Radha vs P. Clinton Vaz

Aravind Kumar, J.—This is a claimant''s appeal challenging the correctness and legality of judgment and award dated 11.07.2008 passed by Civil Judge (Sr. Dn.), Kundapura, in MVC No. 1820/01, whereunder claim petition filed by claimants, came to be dismissed.

Heard Sri. Pavana Chandra Shetty, learned counsel appearing for appellants/claimants and Sri. A.M. Venkatesh, learned counsel appearing for respondent No. 3. Respondent Nos. 1 and 2 are served and unrepresented.

It is the contention of Sri Pavana Chandra Shetty, learned counsel appearing for appellants/claimants that Tribunal has committed a serious error in dismissing the claim petition on the ground that claimants have failed to establish that deceased Laxman Kharvi had sustained grievous injuries in a road traffic accident that occurred on 24.03.2001 and on account of said injuries sustained, he had succumbed to same. He contends that evidence tendered by claimants together with inquest mahazar, Ex. P-4, was sufficient enough to arrive at a conclusion that deceased had sustained injuries in the road traffic accident that occurred on 24.03.2001 involving the offending vehicle and as such, liability ought to have been fastened on third respondent by allowing the claim petition. He would also submit that compensation awarded by Tribunal is abysmally on the lower side and seeks for enhancement of compensation.

Per contra, Sri A.M. Venkatesh, learned counsel appearing for respondent No. 3 has supported the judgment and award passed by Tribunal and submits that there is no illegality committed by Tribunal and prays for dismissal of the appeal.

Having heard the learned Advocates appearing for, parties and on perusal of judgment and award in question as also records secured from Tribunal, it would indicate that claimants had sought for payment of compensation of Rs. 10,00,000/-. It was contended that on 24.03.2001 at about 9.30 p.m. Sri Laxman Kharvi, husband of first petitioner and father of petitioners 2 to 4 were walking on the side of mud road from Angally towards Basroor Village, and at the point of time, second respondent who was driving a Hero Honda motorcycle bearing registration No. KA-20-J-559 in a rash and negligent manner and proceeding towards Kundapura, dashed against said Laxman Kharvi and due to said impact, he fell down and sustained grievous injuries and succumbed to said injuries. Hence, compensation was sought for.

Respondent Nos. 1 and 2 before Tribunal were placed ex-parte. On service of summons, third respondent-insured appeared and filed its statement of objections and denied the petition averments in its entirety. Issue Nos. 1 and 2 framed by Tribunal reads as under:

(i) Whether the petitioners prove that the deceased Laxmana Kharvi had met with an accident on 24-03-2001 at about 4-30 pm., at Anagalli Road of Angalli Village, while he was walking on the side of the mud road from Anagalli towards Basrur?

(ii) Whether the petitioners prove that, the said accident was occurred due to the rash and negligence on the part of the rider of the Motor Cycle bearing Reg. No. KA-20-A-559 and the deceased had sustained fatal injuries on his person and died due to the said injuries?

Issue No. 1 came to be answered in the affirmative. Issue No. 2 came to be answered in the negative by arriving at a conclusion that petitioners had failed to prove that motorcycle in question was involved in the accident. To arrive at said conclusion, evidence tendered by both the parties have been considered and analysed by the Tribunal. It can be noticed that Tribunal has found that P.W. 1 namely, second claimant is not an eye witness to the accident in question. P.W. 1 has stated that he came to know about the accident as informed by D.W. 3-Sri. Vidyadhara Prabhu. D.W. 3 in his examination-in-chief stated that deceased Laxmana Kharvi was working in a shop and on 24.03.2001 at about 10.00 p.m. and was proceeding from Kundapura to Basrur at that time he found the dead body at a distance of 200 meters near the railway bridge and as such, he informed the son of deceased. He has also stated that he saw about 2 or 3 motorcycles were passing on that road and had pleaded his inability to state the number of vehicles. He also pleaded his inability to state as to how the accident in question had occurred. Tribunal has found that there is inconsistencies at large in the evidence and statement of P.W. 1 as well as D.W. 3 and as such, it held their statements cannot be believed after taking note of the fact that even time of the accident has not been stated by these two witnesses correctly.

Though, D.W. 2 was examined on behalf of insurer, he has stated that as per his investigation he came to know that Shailash Kharvi-second respondent had caused the accident and he arrived at such a conclusion based on the statement given to him by P.W. 2. In his cross-examination he has admitted that said Sri. Vidyadhara Prabhu-D.W. 3 had not at all furnished any such statement before him. He has also admitted that there was no information available from Sri. Vidyadhara Prabhu recording the accident as per the investigation file. Thus, it has been clearly held that D.W. 3-Sri. Vidyadhara Prabhu had not given statement before the police about how the accident in question had occurred and which was the vehicle involved in the said accident. It is because of this inconsistency,. Tribunal has rightly come to a conclusion that petitioners have failed to prove that the motorcycle bearing registration No. KA-20-J-559 driven by second respondent herein had caused the accident and also held there was no material available on record to establish that second respondent was riding the said vehicle at the time of accident.

Though, D.W. 3 in his examination-in-chief states that he had seen the accident in question, in his cross-examination he admits that he is not an eye witness to the accident. He also admits that by the time he went to the spot of accident, deceased Kharvi was already lying with injuries and said cross examination has been extracted at paragraph 13 of the judgment and award in question. After analysing entire evidence, Tribunal has rightly come to a conclusion that claimants had failed to prove that deceased had sustained injuries in a road traffic accident that occurred on 24.03.2001 on account of offending vehicle causing the said injuries. There is no infirmity, whatsoever, in the finding recorded by the Tribunal.

In the light of above discussion, I am of the considered view that there is no infirmity committed by the Tribunal to arrive at this conclusion. For the reasons aforestated I proceed to pass the following:

ORDER

(I) Appeal is hereby dismissed.

(II) Judgment and award dated 11.07.2008 passed by Civil Judge (Sr. Dn.), Kundapura, in MVC No. 1820/01, is hereby affirmed.

(III) No costs.

(IV) Registry to retransmit the records to jurisdictional Tribunal.