IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 26TH DAY OF NOVEMBER, 2019 PRESENT THE HON’BLE MRS. JUSTICE B.V.NAGARATHNA AND THE HON’BLE MS. JUSTICE JYOTI MULIMANI M.F.A. No.4699/2019 (MV-DB) BETWEEN:
1. SMT. RADAMMA @ RADHA AGED ABOUT 42 YEARS W/O LATE SRINIVASAIAH.
2. KUMARI S. KAVITHA AGED ABOUT 20 YEARS D/O LATE SRINIVASAIAH.
PETITIONER NO.1 & 2 ARE R/AT. No.2, 1ST FLOOR MUNIYAPPA BUILDING, 4TH CROSS BISMILLA BIRIYANI SHOP NAGAVARA PLAYA, C.V. RAMAN NAGAR BENGALURU – 560 093.
(BY SRI. ARAVIND REDDY H, ADVOCATE) AND:
1. K.G.I.D.
REP. BY ITS DIRECTOR 16TH FLOOR, V.V. TOWER Dr. AMBEDKAR VEEDI BENGALURU – 560 001.
2. DIST. HEALTH AND FAMILY WELFARE OFFICER (D.H.O.) REP. BY ITS DIRECTOR ... APPELLANTS ANAND RAO CIRCLE, BENGALURU – 560 001.
... RESPONDENTS (BY SMT. SHWETHA KRISHNAPPA, AGA FOR RESPONDENTS) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:12/03/2019, PASSED IN MVC No.7380/2018, ON THE FILE OF THE IX ADDITIONAL SMALL CAUSES JUDGE & XXXIV ACMM, COURT OF SMALL CAUSES, MEMBER, MACT-7, BENGALURU, DISMISSING THE CLAIM PETITION FOR COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, NAGARATHNA J., DELIVERED THE FOLLOWING:-
J U D G M E N T Though this appeal is listed for admission, with the consent of learned counsel for respondent Nos.1 and 2, it is heard finally.
2. The appellants are stated to be the widow and daughter of Srinivasaiah. They have filed this appeal assailing the judgment and award of the IX Additional Small Causes & Addl. MACT (SCCH-7), Bengaluru, (hereinafter referred to as “the Tribunal” for the sake of convenience), dated 12/03/2019, passed in MVC.No.7380/2018. The said claim petition has been dismissed and hence, this appeal.
3. Briefly stated the facts are that the appellant/claimants have filed the claim petition under Section 166 of the Motor Vehicles Act, 1988 seeking compensation on account of the death of P.Srinivasaiah.
According to the claimants, on 09/10/2018, at about 1.30 p.m., P.Srinivasaiah was riding his TVS XL Moped bearing registration No.KA-03-JE-5091, on Cubbon Road, near Manipal Centre, when at that time, the driver of the ambulance bearing Registration No.KA-42-G-331 (Government ambulance) drove the same in a reverse direction without any signal or flashing indicators, in a rash and negligent manner and dashed against the vehicle of Srinivasaiah. Hence, the right side hind portion of the ambulance dashed against the vehicle of Srinivasaiah and as a result, he fell down and sustained severe injuries to the head and chest. He was shifted immediately to Bowring Hospital in an unconscious condition and the doctor declared that the injured Srinivasaiah P., was dead. After the postmortem examination, the dead body was handed over to the claimants for the last rites. Contending that Srinivasaiah was hale and healthy and was aged 78 years and earning a sum of Rs.30,000/- per month by running a provision store and he was the only bread earner of the family, the widow and daughter of deceased Srinivasaiah filed the claim petition seeking compensation from the respondents on account of his death. The claimants had also registered a case under Sections 279 and 304(A) of the IPC read with Section 115 and 177 of the Motor Vehicles Act in Crime No.38/2018 against the driver of ambulance.
4. In response to the notices issued by the Tribunal, respondent Nos.1 and 2 did not appear and were placed ex parte.
5. In order to substantiate their case, the claimants examined PW.1, the widow of Srinivasaiah and she produced eight documents, which were marked as Exs.P-1 to P-8. The Tribunal formed the following points for its consideration:
(i) Whether the petitioners prove that they are legal heirs and dependents of deceased Srinivasaiah P.?
