IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF DECEMBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT M.F.A.NO.939 OF 2015 (MV - I) C/W M.F.A.NOS.940 OF 2015, 228 OF 2014, 8520 OF 2014, 8523 OF 2014, 8524 OF 2014, 8525 OF 2014, 937 OF 2015, 938 OF 2015 IN M.F.A. NO.939/2015 BETWEEN:
THE MANAGING DIRECTOR, KARNATAKA STATE ROAD TRANSPORT CORPORATION, CENTRAL DIVISION, KH ROAD, SHANTHI NAGAR, BANGALORE – 560 027.
REPRESENTED BY CHIEF LAW OFFICER, KSRTC, BANGALORE.
... APPELLANT (BY SRI. K.NAGARAJA, ADVOCATE) AND:
1. SRI.MADHU KUMAR & OTHERS, S/O SURENDRA PRASAD, AGED ABOUT 27 YEARS, DOMMASANDRA POST, SAJAPURA HOBLI, ANEKAL TALUK, BANGALORE – 562 125.
2. DHANANJAYA, S/O RAMACHANDRA REDDY, DAMMSANDRA (v)& (p), AGED ABOUT 24 YEARS, ANEKAL TQ.
BANGALORE – 562 125.
3. THE GENERAL MANAGER, TATA AIG GENERAL INS. COMP., LTD., K.C.M.F. BUILDING, 3RD FLOOR, 3RD BLOCK, NO.8, CUNNINGHAM ROAD, BANGALORE – 560 052.
... RESPONDENTS (BY SRI SANDEEP KATTI, ADVOCATE FOR R1; SRI.S.V.HEGDE MULKHAND, ADVOCATE FOR R3; R2 NOTICE DISPENSED WITH VIDE ORDER DATED 14-10-2019) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 17.10.2014 PASSED IN MVC NO.113/2012 ON THE FILE OF THE 20TH ADDITIONAL SMALL CAUSES JUDGE, MEMBER, MACT, BANGALORE, AWARDING A COMPENSATION OF RS.10,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION OF THE AMOUNT.
IN M.F.A. NO.940/2015 BETWEEN:
THE MANAGING DIRECTOR, KARNATAKA STATE ROAD TRANSPORT CORPORATION, CENTRAL DIVISION, KH ROAD, SHANTHI NAGAR, BANGALORE – 560 027.
REPRESENTED BY CHIEF LAW OFFICER, KSRTC, BANGALORE.
(BY SRI. K.NAGARAJA, ADVOCATE) AND:
1. MANJUNATH T., S/O LATE THIMMARAYAPPA, AGED ABOUT 26 YEARS, RESIDING NO.342, NEAR MARIYAMMA TEMPLE ROAD, DOMMASANDRA POST, SARJAPURA HOBLI, ANEKAL TALUK, BANGALORE – 562 125.
2. DHANANJAYA, S/O RAMACHANDRA REDDY, DAMMSANDRA (v)& (p), AGED ABOUT 24 YEARS, ANEKAL TQ.
BANGALORE – 562 125.
3. THE GENERAL MANAGER, TATA AIG GENERAL INS. COMP., LTD., K.C.M.F. BUILDING, 3RD FLOOR, 3RD BLOCK, NO.8, CUNNINGHAM ROAD, BANGALORE – 560 052.
... APPELLANT ... RESPONDENTS (BY SRI SANDEEP KATTI, ADVOCATE FOR R1; SRI.S.V.HEGDE MULKHAND, ADVOCATE FOR R3; R2 NOTICE DISPENSED WITH VIDE ORDER DATED 14-10-2019) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 17.10.2014 PASSED IN MVC NO.111/2012 ON THE FILE OF THE 20TH ADDITIONAL SMALL CAUSES JUDGE, MEMBER, MACT, BANGALORE, AWARDING A COMPENSATION OF RS.1,21,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION OF THE AMOUNT.
