IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE H.P. SANDESH M.F.A.No.2935/2012 (MV) BETWEEN:
UNITED INDIA INS. CO. LTD., NO.40, LAKSHMI COMPLEX, K.R. ROAD, BENGALURU-02. NOW BY ITS REGIONAL OFFICE, KRISHI BHAVANA, HUDSON CIRCLE, BENGALURU-560 001.
BY ITS MANAGER. … APPELLANT (BY SRI B.A. RAMAKRISHNA, ADVOCATE) AND:
1. SRI UMESH N, AGED ABOUT 21 YEARS, S/O NAGARAJ, NEAR ICE FACTORY, ANEKAL TALUK, ANEKAL POST, BENGALURU RURAL DISTRICT.
2. SRI K.R. SOMASHEKARA REDDY, MAJOR, S/O K.R. RAJAKRISHNA REDDY, NO.1, BERATANA AGRAHARA, LAVA KUSHA NAGAR, HOSUR ROAD, ELECTRONIC CITY POST, BENGALURU-560 100.
3. M/S. TATA AIG GENERAL INSURANCE CO. LTD., NO.69, JP & DEVI, JUMBUKESHWAR, ARCADE, MILLERS ROAD, BENGALURU-560 052.
4. M/S. MANJUNATH TRADING CO., BY ITS INCHARGE MANAGER, NO.17/12, 4TH MAIN, 7TH CROSS, APMC YARD, YESHWANTHPUR, BENGALURU-560 022. ... RESPONDENTS (BY SRI P. SURESH, ADVOCATE FOR R-1, SRI O. MAHESH, ADVOCATE FOR R-3, NOTICE TO R-2 AND R-4 IS DISPENSED WITH VIDE ORDER DATED 09.07.2014) THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 17.8.2011 PASSED IN MVC NO.7564/2009 ON THE FILE OF JUDGE, MEMBER, MACT, BENGALURU, AWARDING THE COMPENSATION OF RS.94,770/- WITH INTEREST @ 8% P.A. FROM THE DATE OF PETITION TILL DEPOSIT.
THIS M.F.A. COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This appeal is filed by the appellant Insurance Company challenging the judgment and award dated 17.8.2011 passed in M.V.C.No.7564/2009 on the file of the Motor Accident Claims Tribunal, Bangalore, questioning the fastening of the liability only on the respondent No.1 (appellant herein).
2. It is the case of the petitioner before the Tribunal that on 27.7.2009 at about 1.20 p.m., the petitioner was standing on the center median for crossing the road at Dr. Marigowda Road near 14th Cross, Wilson Garden, Bangalore, carefully and cautiously and by observing the traffic. At that time, all of a sudden a private bus bearing No.KA-51-A-2799 driven in a rash and negligent manner at a high speed dashed to a auto and hit the railings of the median and to the petitioner and another. As a result, the petitioner fell down on the other side of the road. At that time, a car bearing No.KA-02-MD-5853 came at a high speed in a rash and negligent manner and dashed to the petitioner. Due to the impact, the petitioner sustained injuries. Hence, the petitioner claimed the compensation before the Tribunal.
3. After the service of summons, the respondent Nos.1 and 3 appeared and filed their respective written statements. The respondent No.1 contended that the accident is caused on account of the negligence on the part of the driver of the car and the bus. The respondent No.1 also contended that the driver of the car was not having valid driving licence. The respondent No.3 contended that there is no contributory negligence on the part of the driver of the car and the accident is on account of negligence on the part of the driver of the bus only. The petitioner in order to substantiate his claim, examined himself as P.W.1 and examined the doctor as P.W.2 and got marked the documents at Exs.P.1 to 11. On the other hand, the respondents examined three witnesses as R.Ws.1 to 3 and got marked the documents at Exs.R.1 and 2.
4. The Tribunal after considering both oral and documentary evidence, allowed the petition in part and fastened the liability on the respondent No.1 and dismissed the petition against the respondent Nos.3 and 4. Being aggrieved by the judgment and award of the Tribunal fastening the liability on the respondent No.1, the present appeal is filed.
5. In the appeal memorandum it is contended that the Tribunal has committed an error in fastening the liability only on the appellant/respondent No.1. The documents which are produced before the Court – FIR and charge sheet clearly discloses that the negligence was on the part of both the vehicles. Hence, the Tribunal ought to have apportioned the liability on the respondent No.1 and respondent No.3. Hence contended that the Tribunal has committed an error.
6. The learned counsel for the appellant in his arguments vehemently contended that the Tribunal has not properly assessed the oral and documentary evidence placed on record and committed an error fastening the liability only on the respondent No.1. The Tribunal ought to have considered the contributory negligence on the part of the driver of the car and the driver of the bus. There is a specific allegation in the complaint that after the investigation, the police have filed the charge sheet against the driver of both the vehicles. The sketch which is marked as Ex.P.5 discloses the place of accident.
7. On the other hand, the learned counsel for the respondent No.3 contends that though there is an allegation in the complaint as well as in the charge sheet, the Tribunal has rightly appreciated the evidence available on record i.e., the evidence of P.W.1. P.W.1 in his evidence categorically admits that if the bus had not hit the auto, there was no chance of the accident and the car was driven in the right direction. On account of his sudden falling on the road, the accident has taken place. There was no negligence on the part of the driver of the car. Hence, the Tribunal considering the admission of P.W.1 and also the documentary evidence has rightly fastened the liability on the appellant/respondent No.1. Hence, there are no grounds to interfere with the findings of the Tribunal.