(ii) Whether the petitioners prove that the accident occurred due to rash and negligent act of driver of ambulance bearing registration No.KA-42-G-331 and caused the accident, due to impact Srinivasaiah P., sustained injuries and succumbed to said injuries?
(iii) Whether the petitioners are entitled for compensation? If so, how much and from whom?
(iv) What order?
6. On considering the evidence on record and on hearing the arguments of appellants’ counsel, the Tribunal answered point No.1 in the affirmative, point Nos.2 and 3 in the negative and dismissed the claim petition by holding that the claimants had failed to prove that the accident had occurred due to rash and negligent driving of driver of the ambulance bearing No.KA-42-G-331. Being aggrieved by the dismissal of the claim petition, they have preferred this appeal.
7. We have heard learned counsel for the appellant and learned Addl. Government Advocate for respondents and perused the original records.
8. Appellants’ counsel contended that the Tribunal was not right in dismissing the claim petition by holding that the claimants had not proved negligence. He contended that deceased Srinivasaiah died on account of the injuries sustained by him due to ambulance hitting him which fact has been established. He contended that ambulance was driven in a reverse manner and the driver of the ambulance did not take care while reversing the ambulance and consequently, hit Srinivasaiah who sustained grievous injuries and died immediately thereafter.
9. He submitted that any driver of a vehicle, has a duty to take care while driving the vehicle in a public place and a greater duty is cast on him when the driver is reversing the vehicle or proceeding in a reverse direction. It is expected that the vehicle always moves in a forward manner and reversing of a vehicle is an exception and while doing so, it is necessary that the driver of such a vehicle takes care in order to ensure that anybody behind the vehicle is not hit and injured. He submitted that in the instant case the vehicle in question is a Government ambulance and the driver of the said ambulance, while reversing the vehicle had to cautiously and slowly drive the vehicle and not in a negligent manner. Therefore, the Tribunal was not right in dismissing the claim petition without going into the aspect of awarding compensation. He submitted that the finding arrived at by the Tribunal on issue Nos.2 and 3 may be reversed and the appeal may be allowed.
10. Per contra, learned Addl. Government Advocate appearing for respondent Nos.1 and 2 contended that the documents produced by the claimants i.e., Ex.P-1 FIR, Ex.P-2 complaint and Ex.P-3 postmortem report are not at all sufficient to arrive at a conclusion of negligence on the part of the driver of ambulance in question. She contended that the Tribunal was justified in dismissing the claim petition and that there is no merit in this appeal.
11. Having heard learned counsel for the respective parties, the following points would arise for our consideration:
(i) Whether the Tribunal was justified in dismissing the claim petition?
(ii) What order?
12. It is the case of the appellant/claimants that Srinivasaiah died in a road traffic accident that occurred on 09/10/2018 when he was riding his TVS XL Moped bearing registration No.KA-03-JE-5091 on Cubbon Road, near Manipal Centre, Bengaluru, when the driver of the ambulance bearing No.KA-42-G-331 drove the same in a reverse direction without any proper signal and indication and dashed against Srinivasaiah. As a result, he fell down and sustained grievous injuries to his head and chest and died on the way to the hospital. In order to establish this fact, claimants have let-in their evidence. PW.1 Radhamma, the widow of the deceased Srinivasaiah was examined and she produced eight documents marked as Exs.P-1 to P-8. Ex.P-1 is FIR, Ex.P-2 is the complaint and Ex.P-3 is the postmortem report. On perusal of the same, it is noted that PW.1 is the complainant. She had stated that her husband died on account of rash and negligent driving of the Government ambulance on the fateful day when it was proceeding in a reverse direction and it hit her husband, Srinivasaiah as a result of which he succumbed to the injuries. Ex.P-2 is the copy of complaint and Ex.P-1 is the copy of FIR. The postmortem examination was conducted as per Ex.P-3. On perusal of Ex.P-3 postmortem report, it would indicate that the deceased Srinivasaiah died due to coma as a result of head injuries sustained and in order to link this aspect to the fact that the driver of the ambulance in question was the cause of accident, we have perused Ex.P-2, which is a complaint given by her to the Shivajinagar Traffic Police Station, Bengaluru. Perusal of the same would indicate that she