IN M.F.A. NO.228/2014 BETWEEN:
THE MANAGING DIRECTOR, KARNATAKA STATE ROAD TRANSPORT CORPORATION, CENTRAL DIVISION, KH ROAD, SHANTHI NAGAR, BANGALORE – 560 027.
REPRESENTED BY CHIEF LAW OFFICER, KSRTC, BANGALORE.
... APPELLANT (BY SRI. K.NAGARAJA, ADVOCATE) AND:
1. SHASHIDHAR L., S/O LAKSHMAIAH REDDY, AGED 51 YEARS, 2. LAKSHMAMMA, W/O SHASHIDHAR L, AGED 42 YEARS, BOTH ARE RESIDING AT DOMMASANDRA VILLAGE, SAJAPURA HOBLI, ANEKAL TALUK, BANGALORE – 591 213.
3. SRI. DHANANJAYA R, S/O RAMACHANDRA REDDY, DOMMSANDRA VILLAGE, SARJAPUR HOBLI, ANEKAL TALUK, BANGALORE – 560 025.
4. THE TATA AIG GENERAL INS. CO., LTD., BY ITS MANAGER, STRATEGIC BUSINESS UNIT, K.S.C.M.F. BUILDING, 3RD FLOOR, 3RD BLOCK, NO.8, CUNNINGHAM ROAD, BANGALORE – 560 052. ... RESPONDENTS (BY SRI RAMACHANDRA R NAIK, ADVOCATE FOR R1 AND R2; SRI.S.V.HEGDE MULKHAND, ADVOCATE FOR R4;
R3 NOTICE D/W V/O DATED 14-10-2019) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 29.08.2013 PASSED IN MVC NO.4795/2011 ON THE FILE OF THE VIII ADDITIONAL SMALL CAUSE JUDGE, & XXXIII ACMM, MEMBER, MACT, COURT OF SMALL CAUSES, BANGALORE, AWARDING COMPENSATION OF RS.8,30,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION.
IN M.F.A. NO.8520/2014 BETWEEN:
THE GENERAL MANAGER, TATA AIG GENERAL INS. COMP., LTD., STRATEGIC BUSINESS UNIT, K.S.C.M.F. BUILDING, 3RD FLOOR, 3RD BLOCK, NO.8, CUNNINGHAM ROAD, BANGALORE – 560 052.
THROUGH ITS REGIONAL OFFICE, NO.69, 3RD FLOOR, JP & DEVI JAMBUKESHWAR ARCADE, MILLERS ROAD, BANGALORE – 560 052. REPRESENTED BY ITS BRANCH CLAIMS MANAGER.
(BY SRI.S.V.HEGDE MULKHAND, ADVOCATE) AND:
1. MANJUNATH T., S/O LATE THIMMARAYAPPA, AGED ABOUT 28 YEARS, RESIDING NO.342, NEAR MARIAMMA TEMPLE ROAD, ... APPELLANT DOMMASANDRA POST, SARJAPURA HOBLI, ANEKAL TALUK, BANGALORE – 562 125 2. MANAGING DIRECTOR, KSRTC, K.H.ROAD, BANGALORE – 560 027.
3. VISHWANATH P.C., S/O CHIKKA MUNIAPPA, MAJOR IN AGE, BUS DRIVER, R/O NO.900, 18TH MAIN, 5TH BLOCK, RAJAJINAGAR, BANGALORE – 560 010.
4. SRI.DHANANJAYA, S/O RAMACHANDRA REDDY, DOMMASANDRA VILLAGE, SARJAPURA HOBLI, BANGALORE – 562 125. ... RESPONDENTS (BY SRI SANDEEP KATTI, ADVOCATE FOR R1; SRI.K.NAGARAJA, ADVOCATE FOR R2; R3 NOTICE D/W V/O DATED 18-08-2018; R4 SERVED UNREPRESENTED) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 17.10.2014 PASSED IN MVC NO.111/2012 ON THE FILE OF THE XX ADDITIONAL SMALL CAUSES JUDGE, MEMBER, MACT, BANGALORE, AWARDING COMPENSATION OF RS.1,21,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION.
