- 1 - NC: 2025:KHC-D:4142-DB MFA No. 103229 of 2016 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 3RD DAY OF MARCH, 2025 PRESENT THE HON'BLE MR. JUSTICE S G PANDIT AND THE HON'BLE MR. JUSTICE C.M. POONACHA MISCELLANEOUS FIRST APPEAL NO.103229 OF 2016 (MV-D) BETWEEN: 1. NAZEER AHMED ABDUL RAHEEM SHAIKH, AGE: 31 YEARS, OCC: WELDER, 2. MUZAMIL S/O. NAZEER AHMED, AGE: 10 YEARS, OCC: STUDENT, 3. SANA D/O. NAZEER AHMED, AGE: 7 YEARS, OCC: STUDENT, ALL ARE R/O: H.NO.99/3, MALBHATT, PILLER, PANJIM GOA. APPELLANTS NO.2 AND 3 WERE MINORS, REPRESENTED BY GUARDIAN FATHER THE APPELLANT NO.1. …APPELLANTS (BY SRI MOH'D RAFIQUE, ADVOCATE) AND: 1. SUNIL S/O. MABLU NAIK, AGE: MAJOR, R/O: DIVALLI, TQ: KUMTA. 2. RAJU FRANCIS RODRIGUES, AGE: 29 YEARS, OCC: DRIVER, R/O: DIVALLI, TQ: KUMTA-581323. 3. THE BRANCH MANAGER, UNITED INDIA ASSURANCE COMPANY LTD., AT: BENNE COMPLEX, GIBB HIGH SCHOOL ROAD, KUMTA (U.K.)-581343. …RESPONDENTS (BY SRI N.M. PATIL, ADV., FOR SRI J.S. SHETTTY, ADVOCATE FOR R1 SMT. PREETI SHASHANK, ADVOCATE FOR R3) (V/O DATED 27.01.2022 APPEAL AGAINST R2 IS ABATED) ASHPAK KASHIMSA MALAGALADINNI Digitally signed by ASHPAK KASHIMSA MALAGALADINNI Location: HIGH COURT OF KARNATAKA DHARWAD BENCH - 2 - NC: 2025:KHC-D:4142-DB MFA No. 103229 of 2016 THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLE ACT, PRAYING TO MODIFY THE JUDGMENT AND AWARD PASSED BY THE MEMBER, ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, KUMTA ON DATED 21.07.2016 IN MVC NO.100/2013 BY ALLOWING THE PETITION AND PASS SUCH OTHER ORDER OR ORDERS AS THE COURT MIGHT DEEM FIT AND PROPERTY IN THE INTEREST OF JUSTICE AND EQUITY. THIS MISCELLANEOUS FIRST APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE S G PANDIT AND THE HON'BLE MR. JUSTICE C.M. POONACHA ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE C.M. POONACHA) The present appeal is filed by the claimants calling in question the judgment and award dated 21.07.2016 passed in M.V.C. No.100/2013 by the Additional Motor Accident Claims Tribunal, Kumta1. 2. The parties will be referred to as per their rank before the Tribunal, for the sake of convenience. 3. It is the case of the claimants that one Shabirabi2, along with her husband and children were traveling in a Maruti Omni vehicle bearing registration No.KA-05/MC-6934 belonging to their family friend, from Kumta towards Ankola on N.H.17 1 hereinafter referred to as ‘the Tribunal’ 2 hereinafter referred to as ‘the deceased’ - 3 - NC: 2025:KHC-D:4142-DB MFA No. 103229 of 2016 and when they reached Ettinbail Khandagar cross, a truck came from the opposite direction and the driver of the Maruti Omni vehicle lost control of the vehicle causing the accident in question, due to which the deceased sustained grievous injuries and died on the way to the hospital. Claiming compensation for the death of the deceased, her husband and children filed a claim petition under Section 166 of the Motor Vehicles Act, 19883 arraying the owner, driver and the insurer of the Maruti Omni as respondents No.1 to 3 before the Tribunal. 4. The respondents No.1 and 2 as also respondent No.3-insurer filed their statement of objections. The claimant No.1 examined himself as P.W.1 and a witness as P.W.2. Exs.P.1 to P.11 were marked in evidence. Respondent No.1- owner examined himself as R.W.1, respondent No.2-driver examined himself as R.W.2 and the representative of the insurer examined himself as R.W.3. Exs.R.1 and R2 were marked in evidence. The Tribunal by its judgment and award dated 21.07.2016 dismissed the claim petition. Being aggrieved, the present appeal is filed by the claimants. 3 hereinafter referred to as ‘MV Act’. - 4 - NC: 2025:KHC-D:4142-DB MFA No. 103229 of 2016 5. Heard the submissions of the learned counsel, Sri. Moh’d Rafique for the appellants/claimants, learned counsel Sri. N.MPatil for Sri. J.S.Shetty, learned counsel for respondent No.1, and learned counsel Sri. Shashank Hegde for Smt. Preeti Shashank, learned counsel for respondent No.3-insurer. 6. Learned counsel for the appellants/claimants vehemently contends that the case is one of composite negligence and the driver, the owner and the insurer of Maruti Omni vehicle having been arrayed as parties to the claim proceedings, the Tribunal ought not to have dismissed the claim petition. It is further contended that in case of composite negligence, even if one of the tort feasors are made as parties to the claim proceedings, the same is maintainable and the claimants are entitled for compensation for the death of the deceased. Learned counsel places reliance on the judgment of a learned Single Judge of High Court of Kerala in the case of Theethi and others V. Motor Accidents Claims Tribunal and others4. 