AND

AWARD

DATED

01.09.2012

PASSED

IN

MVC.NO.1370/2010 ON THE FILE OF THE I ADDITIONAL SENIOR

CIVIL JUDGE AND CJM & MACT-VI, SHIMOGA, DISMISSING THE

CLAIM PETITION FOR COMPENSATION.

THIS APPEAL COMING ON HEARING THIS DAY, THE COURT

DELIVERTED THE FOLLOWING:

JUDGMENT

Challenging Judgment and Award dated 01.09.2012

passed by I Additional Senior Civil Judge and C.J.M., and

M.A.C.T-VI, at Shivamogga in MVC.No.1370/2010, this

appeal is filed.

2.

Brief facts as stated are that on 24.02.2009,

claimant Chandru @ Chandrashekar was going towards

Kommanal on motorcycle bearing no.KA-14/V-1830. On the

way his bike ran out of fuel. When he was standing by side of

road, rider of another motorcycle bearing no.KA-14/J-8248

was riding it in rash and negligent manner and dashed

against claimant’s bike. Due to same, claimant sustained

grievous injuries and was taken to Mc.Gann Hospital,

Shivamogga where he took treatment till 27.02.2009.

Thereafter, he was shifted to K.M.C. Manipal. Despite best

3

medical attention, he was not cured fully. He sustained

permanent physical disability and consequent loss of earning

capacity. Claiming compensation for same, he filed claim

petition under Section 166 of Motor Vehicles Act, 1988 (for

short ‘M.V. Act’) against rider, owner and insurer of offending

motorcycle.

Upon

service

of

notice,

respondents

filed

objections. Respondent no.1 – rider stated that claim petition

was bad for non-joinder of owner of motorcycle no.KA-14/V-

1830 and its insurer. He stated that he had purchased

motorcycle no.KA-14/J-8248 from respondent no.2, in

November 2006. On date of accident, he was riding it on left

side of road observing all traffic rules. At that time claimant

was riding his bike in zig zag manner on wrong side and

dashed to his bike. Since he applied brakes, he sustained

minor injuries. When he went to assist claimant, he found

him fully intoxicated. He denied that Ravikumar-complainant

was present at the spot. Thereafter, both were admitted to

Mc.Gann hospital. There he found out that RC owner of

claimant’s bike was a DAR Police. Since he had sustained

minor injuries, he received treatment in OPD and discharged.

4

But claimant had escaped from hospital. Owner of claimant’s

motorcycle used influence to get criminal case registered

against him. To avoid attending Court repeatedly, he pleaded

guilty and paid fine. Only after receipt of notice of claim

petition, he realized illegalities committed by them. However,

spot sketch clearly showed that it was claimant himself who

came on wrong side and caused accident. Therefore,

accident was solely due to rash and negligent riding of

claimant and neither himself nor his insurer were liable to

pay compensation.

4.

Respondent

no.2

stated

that

he

had

sold

motorcycle no.KA-14/J-8248 to respondent no.1, who was in

possession of it on date of accident and hence he was not

liable to pay compensation.

5.

Respondent no.3 denied claim petition averments.

Occurrence of accident, claimant sustaining loss of earning

capacity due to injuries suffered therein, claimant age,

occupation, income and loss earning capacity were disputed.

Even liability under insurance policy was contended to be

subject to terms and conditions.

5

6.

Based on pleadings following issues are framed:

1.

Whether the petitioner proves that he

sustained injuries in an accident that

occurred due to rash and negligent

driving of motor bike CD 100 bearing

No.KA-14/J-8248 by the 1^st respondent

on 24.02.2000 at about 8.00 p.m., near

Trimurthy

Nagar,

Sowlanga

road,

Shivamogga?

2.

Whether the respondents 1 and 3 prove

that the petition is bad for non-joinder of

necessary parties?

3.

Whether the petitioner is entitled for

compensation as prayed? If yes, at what

rate and from who?

4.

What order of award?

7.

Thereafter, claimant examined himself as PW.1

and got marked Exs.P1 to P61. Respondent no.1 examined

himself as RW.1 and one witness as RW.2 and got marked

Exs.R1 and R2.

8.

On consideration, tribunal answered issues