IN M.F.A. NO.8523/2014 BETWEEN:
THE GENERAL MANAGER, TATA AIG GENERAL INS. COMP., LTD., STRATEGIC BUSINESS UNIT, K.S.C.M.F. BUILDING, 3RD FLOOR, 3RD BLOCK, NO.8, CUNNINGHAM ROAD, BANGALORE – 560 052.
THROUGH ITS REGIONAL OFFICE, NO.69, 3RD FLOOR, JP & DEVI JAMBUKESHWAR ARCADE, MILLERS ROAD, BANGALORE – 560 052. REPRESENTED BY ITS BRANCH CLAIMS MANAGER.
... APPELLANT (BY SRI.S.V.HEGDE MULKHAND, ADVOCATE) AND:
1. MADHU KUMAR S, S/O SURENDRA PRASAD, AGED ABOUT 26 YEARS, R/O NO.342, NEAR MUTHYALAMMA TEMPLE, DOMMASANDRA POST, SAJAPURA HOBLI, ANEKAL TALUK, BANGALORE – 562 125.
2. MANAGING DIRECTOR, KSRTC, K.H.ROAD, BANGALORE – 560 027.
3. VISHWANATH P.C., S/O CHIKKA MUNIAPPA, MAJOR IN AGE, BUS DRIVER, R/O NO.900, 18TH MAIN, 5TH BLOCK, RAJAJINAGAR, BANGALORE – 560 010.
4. SRI.DHANANJAYA, S/O RAMACHANDRA REDDY, DOMMASANDRA VILLAGE, SARJAPURA HOBLI, BANGALORE – 562 125. ... RESPONDENTS (BY SRI SANDEEP KATTI, ADVOCATE FOR R1; SRI.K.NAGARAJA, ADVOCATE FOR R2; R3 AND R4 NOTICE D/W V/O DATED 12.11.2019) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 17.10.2014 PASSED IN MVC NO.113/2012 ON THE FILE OF THE XX ADDITIONAL SMALL CAUSE JUDGE, MEMBER, MACT, BANGALORE, AWARDING COMPENSATION OF RS.10,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION.
IN M.F.A. NO.8524/2014 BETWEEN:
THE GENERAL MANAGER, TATA AIG GENERAL INS. COMP., LTD., STRATEGIC BUSINESS UNIT, K.S.C.M.F. BUILDING, 3RD FLOOR, 3RD BLOCK, NO.8, CUNNINGHAM ROAD, BANGALORE – 560 052.
THROUGH ITS REGIONAL OFFICE, NO.69, 3RD FLOOR, JP & DEVI JAMBUKESHWAR ARCADE, MILLERS ROAD, BANGALORE – 560 052. REPRESENTED BY ITS BRANCH CLAIMS MANAGER. ... APPELLANT (BY SRI.S.V.HEGDE MULKHAND, ADVOCATE) AND:
1. VIJAYAKUMAR N., S/O NARAYANAPPA, AGED ABOUT 30 YEARS, R/O NO.342, NEAR MUTHYALAMMA TEMPLE, DOMMASANDRA POST, SAJAPURA HOBLI, ANEKAL TALUK, BANGALORE – 562 125.
2. MANAGING DIRECTOR, KSRTC, K.H.ROAD, BANGALORE – 560 027.
3. VISHWANATH P.C., S/O CHIKKA MUNIAPPA, MAJOR IN AGE, BUS DRIVER, R/O NO.900, 18TH MAIN, 5TH BLOCK, RAJAJINAGAR, BANGALORE – 560 010.
4. SRI.DHANANJAYA, S/O RAMACHANDRA REDDY, DOMMASANDRA VILLAGE, SARJAPURA HOBLI, BANGALORE – 562 125. ... RESPONDENTS (BY SRI SANDEEP KATTI, ADVOCATE FOR R1; SRI.K.NAGARAJA, ADVOCATE FOR R2; R3 IS SERVED; R4 NOTICE D/W V/O DATED 12.11.2019) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 17.10.2014 PASSED IN MVC NO.112/2012 ON THE FILE OF THE XX ADDITIONAL SMALL CAUSE JUDGE, MACT, MEMBER, BANGALORE, AWARDING COMPENSATION OF RS.92,600/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION.
