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2015 DIGILAW 1026 (KAR)

JAYA SURESH WAGHELA v. SURESH BALA WAGHELA

2015-09-01

B.SREENIVAS GOWDA

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JUDGMENT : B. SREENIVAS GOWDA, J. 1. This appeal is by the claimants challenging the judgment and award passed by the Tribunal in dismissing their claim petition. Appellant had taken out notice to respondent No. 1 thrice. On the first occasion it was returned with a postal shara (Not known), on the second occasion it was returned with some postal shara which not clear and on the third occasion it was returned with a postal shara (Addressee left). 2. Today also learned counsel for the appellants seeks time to take steps to issue notice to respondent No. 1. 3. Before considering the request made by the learned counsel for the appellants for grant of time to take steps to issue notice to respondent No. 1, I have heard the learned counsel for the appellants on merit and have perused the judgment and award passed by the Tribunal to find out whether there is merit in the case and any useful purpose will be served in granting time and found that there is no merit in the case and no useful purpose will be served in granting time. 4. That on 18.12.2014 deceased Pramod while riding a motorcycle bearing registration No. MH-13-A-1433 hereinafter referred to as motorcycle at Pandrapur city, he met with an accident and died. His mother, wife and two minor daughters filed a claim petition in MVC No. 784/2007 before MACT Bijapur seeking compensation under section 163A of the Motor Vehicles Act (hereafter referred to as M.V. Act for short) from the owner and the insurer of the motorcycle. 5. Respondents who are the owner and insurer of the motorcycle after entering appearance before the Tribunal have filed their separate statement of objections. Respondent No. 1 owner of the vehicle in his statement of objection has contended that claim petition filed by the claimants is not maintainable and he has denied other averments made in the claim petition. He has contended that he has insured the vehicle with respondent No. 2 therefore he is not liable to pay compensation to the claimants and it is respondent No. 2 who is liable to pay compensation. 6. He has contended that he has insured the vehicle with respondent No. 2 therefore he is not liable to pay compensation to the claimants and it is respondent No. 2 who is liable to pay compensation. 6. Respondent No. 2 insurer of motorcycle in their statement of objections have contended that claim petition is not maintainable and they denied the motorcycle was insured with them as on 18.12.2004 and they contended that petitioners and respondent No. 1 are put strict proof of their case. They denied other averments made in the claim petition. They contended deceased Pramod himself is responsible for the accident and claimants are not entitled for compensation from the insurer and they prayed for dismissal of the claim petition. 7. The Tribunal based on the rival contentions of the parties has framed the following issues: 1. Whether petitioners (claimants) prove that, on 18.12.04 at about 12:30 hours when Pramod was driving the motorcycle MH-13/AA-1433 at Pandarpur city at that time he caused the accident, due to which he sustained injuries and succumbed to injuries? 2. Whether petitioners are entitled for compensation? If so, to what is the quantum and from whom? 3. What order? 8. Appellants-claimants in support of their case have examined the 1st claimant mother of deceased as PW. 1 and have produced copy of the complaint, the spot panchanama, the charge-sheet, the affidavit of the translator and the post mortem report, which were marked as Exs. P1 to P5 respectively. 9. The 1st claimant examined as PW. 1 in her evidence has stated that deceased Pramod is her son. On 18.12.2004 at about 12:30 p.m. he was riding the motorcycle bearing Reg. No. MH-13-AA-1433 at Pandharapura city at that time he met with an accident and died on the spot. The Tribunal considering the averments made in the claim petition oral evidence of PW. 1 and the complaint, spot panchanama, charge-sheet and post mortem report marked as Exs. P1 to P4 respectively has held that deceased while riding the motorcycle MH-13-AA-1433 accident has occurred and Pramod died on the spot and answered issue No. 1 in the affirmative. 10. PW. The Tribunal considering the averments made in the claim petition oral evidence of PW. 1 and the complaint, spot panchanama, charge-sheet and post mortem report marked as Exs. P1 to P4 respectively has held that deceased while riding the motorcycle MH-13-AA-1433 accident has occurred and Pramod died on the spot and answered issue No. 1 in the affirmative. 10. PW. 2 Vinod Mehada who is claimant No. 1 in the connected claim petition filed in MVC No. 952/2007 seeking compensation for the death of pillion rider has stated in his evidence that on 18.12.2004 at about 12:30 p.m. Chagan was pillion rider on the motorcycle and rider was Pramod. When Pramod was riding the motorcycle at Pandarpur city it met with an accident, both rider and pillion rider died. The Tribunal considering the admission made by the PWs. 1 and 2 and the contents of the complaint, spot panchanama and charge-sheet marked as Exs. P1, P2 and P3 respectively has rightly held while Pramod was riding the motorcycle at Pandharapura city due to his own negligence he fell down from the motorcycle and died, on account of negligent driving by himself and he was not a third party to the accident and consequently does not come within the purview of section 147 of M.V. Act and consequently his risk is not covered under the policy. 11. Then the next question would be whether deceased Pramod had travelled in the motorcycle either as owner or rider of the motorcycle and his risk covered under personal accident claim. Admittedly respondent No. 1 - Suresh Waghela is the owner of the motorcycle and admittedly deceased Pramod did not ride the motorcycle as rider under the owner of the vehicle. Deceased having himself being the tortfeasor his risk is not covered either under third party liability or under personal accident coverage. Considering this material aspect of matter the Tribunal was justified in dismissing the claim petition by answering issue No. 2 in the negative and holding claimants are not entitled to claim compensation. I have carefully gone through the finding of the Tribunal on issue No. 2 and I do not find any illegality or infirmity warranting my interference. Hence, the appeal is to be dismissed as devoid of merit. Accordingly the appeal is dismissed as devoid of merit. I have carefully gone through the finding of the Tribunal on issue No. 2 and I do not find any illegality or infirmity warranting my interference. Hence, the appeal is to be dismissed as devoid of merit. Accordingly the appeal is dismissed as devoid of merit. In view of dismissal of appeal on merit all pending IAs do not survive for consideration accordingly they are rejected. No order as to costs.