IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT M.F.A.NO.2409 OF 2014 (MV) BETWEEN:
The Divisional Controller, Division Office K S R T C, Rep. by its Divisional Manager, Divisional Office:
Bijai, Mangalore, Pin: 575 001.
Now, by the Managing Director, K S R T C, Central Office, K.H.Road, Bengaluru – 560 027.
(By Sri.F.S.Dabali, Advoacte) AND:
1. Chandravathi Adiga, W/o Anantha Adiga, Aged about 51 years, R/o Sowkur, Gulvadi Village and Post, Kundapura Taluk, District :Udupi, Pin : 576 201.
...Appellant 2. Ramappa Govinda Kamte, S/o Govinda Kamte, Aged 30 years, Resident of Near Someshwara Temple, Yakkunji Village – 586 101. Bijapura District.
3. Mohandas Shetty, S/o late Sadashiva Shetty, Aged about 37 years, Kundoor House, Golihole Post, Kundapura Taluk, Udupi District – 576 201.
4. The Manager, New India Assurance Company Limited, Pushpa Building Main Road, Kundapura, District – Udupi, Pin – 576201.
5. The Divisional Manger, The Oriental Insurance Company Limited, DO No.10, Chennai, Dwaraka, II Floor, 79, Uttamar Gandhi Salai, Chennai – 600034, State – Tamilnadu.
... Respondents (By Sri.K.Prasanna Shetty, Advocate for R.1; Sri.R.Jai Prakash, Advocate for R.4;
and Sri.K.Suresh, Advocate for R.5; Notice to R.2 is d/w v/o dated 17.09.2014 and Notice to R.3 is served) This MFA is filed under Section 173(1) of MV Act against the judgment and award dated 23.10.2013 passed in MVC No.542/2009 on the file of the Additional District and Sessions Judge and Additional MACT, Udupi (sitting at Kundapura), Kundapura, awarding compensation for Rs.70,000/- with interest at 6% p.a. from the date of petition till payment and the appellant herein is liable to pay the amount of Rs.35,000/- and etc.
This MFA coming on for Admission, this day, the Court delivered the following:
JUDGMENT Appellant - KSRTC is in appeal being aggrieved by saddling of the 50% contributory negligence on it under the judgment and award dated 23.10.2013 passed in MVC No.542/2009 on the file of the Additional District and Sessions Judge, Udupi (sitting at Kundapura), Kundapura.
2. The claim petition was filed under Section 166 of the Motor Vehicles Act, 1988, for claiming compensation in respect of the injuries sustained by the claimant in a road traffic accident. It is stated that on 21.02.2009 at about 9.50 a.m., when the claimant was traveling in KSRTC Bus bearing Reg.No.KA-19-F-2692, a Tipper Lorry bearing Reg.No.KA-20-A-9189 came in a rash and negligent manner and dashed to the bus, in which the claimant was traveling. Due to which, claimant sustained grievous injuries. The claimant was immediately shifted to Chinmayi Hospital, Kundapura, wherein she was treated as an inpatient. It is stated that the claimant was working as a teacher at Government Higher Primary School, Amasebail and drawing salary of Rs.15,000/- per month.
3. On issuance of notice, respondent Nos.2 to 4 appeared and only respondent Nos.3 and 4 filed their written statement. Respondent Nos.3 and 4 denied the claim petition averments. Further, respondent No.3 contended that accident occurred only due to the negligence of the driver of the KSRTC Bus, while the driver of the Tipper Lorry was driving in a moderate speed on the left side of the road. Whereas, the respondent No.4 – KSRTC in the statement contended that the accident occurred only due to negligence of the driver of the Tipper Lorry and also contended that the bus was insured with Oriental Insurance Company Limited.
4. The claimant herself examined as P.W.1 and also examined one witness as P.W.2, apart from marking documents Exs.P.1 to 9. No evidence was let in on behalf of the respondents.
5. The Tribunal based on the material on record, awarded total compensation of Rs.70,000/- with interest at 6% p.a. from the date of petition till payment and saddled the contributory negligence at 50% each on the respondent Nos.3 and 4. Appellant – KSRTC aggrieved by saddling of the 50% contributory negligence on it is before this Court.
6. Heard the learned counsel for the appellant and learned counsel for respondent No.4 – Insurer and respondent No.5 – KSRTC.
7. Learned counsel for appellant - KSRTC would submit that the accident occurred only due to the negligent driving of the driver of the Tipper Lorry. It is his submission that the accident had taken place on the middle of the road and the police have charge sheeted the driver of the Tipper Lorry as per Exs.P.2 and 3. Further, he submits that the accident had taken place at Ullur-74 Village, Amsadi, where the road is narrow and curve. The learned counsel for the appellant submits that the Corporation has filed application I.A.No.1/2019 under Order 41 Rule 27 Civil Procedure Code to place on record the judgment dated 17.01.2014 passed in MVC No.963/2010, which had arisen out of the same accident. It is his submission that the Corporation had filed claim petition against the owner and insurer of the Tipper Lorry claiming damages caused to the KSRTC Bus, wherein the Tribunal awarded total compensation of Rs.53,150/-. The Insurer has satisfied the said claim, without filing any appeal. The Insurer has admitted the negligence on the part of the driver of the Tripper Lorry and satisfied the claim. Therefore, the facts and circumstances of the above case also applies to the facts and circumstances of the present case.