IN M.F.A. NO.8525/2014 BETWEEN:
THE GENERAL MANAGER, TATA AIG GENERAL INS. COMP., LTD., STRATEGIC BUSINESS UNIT, K.S.C.M.F. BUILDING, 3RD FLOOR, 3RD BLOCK, NO.8, CUNNINGHAM ROAD, BANGALORE – 560 052. THROUGH ITS REGIONAL OFFICE, NO.69, 3RD FLOOR, JP & DEVI JAMBUKESHWAR ARCADE, MILLERS ROAD, BANGALORE – 560 052.
REPRESENTED BY ITS BRANCH CLAIMS MANAGER. ... APPELLANT (BY SRI.S.V.HEGDE MULKHAND, ADVOCATE) AND:
1. CHETAN KUMAR D.M., S/O MARIAPPA D.R., AGED ABOUT 26 YEARS, R/O NO.342, NEAR ESHWARA TEMPLE ROAD, DOMMASANDRA POST, SARJAPURA HOBLI, ANEKAL TALUK, BANGALORE – 562 125.
2. MANAGING DIRECTOR, KSRTC, K.H.ROAD, BANGALORE – 560 027.
3. VISHWANATH P.C., S/O CHIKKA MUNIAPPA, MAJOR IN AGE, BUS DRIVER, R/O NO.900, 18TH MAIN, 5TH BLOCK, RAJAJINAGAR, BANGALORE – 560 010.
4. SRI.DHANANJAYA, S/O RAMACHANDRA REDDY, DOMMASANDRA VILLAGE, SARJAPURA HOBLI, BANGALORE – 562 125. ... RESPONDENTS (BY SRI SANDEEP KATTI, ADVOCATE FOR R1; SRI.K.NAGARAJA, ADVOCATE FOR R2; R4 IS SERVED; R3 NOTICE D/W V/O DATED 18.08.2018) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 17.10.2014 PASSED IN MVC NO.114/2012 ON THE FILE OF THE XX ASCJ ADDITIONAL SMALL CAUSE JUDGE, MEMBER, MACT, BANGALORE, AWARDING COMPENSATION OF RS.1,19,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION.
IN M.F.A. NO.937/2015 BETWEEN:
THE MANAGING DIRECTOR, KARNATAKA STATE ROAD TRANSPORT CORPORATION, CENTRAL DIVISION, KH ROAD, SHANTHI NAGAR, BANGALORE – 560 027.
REPRESENTED BY CHIEF LAW OFFICER, KSRTC, BANGALORE. ... APPELLANT (BY SRI. K.NAGARAJA, ADVOCATE) AND:
1. SRI. VIJAY KUMAR N., S/O NARAYANAPPA, AGED ABOUT 31 YEARS, NEAR MUTHYALAMMA TEMPLE, DOMMASANDRA POST, SAJAPURA HOBLI, ANEKAL TALUK, BANGALORE – 562 125.
2. DHANANJAYA, S/O RAMACHANDRA REDDY, DAMMSANDRA (v)& (p), AGED ABOUT 27 YEARS, ANEKAL TQ, BANGALORE – 562 125.
3. THE GENERAL MANAGER, TATA AIG GENERAL INS. COMP., LTD., K.C.M.F. BUILDING, 3RD FLOOR, 3RD BLOCK, NO.8, CUNNINGHAM ROAD, BANGALORE – 560 052. ... RESPONDENTS (BY SRI S.V.HEGDE MULKHAND, ADVOCATE FOR R3; R1 AND R2 SERVED UNREPRESENTED) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 17.10.2014 PASSED IN MVC NO.112/2012 ON THE FILE OF THE 20TH ADDITIONAL SMALL CAUSES JUDGE, MEMBER, MACT, BANGALORE, AWARDING A COMPENSATION OF RS.92,600/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION OF AMOUNT.
