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Karnataka High Court

Smt. Vasuda S Beedu W/O Sudhir Beedu vs Sri Prabhakar K G S/O Giriyappa on 30 January, 2018

Author: H.B.Prabhakara Sastry

Bench: H.B.Prabhakara Sastry

                                    MFA NO.1977/2010
                          1


     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 30TH DAY OF JANUARY, 2018

                        BEFORE

     THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY

               MFA NO.1977/2010 (MV)

BETWEEN:

SMT. VASUDA S BEEDU
AGED ABOUT 36 YEARS
W/O SUDHIR BEEDU
R/A SUMUKHA DHOMAVATHI ROAD,
BANNANJE, UDUPI
UDUPI TALUK AND DISTRICT
                                        ... APPELLANT
(BY SRI. H JAYAKARA SHETTY, ADV.)

AND

1.     SRI PRABHAKAR K G
       AGED ABOUT 44 YEARS
       S/O GIRIYAPPA
       R/O SULOGIRI NIVAS
       NEAR PANCHALINGESHWARA TEMPLE
       URVA, MANGALORE TALUK, DK DISTRICT

2.   THE UNITED INDIA INSURANCE CO LTD
     VARANASSI TOWER
     STREET BUNDER,MANGALORE, DK DISTRICT
                                    ... RESPONDENTS
(BY SRI. A M VENKATESH, ADV. FOR R2
R1- SERVED
                                      MFA NO.1977/2010
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     THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED:21.3.2009 PASSED
IN MVC NO.1030/2006 ON THE FILE OF PRINCIPAL CIVIL
JUDGE   (SR.DN.)    &  ADDITIONAL     MACT,  UDUPI,
DISMISSING THE CLAIM PETITION FOR COMPENSATION.

     THIS APPEAL COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:

                     JUDGMENT

The present appeal is filed against the judgment and award dated 21.3.2009 passed by the Principal Civil Judge (Sr.Dn.) & Addl. MACT, Udupi in MVC No.1030/2006 (for brevity 'the Tribunal') wherein the Tribunal had dismissed the claim petition filed by the present appellant under Section 166 of MV Act seeking compensation for the alleged damage said to have been caused to her motor car.

2. Though this matter was listed for admission, with consent of both the parties, the matter was taken up for final disposal.

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3. Summary of the case is that the claimant is the owner of Maruthi Zen car bearing Registration No.KA-20-M-3474. On 14.4.2006 at about 7.15 p.m., when the driver of the said car was driving the same from P.V.S Circle to Hampanakatte, near Navabharath Circle, an autorickshaw bearing Registration No.KA- 19-A-1231 came from opposite direction in a rash and negligent manner and dashed against the said Maruthi Zen car. Due to the said accident, her car got damaged. It is her further case that she has spent a sum of Rs.1,20,000/- towards repair of the said car alleging that the accident in question has occurred due to rash and negligent driving of the autorickshaw by its driver. The claimant had preferred the claim petition for damages caused to her car against the owner and insurer of the autorickshaw. The Tribunal by its judgment dated 21.3.2009 dismissed the said MFA NO.1977/2010 4 claim petition. It is against the said judgment, the claimant has preferred this appeal.

4. The learned counsel for the appellant in his arguments submitted that even though the appellant herein, the owner of the car and PW-2, the driver of the car have led their evidence regarding the manner of accident, the Tribunal has not appreciated the same, but has been carried away by the fact that the police have filed the charge sheet against the driver of the car and as such, the accident is caused at the fault of the driver of the car and not by the driver of the autorickshaw. He further submitted that PCR was filed by the appellant herein in that regard.

5. The learned counsel for respondent No.2 in his arguments vehemently submitted that thorough investigation conducted by the police has revealed that it was the driver of the car, who was in fault in MFA NO.1977/2010 5 causing the accident and not the driver of the autorickshaw and as such the charge sheet was filed against the driver of the car. He further submitted that the alleged PCR said to have been filed by the police was after two months from the date of occurrence of accident and it was purely after thought. According to the learned counsel, even the said PCR has come to an end and Police have filed 'B' report after investigation.

6. It is not in dispute that motor vehicle accident between the car bearing registration No.KA- 20-M-3474 and autorickshaw bearing registration No.KA-19-A-1231 took place near Navabharath circle, Mangalore on 14.4.2006 at about 7.15 p.m. The only question in dispute is at whose fault the accident has occurred. According to the appellant, the accident has occurred due to rash and negligent driving of the MFA NO.1977/2010 6 autorickshaw by its driver. In that regard, the appellant claiming to be the owner of the said car has got herself examined as PW-1 and also got examined one Sandeep Kumar, the driver of the said car at the time of occurrence of accident as PW-2. Both these witnesses in their examination-in-chief have stated that the accident has occurred at the fault of the driver of the autorickshaw. The denial suggestions made to them in their cross-examination were not admitted as true by them.

7. Admittedly, PW-1 is not the eyewitness to the alleged incident. Though PW-2 claims to be the driver driving the car, but in his cross-examination, it has been elicited in respect of accident in question that the police case has been registered and police have filed charge sheet against him for the offences punishable under Sections 279 and 337 of IPC. MFA NO.1977/2010 7 Though the said criminal case is said to have been ended in acquittal, but the fact remains that the investigation conducted by the police have shown the faulty person as PW-2, the driver of the car but not the driver of the autorickshaw. Furthermore, the private complaint said to have been filed by the appellant herein in respect of the very same accident against the driver of the autorickshaw is also said to have been ended in police filing 'B' report in the matter. Thus, the police investigation as well as the private complaint lodged by the appellant herein have not resulted in bringing any favour to the appellant. On the contrary, both of them have gone against the owner of the Maruthi car. Even independent of the criminal proceeding also, appreciation of the evidences of PW-1 and 2 and RW-1, who is the driver of the autorickshaw goes to show that the appellant was not able to establish that the accident in question has MFA NO.1977/2010 8 occurred at the fault of the driver of the autorickshaw only. Appreciating the said point in proper perspective, the Tribunal has rightly come to the conclusion that the claimant has failed to prove that the accident in question has occurred due to rash and negligent driving of the autorickshaw by its driver.

8. Though the evidences of PWs-3 and 4, who were the mechanics said to have been attended the motor car shows that the motor car of the appellant had sustained some damages, but the same was repaired at the instance of the appellant. The question of payment of any damages incurred by the appellant in getting her car repaired would arise provided she establishes that the accident in question was solely due to rash and negligent driving of the autorickshaw by its driver.

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9. As already discussed above, the appellant could not establish the said issue that the driver of the autorickshaw was rash and negligent in driving of the autorickshaw bearing registration No.KA-19-A-1231 at the time of accident. Considering these aspects, the Tribunal was right in dismissing the claim petition.

10. Hence, I do not find any perversity or error in the finding of the Tribunal. I do not find any merit in admitting this appeal. Accordingly, I proceed to pass the following order:

ORDER The appeal stands dismissed at the stage of admission.

Sd/-

JUDGE DM