has stated that ambulance bearing registration No.KA-42/G-331 was driven by its driver in a rash and negligent manner and while reversing the said vehicle he dashed against her husband. On the basis of Ex.P-2 complaint dated 09/10/2018, FIR has been registered by the Police Inspector of the jurisdictional police. These documents which have been produced by the claimants have not been controverted by the respondents inasmuch as the respondents though served with the notice by the Tribunal did not choose to appear and they were placed ex parte by the Tribunal. No doubt, burden is cast on the claimants to prove that the accident occurred due to negligent driving of the driver of the ambulance and due to the impact, the ambulance hit the motorcycle on which the deceased Srinivasaiah was proceeding and he sustained grievous injuries and succumbed to the same. The said documents though have been considered by the Tribunal, they have not been given credence as the Tribunal has opined that indeed on the basis of Exs.P-1 to P-3, it could not come to a conclusion that the accident had occurred due to the rash and negligent driving of the ambulance bearing registration No.KA-42/G-331. That there is insufficiency of material produced before the Tribunal so as to prove the negligence. We find that the approach and reasoning of the Tribunal is incorrect for the following reasons: firstly, because there is no contra evidence produced by the respondents to contradict the case of the respondents. Secondly, there is consistency between Exs.P-1 to P-3 inasmuch as it has been established on a reading of the said documents that Srinivasaiah died as a result of the impact of the ambulance hitting the motorcycle which he was riding. It is the case of the claimants that the driver of the Government ambulance was reversing it and while doing so caused the accident resulting in the death of Srinivasaiah. To contradict this fact there is no contra evidence. Therefore, the Tribunal had to consider as to whether the said facts could lead to the finding of negligent act of the driver of ambulance.
13. While considering Exs.P-1 to P-3, we find that such an inference could be drawn and is a plausible one. In fact, a duty was cast on the driver of the vehicle to drive the same with due care and caution which has been clearly indicated in the Motor Vehicles (Driving) Regulations, 2017. That every driver shall at all times drive the vehicle with due care and caution, but the said duty is cast not only when the vehicle is moving in a forward direction. In fact, greater duty is cast when the vehicle is being reversed inasmuch as the driver of the vehicle which is being reversed, has to take greater care and be more cautious to ensure that the vehicle which is being reversed does not hit any person or any other vehicle, which is behind the said vehicle. In the instant case, the case of the appellants is that the driver of the ambulance while reversing the same hit the motorcycle on which Srinivasaiah was proceeding. As a result, he fell down, sustained grievous injuries and died on the way to the hospital. Therefore, it is clear that there was no due care and caution exercised by the driver of the ambulance while reversing it. The negligence on the part of the driver of the ambulance is clearly established from the documents produced. Such an inference has not been drawn by the Tribunal and a contrary finding has been given stating that the claimants have not proved negligence. The said finding arrived at by the Tribunal is contrary to the evidence on record. Hence, it is reversed and point No.1 raised by the Tribunal is answered in the affirmative and in favour of appellants. Accordingly, point No.1 herein is answered in favour of the appellants.
14. It is noted that the Tribunal has not considered the case of the claimants with regard to the award of compensation because the claim petition has been dismissed on the preliminary issue by holding that there was a failure on the part of the claimants to prove the negligence. In the circumstances, we deem it just and proper to remand the matter to the Tribunal so as to give a finding on the compensation to be awarded to the claimants in the instant case. Hence, the matter is allowed and remanded to the Tribunal to consider only the said aspect of the case namely, on assessment of compensation.
15. Since the parties are represented by their respective counsel, they are directed to appear before the Tribunal on 06/01/2020 without expecting any separate notices from the Tribunal.
16. The Tribunal shall dispose of the matter in accordance with law and in an expeditious manner.
Parties to bear their respective costs.
Office to return the lower Court records to the concerned Tribunal forthwith.
Sd/- JUDGE Sd/- JUDGE S*