IN M.F.A. NO.938/2015 BETWEEN:
THE MANAGING DIRECTOR, KARNATAKA STATE ROAD TRANSPORT CORPORATION, CENTRAL DIVISION, KH ROAD, SHANTHI NAGAR, BANGALORE – 560 027.
REPRESENTED BY CHIEF LAW OFFICER, KSRTC, BANGALORE. ... APPELLANT (BY SRI. K.NAGARAJA, ADVOCATE) AND:
1. SRI. CHETAN KUMAR & OTHERS S/O MARIYAPPA D.R, #342 NEAR ESHWARA TEMPLE ROAD AGED ABOUT 27 YEARS, DOMMASANDRA POST SAJAPURA HOBLI, ANEKAL TALUK, BANGALORE-562 125.
2. DHANANJAYA, S/O RAMACHANDRA REDDY, DAMMSANDRA (v)& (p), AGED ABOUT 27 YEARS, ANEKAL TQ, BANGALORE – 562 125.
3. THE GENERAL MANAGER, TATA AIG GENERAL INS. COMP., LTD., K.C.M.F. BUILDING, 3RD FLOOR, 3RD BLOCK, NO.8, CUNNINGHAM ROAD, BANGALORE – 560 052. ... RESPONDENTS (BY SRI S.V.HEGDE MULKHAND, ADVOCATE FOR R3;
R1 – SERVICE OF NOTICE D/W V/O DATED 12-11-2019) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 17.10.2014 PASSED IN MVC NO.114/2012 ON THE FILE OF THE MEMBER, MACT, 20TH ADDITIONAL SMALL CAUSES JUDGE, BANGALORE, (SCCH 22), AWARDING A COMPENSATION OF RS.1,19,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION OF AMOUNT.
THESE MFAs COMING ON FOR FURTHER HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT These batch of appeals except MFA.No.228/2014 in MVC.No.4795/2011 relates to common judgment and award dated 17-10-2014 in MVC.Nos.111/2012, 112/2012, 113/2012 & 114/2012 on the file of the Member, MACT & XX Additional Small Causes Judge, Bangalore, whereas, MFA.No.228/2014 is against the judgment and awarded dated 29-8-2013 in MVC.No.4795/2011 on the file of the VIII Additional Small Causes Judge & XXXIII ACMM, Member-MACT, Bangalore.
2. All these appeals arise out of the same motor vehicle accident, which had taken place on 06-6-2011 between the KSRTC Bus bearing Reg.No.KA-01-F-8351 and Skoda Car bearing Reg.No.KA-02-MD-1851 on NH-4, near Kolar town and all these appeals heard together with the consent of the learned counsels appearing for the parties and disposed of by this common judgment. The occurrence of the accident is not in dispute. These appeals i.e., MFA.Nos.937/2015, 938/2015, 8520/2014, 8523/2014, 8524/2014, 8525/2014 & MFA.No.939/2015 c/w MFA.No.940/2015 are by the Karnataka State Road Transport Corporation (for short ‘the KSRTC’) and by Insurer of the Skoda Car, against the saddling of contributory negligence to an extent of 50% each. MFA.No.228/2014 is by the KSRTC, against saddling of 100% liability on it under judgment and award dated 29-8- 2013 in MVC.No.4795/2011. The quantum of compensation awarded by the Tribunal is not in dispute in these appeals, the only question is with regard to the contributory negligence.
3. Heard the learned counsel for the KSRTC and learned counsel for the Insurer of the Skoda Car in question as well as learned counsel for the claimants. Perused the entire material on record including the lower court records.
