1 in the High Court of Karnataka at Bangalore

1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 5TH DAY OF SEPTEMBER, 2014 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR M.F.A.NO.5012/2009(MV) BETWEEN: SRI.H.SANTHOSH KUMAR SHETTY S/O B. SANJEEVA SHETTY, AGED ABOUT 48 YEARS R/O HOSAMANE, HEGGUNJE VILLAGE, MANDARTHI POST, UDUPI TALUK ..APPELLANT (BY SRI.PAVANA CHANDRA SHETTY H., ADVOCATE) AND: 1. GOPAL K.SHETTY S/O KANTHANNA SHETTY R/O LATHA NIVAS, THANDEKERE, POST PEJAVARA MANGALORE DISTRICT 2.LINGAPPA S/O GANAPAYYA GABBALADAKA SINCE DEAD BY LRS Page Nos.1 & 2 are retyped and replaced V ide Court Order dtd. 10.10.2014 2 2a. RAMESH S/O LINGAPPA AGED ABOUT 30 YEARS, POLICE, R/A MYSORE. 2b. DANANJAYA S/O LINGAPPA AGED ABOUT 28 YEARS, R/A NEAR CHECK POST, SAMPAJE, MADIKERI TALUK, KODAGU DISTRICT. 2c.PREMA D/O LINGAPPA R/A BAGAMANDALA, KODAGU DISTRICT. 2d.CHANDRASHEKARA S/O LINGAPPA R/A KALLUGUNDI, BALAMBI- DANDEKAJE, SAMPAJE, MADIKERI TALUK, KODAGU DISTRICT. 3.THE ORIENTAL INSURANCE CO. LTD., DIVISIONAL OFFICE, VISHNU PRAKASH, III FLOOR, COURT ROAD, UDUPI TALUK ..RESPONDENTS (BY SRI.P.KARUNAKAR, ADVOCATE FOR R1, SRI.A.N.KRISHNA SWAMY, ADVOCATE FOR R-3, RESPONDENTS 2(a), 2(c) & 2(d) ARE SERVED, NOTICE TO R- 2(a) DISPENSED WITH VIDE ORDER DATED 05.09.2014) 3 THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT AGAINST THE JUDGMENT AND AWARD DATED:03.01.2009 PASSED IN MVC NO.268/2004 ON THE FILE OF THE CIVIL JUDGE (SR.DN) & MACT, KUNDAPURA, DISMISSING THE CLAIM PETITION FOR COMPENSATION. THIS MFA COMING ON FOR ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING: JUDGMENT Heard Sri.Pavana Chandra Shetty, learned counsel appearing for appellant. Perused the Judgment and award in question. 2. It is the contention of Sri.Pavana Chandra Shetty, learned counsel appearing for appellant that tribunal committed a serious error in dismissing the claim petition without appreciating the facts in proper perspective and as such Judgment and award passed by tribunal dismissing the claim petition is liable to be set aside. He would also elaborate his submission by contending that finding recorded by the tribunal on issue No.4 and concluded that on account of negligence of the driver of tanker (claimant) accident had 4 occurred and as such compensation is not payable to him is an erroneous finding and he prays for setting aside the same. 3. Having heard the learned counsel appearing for appellant and on perusal of the award in question it would indicate that claimant sought for compensation on account of injuries said to have been sustained by him in a road traffic accident that occurred on 08.05.2002 while travelling in the tanker bearing No.KA-20-5836. Tribunal while answering issue No.4 and additional issue No.1 has found that driver of lorry namely Sri.Lingappa had lodged a complaint and as per the complaint lodged before jurisdictional police a case against driver of tanker bearing No.KA-20-5836 for offence punishable under section 279 and 337 of I.P.C. came to be registered. Spot Mahazar Exhibit P-2 would indicate that both vehicles were damaged. Charge sheet has been filed against driver of tanker. It has also been found by the tribunal that accident in question has not occurred in the middle of the road as contended and has concluded that the 5 driver of tanker who came from right side i.e., from eastern side of the road dashed against the said lorry and as such tribunal has come to a conclusion that driver of the tanker, fifth respondent in MVC 267/2004 drove the said vehicle in a rash and negligent manner and came from wrong side i.e., western side and dashed against the lorry which is based on material evidence available on record. As such it answered issue No.1 in affirmative in MVC 267/2004. Hence, tribunal has dismissed the claim petition filed by the owner of tanker since accident in question occurred on account of negligence of driver of tanker. Said finding is based on material evidence available on record. As such I do not find any merit in this appeal. Hence, I proceed to pass following: ORDER 1. Appeal is hereby dismissed. 2. Judgment and award dated 03.01.2009 passed in MVC 268/2004 by MACT Kundapura is hereby affirmed. 3. No costs. 6 4. All pending applications stands dismissed. Sd/- JUDGE SBN .

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