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Judgment
This appeal is directed against the judgment and award dated 15.4.2006 in MVC.No.17/2001 passed by the Civil Judge (Sr.Dn.) & Addl. M.A.C.T. at Holalkere.
The appellants are the LRs., of deceased
Gangadharappa. According to the appellants, on 18.12.2000,
the deceased Gangadharappa was riding his motorcycle bearing registration No.KA.16/2658 from Holalkere towards Hosadurga. Near Gunderi cross on Holalkere-Hosadurga road at about 7.30 p.m., the driver of a tractor-trailer bearing registration No.KA- 16/3116-3117 came from the opposite direction in a rash and negligent manner and dashed against the motorcycle causing grievous injuries to the deceased as well as to the pillion rider by name N.Gangadharappa(PW-2). Both the injured were shifted to Holalkere Government Hospital from there, the deceased was shifted to Bapuji Hospital and C.G. Hospital at Davanagere and the deceased succumbed to the injuries on 19.12.2000.
The appellants moved an application under section 166 of M.V. Act seeking compensation of Rs.9,40,000/-. Before the Motor Accident Claims Tribunal ("MACT" for short) the first appellant examined herself as PW.1; the injured/pillion rider Sri.Gangadharappa was examined as PW.2 and 16 documents marked as Ex.P1 to Ex.P16 were produced in support of the claim petition. On behalf of the second respondent-Insurance Company, Sri.Shivashankarappa.K., the Senior Assistant, Divisional Office, National Insurance Company Limited, Davanagere was examined as RW.1 and six documents came to be marked on behalf of the respondents. On consideration of the oral and documentary evidence, the learned MACT recorded a finding that the accident in question was caused on account of the skidding of the motorcycle driven by the deceased in a rash and negligent manner and further the learned MACT held that the alleged tractor-trailer bearing registration No.KA-16/3116- 3117 was not at all involved in the alleged accident. The appellants are aggrieved by these findings.
We have heard the learned counsel for the appellants and have perused the impugned judgment and the records of the learned MACT.
Though the learned counsel for the appellants has tried to impress upon this Court that the finding of fact recorded by the learned MACT is contrary to the oral and documentary evidence produced by the parties, but on going through the impugned judgment and the material on record, we do not find any error or infirmity in the factual finding recorded by the learned MACT. It is seen from the records that soon after the accident, FIR came to be registered in Holalkere Police Station based on the information/statement given by the injured (PW.2). Undoubtedly, PW.2 was not only the eye-witness to the incident but also had sustained injuries during the occurrence. In his statement Ex-P1, he had unequivocally stated that at the time of the accident, the deceased was driving the two-wheeler and in the process of giving way to the oncoming vehicle, he lost control over the vehicle and both of them fell on the road and sustained injuries. Ex.P2 -spot mahazar refers to the place of accident where the motorcycle driven by the deceased was found. There is no mention of the tractor-trailer in Ex-P2. The Motor Vehicles Accident Report prepared on 23.12.2000 namely, Ex.P3 also refers to the damages sustained to the motorcycle. In none of these documents there is any reference to the involvement of the tractor-trailer owned by respondent No.1.
It is only on 27.12.2000 (Ex.P5), PW-2 appears to have given a further statement before the police, based on which the tractor-trailer belonging to the respondent No.1 appears to have been inspected on 4.4.2001. What is pertinent to be noted is that even though the accident is alleged to have taken place on account of the rash and negligent driving of the tractor-trailer owned by respondent No.1, the appellants have not produced any document to show that any criminal case was registered against the owner or the driver of the said tractor-trailer bearing registration No.KA-16/3116-3117. The driver of the said vehicle is also not made a party to the claim petition. Even the M.V. report Ex.P4 dated 4.4.2001 relating to the aforesaid tractor- trailer does not disclose any traces of damage to the vehicle. More importantly, the MACT has taken into account the glaring inconsistencies in the version of PW.2 i.e., the further statement Ex.P5 as well as the deposition given by him before the court. As already stated above, in his further statement he has stated that the tractor-trailer came from the opposite direction and hit against the motorcycle driven by the deceased, but in his evidence before the court, he has stated that some tractor- trailer came from the opposite side in a great speed and overtook the motorcycle driven by the deceased and the rear portion of the trailer hit against the motorcycle driven by the deceased. The respondents have produced in evidence Ex.R1 namely the evidence given by PW.2 before the Criminal Court in C.C.No.289/2001 wherein PW.2 is seen to have stated that at about 7.30 p.m., when they were near Gunderi cross on the public road of Holalkere-Hosadurga, a tractor came from the opposite direction and a van came from behind and at that time, the deceased "attempted to give way to the vehicles and went to the left side to a pit".
In the wake of the above irreconcilable contradictions and in the light of the documentary evidence discussed above, the findings recorded by the learned MACT cannot be faulted with. Needless to say that in order to fasten the liability on the respondents, the appellants/claimants were required to plead and prove the actionable negligence on the part of the driver of the tractor-trailer so as to make the first respondent vicariously liable for the acts of the driver. Such evidence is totally lacking in this case. The materials produced in evidence do not even remotely suggest the involvement of the tractor-trailer belonging to the first respondent. The MACT was therefore justified in negativing the claim of the appellants and even on reassessing the entire evidence on record, we do not find any justifiable reason to differ with the findings recorded by the learned MACT. Hence, we do not find any merit in the appeal. As a result, the appeal is dismissed at the admission stage itself.