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2010 DIGILAW 914 (KAR)

NAMADEV S/O MITU RATHOD v. VENU S/O POMU LAMANI

2010-08-24

N.K.PATIL, S.N.SATYANARAYANA

body2010
Judgment :- N.K. Patil, J. This is the claimant’s appeal arising out of the Judgment and Award dated 8.2.2007 passed in MVC No.933/2004 on the file of MACT-III, Bijapur. The Claim petition filed by the appellant has been dismissed, hence, the appellant presented this appeal. 2. The brief facts of the case are:- The appellant was riding his Bajaj M-80 two wheeler vehicle bearing registration No.KA-28-H-2792 from Hadagali towards Hadagali Tanda at about 8.p.m. on 21.6.2004 with one Dharamu Rathod as a pillion rider of his motor cycle. He is riding the said vehicle slowly and cautiously by observing all the traffic rules and regulations. When he was riding the said vehicle, 2 kms near Hadagali Tanda, Tum-Tum bearing registration no.KA-28-8850, which was being driven by its driver at a very high speed in a rash and negligent manner, came from opposite direction and dashed against the petitioner’s motor cycle, on account of which, he fell down and sustained grievous injuries and he became un-conscious and he was shifted to District Hospital, Bijapur and admitted as inpatient. The driver of Tum-Tum vehicle lodged a complaint in the Rural Police Station, Bijapur, on the basis of which, a case was registered against the appellant. It is the case of the appellant that, he was not aware of criminal case filed against the appellant nearly more than 3 months, during which period he was bed ridden and later on, he came to know about the criminal case filed against him. After verification from the Police Station, he filed a private complaint No.193/2004 on 4.10.2004 before the JMFC., I Court, Bijapur. 3. It is the further case of the appellant that, he was discharged after taking initial treatment in District Hospital, Bijapur and he got himself sifted to private hospital of Dr. Ashok Naik [Ortho Surgeon], Bijapur where he undergone operation and he has taken prolonged treatment by spending huge amount towards Conveyance, nourishment, food, attendant charges and medical expenses. Taking all these factors into consideration, the claimant filed a claim petition under Section 166 of M.V. Act, claiming compensation of Rs.7,65,000/-against the respondents. The said claim petition filed by the appellant come up before the Tribunal. Taking all these factors into consideration, the claimant filed a claim petition under Section 166 of M.V. Act, claiming compensation of Rs.7,65,000/-against the respondents. The said claim petition filed by the appellant come up before the Tribunal. The Tribunal, inturn, after considering the oral and documentary evidence and other relevant materials available on file, after answering the points raised for consideration, on critical evaluation of oral and documentary evidence, has dismissed the claim petition filed by the appellant. Being aggrieved by the Judgment and Award passed by the Tribunal, the appellant herein felt necessitated to present this appeal. 4. The submission of Sri Babu H. Metagudda, learned Counsel appearing for the appellant is that, the Tribunal after considering positive evidence place on record, has held that, the appellant has proved issue No.1. This aspect of the matter has not been considered prospectively, but however proceeded to answer issue No.1 in negative, contrary to the fact recorded earlier. Further, he submitted that, the Tribunal was not justified in deciding the claim petition without appreciation of testimony of PWs.1 to 3 with reference to Exs.P1 to P11. Therefore, he submitted that, the order impugned is liable to be set aside and the claim petition filed by the appellant is liable to be allowed on account of the injuries sustained in the road traffic accident, by modifying the impugned Judgment and Award passed by the Tribunal. 5. As against this, learned Counsel appearing for the second respondent-insurance Company, interalia, contended and substantiated that, the impugned Judgment passed by the Tribunal is strictly in accordance with the relevant provisions of the Motor vehicles Act and Rules. After appreciation of oral and documentary evidence and after due consideration of the relevant material available on the file, the Tribunal has dismissed the claim petition holding that, the appellant has failed to establish, due to rash and negligent driving of the driver of tum-tum, the injuries has been sustained by the appellant in the road traffic accident. Therefore, he submitted that, in view of the well considered order passed by the Tribunal, interference by this Court is not called for and the appellant has not made out any good grounds to entertain the relief as prayed for in this appeal. 6. Therefore, he submitted that, in view of the well considered order passed by the Tribunal, interference by this Court is not called for and the appellant has not made out any good grounds to entertain the relief as prayed for in this appeal. 6. After careful consideration of the submissions of learned Counsel appearing for the appellant and the learned Counsel appearing for the second respondent-insurance company, after perusal of the impugned Judgment and Award passed by the Tribunal and other relevant materials available on the file, we do not find any error of law, much less serious material irregularity as such committed by the Tribunal nor we find any miscarriage of justice. It is significant to note that, the appellant, who was in a drunken condition when he was riding his motor cycle with two pillion riders was travelling from Hadagali to Hadagali Tanda in a zig-zag manner and on seeing the same, the driver of mini door vehicle stopped his vehicle by the side of the road and inspite of that, the appellant was unable to control is vehicle, came in a rash and negligent manner, dashed against the mini door vehicle. Therefore, the said incident occurred due to rash and negligent driving of motor cycle by its rider-appellant herein. Further, it is significant to note that, the accident was occurred on 21.6.2005 at about 20-00 hours. It is the case of the appellant that, he came to know only in the month of October 2004, immediately he approached the police and lodged a private complaint and matter was referred for investigation and report has been filed after investigation by the investigating officer against the appellant. 7. The Tribunal after appreciation of the oral and documentary evidence pleaded by PWs.1 to 3 and Exs.P1 to P11 and taking into consideration other aspects of the matter specifically, with reference to Ex.P4-Mahazar/scene of offence, which also goes to show that, the mini door vehicle was completely on its proper side i.e., on eastern side and two wheeler has come to the wrong side and dashed against the said vehicle. These relevant documents produced by the appellant himself, goes against the case made out by the appellant and he failed to establish that, the accident occurred due to rash and negligent driving of tum-tum. These relevant documents produced by the appellant himself, goes against the case made out by the appellant and he failed to establish that, the accident occurred due to rash and negligent driving of tum-tum. The Tribunal on critical evaluation of oral and documentary evidence on record, recorded a finding of fact, after affording reasonable opportunity to the appellant to establish that, the accident occurred due to the negligence on the part of driver of tum-tum. Therefore, we are of the considered opinion that, the impugned Judgment and Award passed by the Tribunal is well founded and the same has been decided after appreciation of oral and documentary evidence and recorded finding of fact, interference by this Court is not called for. 8. For the foregoing reasons as stated above, the appeal filed by the appellant is dismissed. Ordered accordingly.