Inconsistent and contradictory evidence cannot establish liability in a claim petition under Section 166 of MV Act, 1988.

JUDGMENT/ORDER

Rajesh Rai K, J. - This appeal is directed against the judgment and order dated 02.07.2015 passed in MVC No.1950/2013 by III Addl. Senior Civil Judge and Member, MACT, Belagavi (for short' Tribunal').

2. Brief facts which are relevant for the purpose of disposal of this appeal are that on 29.01.2013, the deceased (Hasim Ibrahim Tade) was going by walk on Darbar Galli Road, on the left side of the road at about 12.20 a.m., at that time the driver of the car bearing No.KA-22/N-8959 coming from CBS circle towards Shaniwarkoot in a rash and negligent manner, dashed the deceased and after the accident, the driver of the Car and PWs.2 and 3 shifted the injured in the said car to District Hospital for treatment. Inspite of treatment, he died. Hence, a claim petition was filed by the appellants i.e. family members of the deceased Hasim Ibrahim Tade under Section 166 of M.V. Act, 1988, before the Tribunal for award of compensation.

3. Before the Tribunal, in order to prove their case, the appellants/claimants got examined 3 witnesses i.e. PWs.1 to 3 and got marked 15 documents as per EX.P.1 to P15A. On the other hand, respondent No.2 i.e. Insurance Company got examined two witnesses as RW-1 and RW-2 and also got marked two documents as per EX.R1 and R2.

4. After hearing the learned counsels on both the sides and on assessment of oral as well as documentary evidence, the Tribunal passed a judgment, dismissing the claim petition filed by the petitioners under Section 166 of MV Act, 1988. Hence, claimants have challenged the said impugned judgment in this appeal.

5. We have heard the learned counsel for both the parties.

6. The learned counsel for appellants/claimants vehemently contended that the judgment and award passed by the Tribunal is erroneous, illegal and contrary to the facts and evidence on record. As such, the same suffers from perversity and illegality. He would further contend that the Tribunal failed to consider the material and evidence on record. Among three witnesses examined before Tribunal i.e. PWs.1 to PW.3, PW.1 is none other than the wife of the deceased, clearly deposed about the manner in which the accident was caused due to the rash and negligent driving of the car bearing Regn.No.KA-22/N-8959 by it's driver. Further PW.2 who is the brother of the deceased has also clearly deposed about the rash and negligent driving of the driver of the offending vehicle bearing No.KA-22/N-8959. He clearly deposed that the said accident was witnessed by the PW.3 who in turn called him and informed about the accident, thereby he immediately rushed to the spot. At that time, the Police officials were also present and all of them including the driver of the car took the injured to the District Hospital, Belagavi for treatment. However, doctor declared him as brought dead.

7. Further, the learned counsel relies on the evidence of PW.3 who is none other than eye witness to the alleged accident. According to the evidence of PW.3, on 29.01.2013, in the mid-night, he witnessed the accident caused to the deceased by car bearing No.KA-22/N-8959 proceeding towards Shanivarkoot and the driver of the said car was driving the car in a rash and negligent manner. As such, the counsel for the appellants submits that there is no reason to disbelieve the evidence of these three witnesses since, they clearly deposed about the manner in which the accident was caused. Accordingly to him, Tribunal totally failed to consider the evidence of these three witnesses and dismissed the claim petition filed by the appellants / claimants. Learned counsel further contends that though the jurisdictional Police filed a C-report (Un-traceable case), later, PW.2 filed a protest petition and after hearing the said protest petition and also by considering the evidence and material available on record, the trial Court rejected the C-report and took cognizance of the case for the offences punishable under Sections 279 and 304A of IPC and Section 134(a)(b) r/w 1