8. Per contra, the learned counsel for respondent No.4 - Insurer submits that the Tribunal has rightly saddled 50% contributory negligence on both respondent Nos.3 and 4. It is his submission that the accident had taken place on the middle of the road due to negligence on the part of the driver of both the vehicles. Hence, the Tribunal has rightly saddled the contributory negligence on both drivers of the Bus and Tripper Lorry, which needs no interference. It is his further submission that filing of charge sheet cannot be a ground to saddle the entire liability on the driver of the Tripper Lorry. Thus, he prays for dismissal of the appeal.
9. Having heard the learned counsels for the parties and on perusal of the material on record, the only point which arises for consideration in the facts and circumstances of the case.
Whether the Tribunal is justified in saddling the contributory negligence at 50% each on the respondent Nos.3 and 4 in the facts and circumstances of the case?
Answer to the above point would be in the negative for the following reasons.
10. The accident occurred on 21-02-2009 involving KSRTC Bus bearing Reg.No.KA-19-F-2692 and a Tipper Lorry bearing Reg. No.KA-20-A-9189 and accidental injuries suffered by the claimant are not in dispute in this appeal. The Appellant – KSRTC filed the present appeal being aggrieved by saddling of 50% contributory negligence on it. Learned counsel for the appellant – KSRTC contended that the accident had taken place only due to the negligent driving of the driver of the Tipper Lorry. To appreciate the said contention, it is necessary to look into the Ex.P.1 – complaint and Ex.P.3 – Mahazar. The claimant herself stated in the complaint that while she was traveling in the KSRTC Bus, a Tipper Lorry came in a rash and negligent manner and dashed to the KSRTC Bus.
The mahazar would indicate that the accident had taken place on the middle of the road. Admittedly, the charge sheet has been filed against the driver of the Tipper Lorry.
P.W.1 in her evidence clearly stated that while she was traveling in the KSRTC Bus near Ullur-74 Village, a Tipper Lorry came from opposite direction in a rash and negligent manner and dashed to the KSRTC Bus. Due to which, she suffered injuries.
11. The claimant has also examined P.W.2, the driver of the KSRTC bus. In his evidence, he stated that he was driving the bus on the left side of the road and the Tipper Lorry driven by its driver in a rash and negligent manner dashed to the KSRTC Bus. He further in his evidence stated that the FIR is lodged against the driver of the Tipper Lorry and subsequently, charge sheet is also filed against the driver of the Tipper Lorry. P.W.2 is the eye witness to the accident. Respondent No.4 – Insurer has cross-examined the P.W.2 – driver nothing has been elicited from P.W.2. The appellant – KSRTC in its application under Order 41 Rule 27 of Civil Procedure Code has placed on record the judgment passed in MVC No.963/2010 on the file of III Additional District and Sessions Judge & MACT-IV, D.K., Mangalore, which had arisen from the same accident involving KSRTC Bus bearing Reg.No.KA-19F-2692 and Tipper Lorry bearing Reg.No.KA-20-A-9189, wherein the KSRTC, which had claimed damages from the owner of the Tipper Lorry and its Insurer, wherein the Tribunal had awarded a sum of Rs.53,150/- being the damages caused to the KSRTC Bus. The Insurer of the Tipper Lorry has accepted the same and satisfied the compensation awarded by the Tribunal, wherein the Tribunal has held that the accident had taken place only due to negligent driving of the driver of the Tipper Lorry and saddled the entire liability on the owner and Insurer of the Tipper Lorry. As the said document would have bearing on the conclusion to be arrived in this appeal, the said application is allowed and the said judgment and award dated 17.01.2014 passed in MVC No.963/2010 is taken on record. From the material on record i.e., evidence of P.Ws.1 and 2 and documents Exs.P.1 and 3, the judgment and award dated 17.01.2014 passed in MVC No.963/2010, I am of the view that the accident had taken place solely due to the negligent driving of the driver of the Tipper Lorry. As the charge sheet is also filed against the driver of the Tipper Lorry, I am of the view that the Tribunal has committed an error in saddling 50% contributory negligence on the KSRTC Bus. Entire liability is to be shifted to respondent Nos.3 and 4 i.e., owner and Insurer of the Tipper Lorry. Thus, the 4th respondent – Insurer i.e., New India Assurance Company Limited shall be liable to indemnify the 3rd respondent – owner of the Tipper Lorry and shall deposit the entire compensation amount i.e., Rs.70,000/- before the Tribunal within a period of six weeks.
12. For the reasons stated above, the judgment and award dated 23.10.2013 passed in MVC No.542/2009 on the file of the Additional District and Sessions Judge, Udupi (Sitting at Kundapura), Kundapura is set aside and the appeal is allowed.
The amount in deposit be refunded to the appellant – KSRTC.
SD/- JUDGE NBM