IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF MARCH 2019 BEFORE THE HON’BLE MR. L. NARAYANA SWAMY, ACTING CHIEF JUSTICE M.F.A. NO.2604 OF 2018 (MV) BETWEEN:
1. SMT.V.SUKANYA W/O LATE M.VINOD KUMAR AGED ABOUT 25 YEARS 2. SMT.SHANTHI W/O LATE MEGHANATHAN AGED ABOUT 52 YEARS BOTH ARE RESIDING AT 341, RAMESHANAGAR CROSS VIBUTHIPURA BANGALORE NORTH BANGALORE – 560 037 ... APPELLANTS (BY SRI.GOPALAKRISHNA.N. ADV.) AND:
1. DR. B.RANGANATH S/O E.BASAVAIAH MAJOR IN AGE RESIDING AT NO.42, 2ND CROSS C R LAYOUT, J P NAGAR 1ST PHASE BENGALURU – 560 078 2. THE IFFCO TOKIO GENERAL INSURANCE COMPANY LTD., SRI.SHANTHI TOWERS, 5TH FLOOR NO.141, 3RD MAIN EAST OF NGEF LAYOUT, KASTURI NAGAR BANGALORE – 560 043 REP. BY ITS MANAGER ... RESPONDENTS (BY SRI.E.I.SANMATHI, ADV. FOR R2;
NOTICE TO R1 IS DISPENSED WITH V/O DTD:28.03.2019) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:07.01.2017 PASSED IN MVC NO.2445/2016 ON THE FILE OF THE XVI ADDITIONAL JUDGE, MEMBER, MACT, COURT OF SMALL CAUSES, BENGALURU, (SCCH-14), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T For the death of the breadwinner of the family, the legal representatives of the deceased viz. the wife, and the mother of the deceased have preferred claim petition before the Motor Vehicles Accident Tribunal, Bangalore. The Tribunal by its judgment and award dated 07th January, 2017 passed in MVC No.2445 of 2016 awarded compensation of Rs.21,61,000/- and by fixing liability on the both the vehicles at 50% each, the Tribunal has awarded compensation of Rs.10,81,000/-.
2. The case of the appellant-claimants before the Tribunal is that on 31st January, 2016 when the deceased was riding motorcycle bearing registration No.KA 03 HN 7842 along with his friend Kumar as pillion rider and the motorcycle was being driven slowly and cautiously on NH 75 from Vibhuthipura towards KGF and when they came near Bellur Bridge, Vemgal Hobli, the offending vehicle Maruti Car bearing registration No.KA 05 MF 674 being driven by its driver in high speed, rash and in negligent manner came in front of the appellant’s vehicle and suddenly applied brakes and stopped on the middle of the road, as a result of which the riders of the motorcycle were knocked down. The deceased was initially taken to RL Jalappa Hospital, Kolar for first aid and then he was referred to MS Ramaiah Hospital and thereafter shifted to NIMHANS, Bengaluru and during the course of treatment, he succumbed to the injuries.
3. The only ground taken by the learned counsel appearing for the appellant-claimants is with regard to the fastening of 50% negligence on the rider of the two-wheeler. He submits that the First Information Report was filed against the offending car driver immediately after the accident, and after investigation the police have filed charge sheet against the car driver. The evidence of two eye-witnesses PW2 and PW3 would reveal that the offending car overtook the motorcycle from right side and came to the extreme left of the road and then without any indication suddenly applied the brakes resulting in the motorcycle dashing to the hind side of the car. Hence he submits that the Tribunal has committed an error in fixing negligence on the rider of the motorcycle. He submits that this is an error committed by the Tribunal.
4. Per contra, the learned counsel appearing for the respondent-Insurer submits that the riders of the two-wheeler were carrying a live goat and the while overtaking the car he lost control and dashed against the hind portion of the car. Hence, the rider of the motorcycle has also contributed to the accident and there is no error committed by the Tribunal by fixing 50% negligence. Hence he submits to dismiss the appeal.
5. Heard the learned counsel for the parties and gone through the judgment and award passed by the Tribunal. Exhibit P1 is the First Information Report. Smt. Sukanya, the wife of the deceased is examined as PW1. She is not an eyewitness. PWs 2 and 3 are the eyewitness to the incident. In their evidence they have deposed that the car which over took the two-wheeler from the right side came to extreme left of the road and without any indication suddenly applied the brakes which resulted in the two wheeler coming on from the rear side dashed to the hind portion of the car. After the accident, charge sheet has been filed against the driver of the car for the offence punishable under Section 279, 337, 304(A) of the Indian Penal and under Sections 177 and 187 of the Motor Vehicles Act. Though there is delay of one day in lodging the complaint, the same may be because of the fact that the claimants were concentrating on the act of taking the injured to the hospital. Though there is evidence to the effect that the car overtook the motorcycle from the right side and came to the extreme left side of the road and without any indication suddenly applied the brakes, but had the rider of the motorcycle taken a little care of slowing the two-wheeler, the impact of dashing the motorcycle to the hind side could have been lessened to some extent. It has also come in the evidence that the riders of the motorcycle were carrying a live goat. The same is not permissible, this is an offence committed by the rider of the two-wheeler. In that view of the matter and also considering the age of the first appellant, who is 25 years having become widow at this young age and also the widowed mother of the deceased, I am inclined to modify the award of the Tribunal and fixing the negligence on the vehicles in the ratio of 20:80 in respect of two-wheeler and car respectively. The other portion of the judgment and award of the Tribunal remain undisturbed. The award of the Tribunal stands modified to that extent. Registry to draw-up award accordingly. Appeal is allowed in part.
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ACTING CHIEF JUSTICE lnn