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2019 DIGILAW 662 (KAR)

Vishal Francis Dsouza v. T. S. Shantharaju

2019-03-18

ALOK ARADHE

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JUDGMENT : Alok Aradhe, J. Sri. Sarat Chandra Bijai, learned counsel for the appellant. Smt. Neeraja Karanth, learned counsel for Lex Justicia, learned advocates for the respondent No.1. Sri. H.S. Lingaraj, learned counsel for respondent No.2. 2. In this appeal preferred under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act' for short), the appellant has assailed the validity of the award dated 22.09.2011 by which the petition filed by the appellant under Section 166 of the Act seeking compensation to the tune of Rs.17,903/- along with interest at the rate of 12% p.a. on account of the loss caused to the petitioner's vehicle, has been dismissed. 3. Facts giving rise to the filing of this appeal briefly stated are that the appellant after finishing his duty on 14.11.2008 was returning to his residence on his motor bike bearing registration No.KA 19 R-3181 along with his co-worker namely Pradeep Kumar. It is the case of the appellant that when he reached the main entrance gate of the Company, a tipper lorry which was being driven in a rash and negligent manner, without giving any signal to turn to the right side, hit the bike of the appellant from its back side. As a result of aforesaid accident, the appellant as well as the pillion rider fell down. It was further pleaded that due to the accident, the bike of the appellant was damaged and was kept in repairs and the appellant incurred a sum of Rs.17,903/-. The appellant made a demand to indemnify the damages. Thereupon, the respondent No.3 offered a sum of Rs.6,600/- which the appellant declined to take. The appellant therefore filed petition under Section 166 of the Act seeking compensation as stated supra. 4. The respondent No.1 was placed exparte before the Tribunal. The respondents Nos.2 and 3 filed the written statement in which the averments made in the claim petition were denied and it was pleaded that the driver of the tipper lorry was not holding any valid and effective driving license on the date of accident and the accident took place due to negligence of the appellant. Therefore, the appellant is not entitled to claim any damages. 5. Therefore, the appellant is not entitled to claim any damages. 5. The Tribunal after framing issues, recorded the evidence of the parties and by impugned award dated 22.09.2011, dismissed the petition inter alia on the ground that the contents of the examination-in-chief of the appellant are at variance with the pleading made in the petition with regard to the manner in which the accident took place. It was further held that accident took place due to rash and negligent driving of the motor bike by the appellant and the road in question cannot be said to be a public road. 6. Learned counsel for the appellant submitted that the finding recorded by the Tribunal that the accident took place due to rash and negligent driving of the motor bike by the appellant is perverse. It is further submitted that the tipper lorry which was ahead of the motor bike of the appellant took a turn without any signal as a result of which the accident took place. It is also submitted that the Tribunal ought to have appreciated that even though the place where the accident took place was not the public road but public had right to access the same, therefore, the same has to be treated as a public place / road. In support of aforesaid submission, reliance has been placed on the Division Bench decision of the High Court of Madhya Pradesh in the case of SMT.HIRA BAI AND ORS. Vs. PRATAP SINGH AND ANOTHER, (2007) AIR M.P. 134. 7. On the other hand, learned counsel for the respondents has invited the attention of this Court to the Motor Vehicle Inspector's report and has submitted that the rear side of the vehicle of the appellant got damaged and under Regulation 23 of the Motor Vehicles Rules of the Road Regulations, 1989, the appellant was required to maintain a sufficient distance and the accident has been caused on account of negligence of the appellant. It is also urged that the place where the accident took place was not a public street. In support of his submissions, the learned counsel for the respondents has placed reliance on the decision of the Hon'ble Supreme Court in the case of NISHAN SINGH AND OTHERS Vs. ORIENTAL INSURANCE COMPANY LTD. THROUGH REGIONAL MANAGER AND OTHERS, (2018) AIR SC 2118. 8. In support of his submissions, the learned counsel for the respondents has placed reliance on the decision of the Hon'ble Supreme Court in the case of NISHAN SINGH AND OTHERS Vs. ORIENTAL INSURANCE COMPANY LTD. THROUGH REGIONAL MANAGER AND OTHERS, (2018) AIR SC 2118. 8. I have considered the submissions made by learned counsel for the parties and have perused the record. Paragraph 22 of the petition under Section 166 of the Act reads as under: "22. That the petitioner is working at B.A.S.F. in production Department. On 14.11.2008 when the petitioner after finishing his duty work, returning to his residence by riding his motor bike bearing Regn. No.KA 19 R.3181 along with his co worker Pradeep Kumar. When they reached the main entrance gate of the company, a Tippar Lorry came in a rash and negligent manner in a high speed and without giving any signal took turn to the right side and hit against the bike of the petitioner which was proceeding in the back side of the tipper. As a result the petitioner fell down to the road along with the pillion rider. The people who gathered on the spot shifted the petitioner and the pillion rider to the nearby hospital." 9. The relevant extract of the examination-in-chief of the appellant reads as under: "I further say that on 14.11.2008 after finishing my duty when I was returning to my house in my bike bearing Regn. No.AK 19 R 3181 along with my co-worker Mr.Pradeep Kumar, a Tipper lorry bearing Regn. No.KA 19 B 5131 came from the other side in a rash negligent manner and without giving me any signal took turn to the right side and hit against my bike." 10. Thus, if the averments made in paragraph 22 of the petition under Section 166 of the Act as well as the affidavit filed by the appellant is read in conjunction, it is evident that there is no discrepancy in the manner in which the accident has taken place, in the pleading as well as the statement made by the appellant. Therefore, the finding recorded by the Tribunal that the version of the appellant is different than the pleadings, is perverse and suffers from the vice of non-application of mind. Therefore, the finding recorded by the Tribunal that the version of the appellant is different than the pleadings, is perverse and suffers from the vice of non-application of mind. From Exhibit P-5, it is evident that the vehicle of the appellant got damaged on the rear side and therefore, the motor vehicle inspector's report is of no assistance to the respondents. From the statement of the complainant also, it is evident that the driver of the lorry had taken a sudden right turn as a result of which the accident took place. Therefore, it can safely be inferred in the state of evidence on record that the accident took place as the tipper lorry took a sudden right turn, as a result of which the vehicle of the appellant got damaged. The Insurance Company itself had offered a sum of Rs.6,600/- by way of compensation to the appellant which is evident from Exhibit P5. The place where the accident took place was open to public. Therefore, in view of the law laid down by the Division Bench of High Court of Madhya Pradesh, the same had to be treated as public road. No evidence in rebuttal has been led by the respondents to refute the claim of the appellant that he has incurred a sum of Rs.17,903/- towards repair of his motor bike. 11. In view of proceeding analysis, the impugned order dated 22.09.2011 passed by the Tribunal is hereby quashed and the claim of the appellant for compensation to the tune of Rs.17,903/- is decreed along with interest at the rate of 6% per annum from the date of filing of petition till the payment is made to him. Accordingly, the appeal is disposed of.