IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MR.JUSTICE B.SREENIVASE GOWDA MISCELLANEOUS FIRST APPEAL No.1993/2012 (MV) BETWEEN:
N.D.SUDEEPA DEAD BY LRs A) N.T.DASAPPA S/O THIMMANAGOWDA AGED ABOUT 62 YEARS B) TEJAKSHI W/O N.T.DASAPPA AGED ABOUT 58 YEARS C) N.D.JYOTHILAKSHMI D/O N.T.DASAPPA AGED ABOUT 28 YEARS AND:
ALL ARE R/O INDIRANAGARA BALEBAILU, THIRTHALLI TALUK SHIMOGA DISTRICT – 577432 (CAUSE TITLE AMENDED VIDE COURT ORDER DATED 11.07.2016). …APPELLANTS (BY SRI P.N.HARISH, ADV.) 1. VENKATESH S/O GOPALKRISHNA AGED ABOUT 48 YEARS R/AT VADDINABYLU, RYAVE, HOSANAGARA TALUK, SHIMOGA DISTRICT-577201 OWNER OF PASSENGER BUS GURUSHREE BEARING REG. NO. KA-19-A-2984 2. RAJESH S/O ACHANNA SHETTY AGED ABOUT 35 YEARS DRIVER OF GURUSHREE BUS BEARING REG. NO. KA -19-A-2984 R/O MILKERI, THIRTAHALLI TOWN SHIMOGA DISTRICT-577201.
3. THE BRANCH MANAGER M/s ORIENTAL INSURANCE COMPANY LTD., GARDEN AREA SHIMOGA CITY-557201. …RESPONDENTS (BY SRI K.K.VASANTH, ADV. FOR R-3.) THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT & AWARD DATED 17.11.2011 PASSED IN MVC NO.177/2009 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE, ADDITIONAL MACT-7, SHIMOGA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T With the consent of learned counsel appearing for the parties, the appeal is heard, admitted and disposed of finally.
2. This appeal is by the claimant, challenging the judgment and award passed by the Tribunal both on the grounds of negligence as well as quantum.
3. As there is no dispute regarding certain injuries sustained by the claimant in a road traffic accident that occurred on 24.05.2008 by involvement of a motorcycle bearing registration No.KA-14-H-5348 and a bus bearing registration No.KA-19-A-2984, the points that arise for consideration in the appeal are:
“1. Whether the finding of the Tribunal on negligence in holding that the claimant had sustained injuries in the road traffic accident occurred due to contributory negligence of 50% on the claimant in riding his motorcycle and 50% on the driver of the bus is sustainable in law?
2. Whether the quantum of compensation awarded by the Tribunal is just and reasonable or does it call for enhancement? ”
4. Sri.P.N.Harish, learned counsel appearing for the claimant submits that though the claimant was proceeding on his two wheeler on the left side of the road slowly and carefully by observing all the traffic rules and regulations, the accident has occurred due to sole rash and negligent driving of Gurushree bus by its driver, the Tribunal without considering the same, has committed an error in holding that accident had occurred due to contributory negligence of both the claimant and the driver of the bus in driving their respective vehicles. He submits that the quantum of compensation awarded by the Tribunal is on the lower side. Learned counsel has fairly brought to the notice of the Court that during the pendency of the appeal, the claimant died for different reasons and not on account of injuries sustained by him in the accident. His submission is placed on record. With this, he prays for allowing the appeal by modifying the judgment and award of the Tribunal both on the ground of negligence and on quantum.
5. Sri.K.K.Vasanth, learned counsel appearing for the insurer of Gurushree Bus submits that though the driver of the bus was driving the bus slowly and carefully on the left side of the road by observing all traffic rules and regulations the accident had occurred due to rash and negligent driving of two wheeler by the claimant himself. However, the Tribunal considering the oral and documentary evidence on record, has held that the accident had occurred due to contributory negligence of the claimant and driver of the bus at the rate of 50% each and therefore he submits that finding of the Tribunal on negligence does not call for interference of this Court. Regarding quantum of compensation awarded by the Tribunal, learned counsel submits that whatever the compensation awarded by the Tribunal is just and reasonable and prays for dismissal of the appeal in its entirety.
