B.C. Nagarathna vs T. Jayakeerthi and Others

Rathnakala, J—This appeal is filed against the judgment and award passed by the Senior Civil Judge & Addl. MACT, Holalkere (hereinafter referred to as ''the Tribunal'' for short) on his file in M.V.C. No. 322/2011 dated 9.4.2013 whereby the claim petition filed by the claimant came to be dismissed. Briefly stated the facts, the appellant herein filed a petition under Section 166 of the Motor Vehicles Act before the Tribunal. Her case was, her deceased son Vinay alias Sachin on 18.5.2011 was proceeding on a motorcycle bearing registration No. KA-16/U-7252 as a pillion rider from B. Durga towards Adanur; near Rangavvanahalli at 11.30 a.m., the rider of the motorcycle since drove the vehicle in a rash and negligent manner without observing traffic rules and regulations; the motorcycle toppled down; due to the impact, deceased Vinay fell down and sustained fatal injuries; he was taken to PHC, Chikkajajur for treatment and from there to City Central Hospital, Davangere, and then to Kasturba Hospital, Manipal. He succumbed to the injuries at Kasturba Hospital on 21.5.2011. As on the date of the accident, he was hale and healthy, was a student and was also earning Rs. 8,000/- per month from agricultural operation. One lakh rupees was spent for his treatment. The accident was due to rash and negligent riding of the motorcycle bearing No. KA-16/U-7252 by its rider. First respondent is the rider of the said motorcycle. Second respondent is the owner of the motorcycle and third respondent is the insurer. As on the date of the incident, the policy was in force and all the respondents are jointly and severally liable to pay compensation.

All the three respondents were served and filed their respective objection statements.

After completion of the pleadings, evidence was let in; PWs-1 and 2 were examined for the petitioner/appellant herein; documents Exs. P1 to P15 were marked; on behalf of the respondents, RWs-1 and 2 were examined and documents Exs. R1 to R4 were marked. After giving audience to both sides, the learned Tribunal observed that the deceased himself was riding the motorcycle, fell down from the bike, sustained injuries and subsequently succumbed to the injuries. The motorcycle belongs to the second respondent, who is none other than the father of the deceased. The deceased sustained injuries due to his own negligence while riding the motorcycle. In order to claim the compensation, the petitioner has created a false story, thereby the petition came to be dismissed.

Sri. Shantappa, learned Counsel for the appellant submits, the Tribunal fell into error in disbelieving the case of the claimant and appreciating the evidence of RW-2. RW-2/Doctor has deposed that he had made entries in the MLC register to the effect that the father of the deceased had given opinion that the deceased sustained injuries due to burst of tyre. The Tribunal without judicious appreciation of the evidence has hastily come to the conclusion that the accident occurred due to the negligence of the deceased only while riding the motorcycle. The appellant has claimed Rs. 19,00,000/- towards compensation having lost her grown up son, who was her only hope in the evening of life. She is entitled for the compensation from the rider, owner and insurer of the motorcycle.

Sri. A.N. Krishnaswamy, learned Counsel appearing for respondent No. 3/insurer while opposing the petition takes support from the observation made by the Tribunal in the body of its order.

We have given our anxious consideration to the rival submissions made at the Bar and have perused the impugned judgment and the records of the Tribunal. The incident is said to have occurred on 18.5.2011 at 11.30 a.m. The claimant apart from examining herself as PW-1 examined the complainant as PW-2, who claimed himself as the eye-witness. During his cross-examination, it was elicited that he was one kilometre away from the spot when the incident occurred and the father of the deceased works as A.S.I. at Chikkajajur Police Station. The Officer of the Insurance Company brought on record that the owner of the vehicle is none other man the father of the deceased and in the MLC extract of the hospital, information was given by me father that while proceeding on a motorcycle, due to burst of the tyre, the deceased fell down and sustained injuries. The Tribunal has appreciated the evidence adduced for the Insurance Company, which was supported by me documentary proof i.e., the MLC extract of the hospital and the owner of the vehicle had not adduced rebuttal evidence. In his objection statement, he had admitted all the material averments of the petition as true. The fact that the owner of the motorcycle was working as A.S.I. of Chikkajajur Police Station, prompted the Tribunal to suspect the veracity of the evidence of PW-2 and it was also noticed that much prior to filing of the complaint, information was given to the Doctor on duty in City Central Hospital, Davangere about the incident. The appellant had suppressed the MLC extracts of the Government Hospital where the deceased was firstly treated and that has influenced the Tribunal to dismiss the petition.

Admittedly, the owner of the vehicle was none other than the father of the deceased. But in the claim petition, this fact was never disclosed. As per the FIR, the complaint is registered at 10.00 p.m. of 18.5.2011 by one Sri. Prafulla Kumar, a person from the neighbourhood of me deceased claiming to be the eyewitness of the incident. Said Prafulla Kumar before the Tribunal has admitted that he was not present in the spot at the time of the incident. As per Ex. R2, the deceased was taken to City Central Hospital at Davangere at 1.55 p.m. on 18.5.2011 and the history was given that while riding the motorcycle due to tyre burst, the deceased lost control of the bike and fell down. It was for the claimant, after coming to know the nature of the defence, to establish that the deceased was only a pillion rider but not the rider of the motor cycle. The fact that the owner of the vehicle/father of the deceased is an A.S.I. of the jurisdictional Police Station further fortifies the doubt expressed by the Tribunal about the genuineness of the case itself. Having gone through the evidence oral and documentary, we find that the order of the Tribunal is well reasoned and does not call for interference. Hence, the appeal is dismissed.