contrary to the complaint lodged by him (Ex.R2).

¶65

In view of the aforementioned circumstances, in the absence of material to demonstrate the involvement of the insured vehicle in the accident in question, the Tribunal erred in granting compensation and fastening 50% of the liability to pay the same on the owner and insurer of the insured vehicle.

¶66

8 - NC: 2026:KHC:17634 MFA No. 2209 of 2013 C/W MFA No. 11509 of 2012

¶67

HC-KAR

¶68

In the present case, the claim for compensation having been made by the rider of the scooter and material on record indicating that the accident occurred when the claimant hit a cow, the question of awarding compensation in proceedings under Section 166 of the Motor Vehicles Act, 1988 does not arise.

¶69

14. In view of the aforementioned, the following:

¶70

ORDER

¶71

i. MFA No.11509/2012 is allowed;

¶72

ii. MFA No.2209/2013 is dismissed;

¶73

iii. The judgment and award dated judgment and award dated 10.09.2012 passed in MVC No.564/2007 by the III Additional District Judge, Member, MACT, D.K., Mangalore is set aside;

¶74