6. According to the claimant, he was proceeding on his two wheeler from Theerthahalli towards Agumbe and the bus was coming from the opposite direction. It is admitted case of the claimant as well as the owner and insurer of the bus that the vehicles were proceeding in the opposite directions. The claimant in support of his contention that he was riding his motorcycle slowly and carefully on the left side of the road, had examined himself as PW-1 and eye witness to the accident as PW-2 and got marked Notice, FIR, Complaint, Final report, Spot Panchanama, Motor Vehicles report as Ex.P1 to Ex.P6.
The insurer of the bus who contended before the Tribunal that the accident had occurred due to sole negligence of the claimant in riding his two wheeler and not on account of negligent driving of the driver of the Bus, did not chose to examine either the driver of the Bus or any witness to the accident. However, with the consent of the parties, the sketch and policy produced by the insurer were marked as Ex.R-1 and Ex.R-2 respectively. Perusal of the sketch would only show that the motorcycle and bus were proceeding in the opposite directions. Even the spot of accident was not marked in the sketch. Claimant examined as PW-1 has deposed before the Tribunal that, the direction to which he was proceeding is slope and down gradient and there is curve. If that is so, then it has to be presumed that the direction to which the Bus was proceeding was up gredient. The person who lodged the complaint with the police contending that accident has occurred due to the rash and negligent driving of the bus was not examined by the claimant. PW-2 who is stated to be one of the eye witnessess to the accident, has deposed that he had seen the accident at the distance of 60 to 80 feet. Therefore, he was not present at the spot of the accident. The Tribunal by observing that there was some place to the left side of the claimant and he could have taken his vehicle towards his left and could have avoided the accident, has held that accident has occurred due to contributory negligence of both the claimant and the driver of the Bus in equal proportion whereas either in the sketch or in the mahazar, exact spot of accident is not stated. Therefore, considering the above facts and seize of the vehicles involved in the accident, it has to be held that negligence contributed by the claimant was lesser comparing to that of the driver of the bus which would be at the rate of 25% and 75% respectively. Therefore, finding of the Tribunal is modified holding that the accident had occurred due to rash and negligent driving of both the claimant as well as driver of the bus at the rate of 25% and 75% respectively. Point No.1 is answered accordingly.
7. Learned counsel appearing for the appellants fairly submits that during the pendency of the appeal, claimant died for some reasons than for the injuries sustained in the accident. Therefore, the question of enhancing the compensation already awarded by the Tribunal does not arise.
8. Hence, appeal is allowed in part. The judgment and award of the tribunal is modified. The appellants who are the LRs of the deceased claimant are entitled to 75% of the compensation awarded by the Tribunal amounting to Rs.2,37,750/-. The insurer of the bus is directed to deposit Rs.2,37,750/- with interest at 6% per annum from the date of claim petition till the date of realization within two months from the date of receipt of a copy of this order.
9. From the compensation amount of Rs.2,37,750/-, Rs.1,50,000/- with proportion interest is ordered to be invested in fixed deposit in the name of first appellant – father of the deceased claimant in any Nationalised Bank/Scheduled Bank/Post Office for a period of 5 years with a right of option for him to withdraw interest periodically. The balance amount with proportionate interest shall be released in favour of all the claimants in equal proportion immediately after the deposit.
10. The Tribunal while releasing Rs.87,750/- with proportion interest, shall issue the fixed deposit slips to the first appellant, so as to enable him to withdraw F.D amount on its maturity without approaching the Tribunal once again and the Bank is also directed to release the Fixed deposit amount on its maturity without insisting for any further order from the Tribunal. The Tribunal shall try to release the amount and issue FD slips on the same day and if possible transfer Rs.87,750/- into SB account of the first appellant by effecting RTGS.
NC.
Sd/- JUDGE