4 1996 ACJ 609 - 5 - NC: 2025:KHC-D:4142-DB MFA No. 103229 of 2016 7. Per contra, learned counsel for the respondents contends that the claim petition having been filed under Section 166 of the MV Act, the claimants ought to plead and prove negligence, in the absence of which the Tribunal was justified in dismissing the claim. It is further contended that the policy of the insurer issued in respect of Maruti Omni Vehicle is an “ACT Policy” and the deceased being an occupant of the said insured vehicle, respondent No.3-insurer is not liable to pay the compensation awarded. 8. The submissions of the learned counsels have been considered. The material on record including the records of the Tribunal have been perused. The question that arises for consideration is, “Whether the Tribunal was justified in dismissing the claim petition?” 9. It is noticed that the claimants in the claim petition have averred that when the truck came from the opposite side, the driver of the Maruti Omni lost control of the vehicle due to which the accident occurred. The claimant No.1 was the complainant who lodged the complainant pursuant to which the - 6 - NC: 2025:KHC-D:4142-DB MFA No. 103229 of 2016 FIR (Ex.P.1) was registered. The complaint (Ex.P.2) discloses that claimant No.1 had specifically stated therein that the accident occurred due to rash and negligent driving of the driver of the truck. In the criminal proceedings launched pursuant to the FIR (Ex.P.1), a ‘C’ Report has been filed since the truck was not traced. It is further relevant to note that the claimant No.1 examined himself as P.W.1 and he has stated that the accident occurred when the truck came from the opposite side and the driver of Maruti Omni lost control of the vehicle. 10. It is relevant to note here that both in the claim petition as well as in the affidavit by way of examination-in- chief of P.W.1, no specific averment is made as to the rash and negligent driving by the driver of the vehicles in question. On the contrary, the averments in the complaint (Ex.P.2) clearly disclose that claimant No.1 had specifically stated that the driver of the truck was responsible for causing the accident in question. The variance in the statement of claimant No.1 in the complaint (Ex.P.2) and the averments made in the claim petition has not been explained in the examination-in-chief adduced by P.W.1. Further, while asserting that the case is one - 7 - NC: 2025:KHC-D:4142-DB MFA No. 103229 of 2016 of composite negligence, the driver, the owner and the insurer of the other vehicle has not been made a party. 11. It is the vehement contention of the learned counsel for the appellant that the statement made by claimant No.1 in the complaint (Ex.P.2) was at the point in time when his wife had died and that the same ought to be read in the said context. However, the Tribunal, noticing the statement made in the cross-examination that P.W.1 had not lodged any complaint and not filed any protest petition against the ‘C’ Report, has disbelieved the statement of P.W.1. It is further relevant to note that P.W.1 stated that the police themselves wrote and took his signature on the complaint and he signed the complaint prepared by the police without knowing the contents of the complaint. The said statement is not liable to be accepted having regard to the fact that subsequently, claimant No.1 has not filed any protest petition against filing of the ‘C’ Report. Further, it is relevant to note that P.W.1 himself has produced the FIR and the complaint and has not chosen to explain the inconsistency in the statement made in the complaint and in the claim petition. - 8 - NC: 2025:KHC-D:4142-DB MFA No. 103229 of 2016 12. The Tribunal, while considering the material on record, has held that the claimants have failed to prove that the alleged accident took place due to the rash and negligent driving of the driver of the Maruti Omni vehicle and also of the truck. Noticing the fact that the deceased died in the road traffic accident caused by unknown truck, the Tribunal held that the claimants have not proved the rash and negligent driving on the part of the driver of the Maruti Omni vehicle. In view of the fact that the vehicle which caused the accident remained unidentified and was not insured with the insurer, who are arrayed as party in the claim proceedings, the Tribunal noticing that the accident was a ‘hit and run’ motor accident, has dismissed the claim petition. 13. The appellants have failed to demonstrate that the finding recorded by the Tribunal, in any manner, is erroneous and liable to be interfered with by this Court in this appeal. 14. Reliance placed by the learned counsel for the appellants on the case of Theethi and others (supra) will not aid the case of the appellants having regard to the fact that the said judgment is rendered in the context of Section 140 of the - 9 - NC: 2025:KHC-D:4142-DB MFA No. 103229 of 2016 MV Act and with regard to ‘no fault’ liability, whereas the present case is one under Section 166 of the MV Act. 15. In view of the above, the appeal is dismissed as being devoid of merits. Sd/- (S G PANDIT) JUDGE Sd/- (C.M. POONACHA) JUDGE KMS List No.: 1 Sl No.: 45