8. Having heard the arguments of the learned counsel for the appellant and the learned counsel for the respondent Nos.1 and 3, the points that arise for the consideration of this Court are:
(i) Whether the Tribunal has committed an error in fastening the liability only on the appellant/respondent No.1 and whether it requires interference of this Court?
(ii) What Order?
Point Nos.(i) and (ii):
9. The main contention of the appellant in this case is that there was negligence on the part of the driver of the car and the driver of the bus. There are recitals in the complaint as well as in the charge sheet with regard to negligence on the part of both the vehicles. The Tribunal has ignored the averments made in the complaint and in the charge sheet. In order to substantiate his contentions, the counsel also relied on sketch – Ex.P.5.
10. Before appreciating the documentary evidence, it is appropriate to consider the evidence of P.W.1 and other witnesses. P.W.1 in the cross-examination admits that if the bus had not hit the auto, the question of involvement of the car in the accident would not have arisen. He further admits that due to his sudden fall on the other side of the road, the car dashed him and there was no fault on the part of the car driver.
11. R.W.1 in his evidence states that the accident spot is a two way road, there is a median in the middle of the road but in some places there is a gap. The complainant has alleged in the complaint that the bus dashed against the autorickshaw thereafter auto in the same force came and dashed to pedestrian standing in the median of the road. According to the contents of the complaint, the pedestrian fell on the another portion of the road after the auto dashed him. It is not correct to say that even though there was no fault of the car driver, unnecessarily charge sheet is filed against the car driver.
12. In the cross-examination of R.W.1, it is elicited that front portion of the autorickshaw is damaged as per the IMV report. It is further elicited that the driver of the car has pleaded guilty before the criminal case and he has paid the fine. It is suggested that there was no fault on the part of the bus driver and the same was denied.
13. R.W.2 though filed the affidavit, he was not subjected to cross-examination.
14. R.W.3 in his evidence stated that there was no negligence on the part of the driver of the car. He was subjected to cross-examination. In the cross-examination, he admits that the police have filed the charge-sheet mentioning that the accident is due to the fault of the car driver and bus driver. He has not challenged that charge sheet since they were not parties to the charge sheet. It is elicited in the cross-examination that he has not seen the accident. He has no personable knowledge regarding the contents of para No.5 to 7 of the affidavit. It is further elicited that he has no personal knowledge as to whether the car driver has challenged the charge-sheet filed against him. He admits that according to him root cause of this accident is the bus so he has stated that there is no fault of car driver. It was suggested that there was no chance of sustaining the injuries to the petitioner, if the car did not dashed him and the same was denied.
15. Having considered the evidence of P.W.1, R.W.1 and R.W.3 and also considering the documentary evidence, spot sketch – Ex.P.5, it is clear that the accident had taken place near the junction. P.W.1 in his cross-examination he categorically admits that if the bus had not dashed against the autorickshaw, there was no possibility of his sustaining the injury due to the dashing of the car to him. He further admits that due to his sudden fall on the other side of the road, the car dashed against him and there is no fault on the part of the car driver. Since the witnesses who have been examined as R.W.1 and R.W.3 are not having the personal knowledge of the accident, the Court has to mainly rely upon the evidence of P.W.1 and also the spot sketch.
16. On perusal of Ex.P.5, it is clear that the bus came and hit the autorickshaw wherein the pedestrian i.e., the claimant and auto were standing in order to cross the junction and as a result when the bus hit the auto, the auto came in contact with the claimant. Hence, he fell on the other side of the road and the car which was coming in the other side of the road hit the pedestrian. On perusal of the sketch, it is clear that the driver of the car cannot expect any person to suddenly fall in the direction in which he was proceeding. The fact that car hit the auto is not in dispute. The fact that in turn the auto hit the claimant is also not in dispute.
17. Having considered the factual aspects of the case and also the sketch, it is clear that consequent upon the hit made by the driver of the bus to the auto, the auto came in contact with the claimant and he suddenly fell on the other side of the road and the same cannot be expected by the driver of the car. Having considered the said aspect and the evidence of P.W.1, the Tribunal in paragraph No.17 of the judgment rightly appreciated both oral and documentary evidence available on record and given the reasoning that the driver of the bus is the root cause for the accident. Hence, I do not find any merit in the arguments canvassed by the learned counsel for the appellant. The very contention of the learned counsel for the appellant that the Tribunal ignored the contents of the complaint and the charge-sheet, cannot be accepted. Merely making the allegations in the complaint and in the charge sheet against the driver of the car, the Court cannot come to a other conclusion. The right person to speak about the negligence on the part of the driver of the car is the driver of the bus. He has not been examined and the defence of Insurance Company is not proved. In the absence of any cogent evidence before the Court that there is negligence on the part of the driver of the car, the Court cannot reverse the findings of the Tribunal. Hence, I do not find any merit in the appeal.
18. In view of the discussions made above, I pass the following:
ORDER (i) The appeal is dismissed.
(ii) The Registry is directed to transmit the amount in deposit, if any, to the Tribunal.
Sd/- JUDGE MD