4. Learned counsel for the KSRTC submits that the Tribunal committed an error in saddling 50% of the liability on KSRTC holding that the driver of the KSRTC Bus is negligent to an extent of 50% in occurrence of the accident, in the batch of claim petitions filed by the injured-claimants. Further, he submits that the Tribunal committed an error in saddling 100% liability in claim petition filed by the claimants, claiming compensation for the death of Santhosh @ Santhosh Kumar in the accident that occurred on 06-6-2011. He further submits that the KSRTC Bus was coming from Chennai to Bengaluru, whereas the Car in question was proceeding from Bengaluru to Chennai on NH-4. NH-4 consists of four lanes. Two lanes each are meant for each way, divided by median. It is his further submission that the way from Chennai to Bengaluru was closed for repair work and the deviation was permitted to proceed on the road meant for Bengaluru to Chennai. Accordingly, the KSRTC Bus driver was proceeding towards Bengaluru on the left side of the road, whereas the Skoda Car was coming from Bengaluru towards Chennai, which came in a rash and negligent manner and dashed to the KSRTC Bus. The learned counsel further referred to IMV Report-Ex.P13 marked in MVC.Nos.111/2012, 112/2012, 113/2012 & 114/2012 and submits that the wind screen glass and left side body of the Bus up to front wheel damaged, whereas the front portion of the car bonnet, wind screen radiator and engine of the Car damaged, which the IMV Report discloses. Further, the learned counsel referring to the spot mahazar submits that the spot mahazar clearly notes that the one side road was closed temporarily and two way traffic was permitted on one side of the highway. Further, based on the mahazar, the learned counsel submits that the Bus was moving on the left side of the road and the road was 45 ft width. He further submits that there were four inmates in the Skoda Car, whereas one inmate died due to the accident and other three injured persons filed claim petitions who examined themselves as PWs-1 to PW-3. PW-1 & PW-2 in their cross-examination stated that they were sitting in the back seat of the Car and they were not in a position to say as to the occurrence of the accident. Learned counsel further submits that even though initially charge-sheet was filed against the driver of the KSRTC Bus, he was subsequently acquitted of the charges. In respect of the judgment and award in MVC.No.4795/2011 is concerned, the learned counsel submits that the Tribunal could not have come to the conclusion that the driver of the KSRTC Bus was 100% responsible/negligent for the occurrence of the accident and could not have saddled the entire liability on KSRTC. No material or evidence is placed on record in the said claim petition. The only witness examined on behalf of the claimants was the father of the deceased and the respondent-KSRTC examined RW- 1/driver of the KSRTC Bus. The Tribunal, only on the ground that evidence of RW-1 would not assist in determining the question of negligence, relying on police records held that the driver of the KSRTC Bus was entirely responsible/negligent for the occurrence of the accident, which is wholly perverse and erroneous. Thus, he prays for allowing the appeals filed by the KSRTC.
5. Per contra, learned counsel for the Insurer of the Skoda Car in question would submit that the Tribunal in judgment and award dated 17-10-2014 in MVC.Nos.111/2012, 112/2012, 113/2012 & 114/2012 is not justified in saddling 50% of the contributory negligence on the driver of the Car, since the accident had taken place due to the negligence of the driver of the KSRTC Bus. Referring to IMV Report, the learned counsel submits that the damage has been caused to the left side of the Bus and if the Bus was proceeding on the extreme left side, there is no chance for damage to the left side of the Bus. Further it is submitted that the photographs produced by the respondent-KSRTC at Ex.R7(a)(b)(c) & (d) would not depict the correct picture. The picture and the photographs have been taken much after the accident and the photographs wont show the Car. Further, the learned counsel would submit that PW-3/driver of the Car has stated that he was driving the Car on the left side of the road slowly and cautiously. The KSRTC Bus which came from opposite direction in a rash and negligent manner, colluded with the Car. Further, the learned counsel relies upon the statement recorded by the police during the course of investigation to say that the conductor and traffic controller have stated that the accident had taken place due to the negligent driving of the driver of KSRTC Bus. Thus, prays for allowing the appeals filed by the Insurer of the Car and dismiss the appeals filed by the KSRTC.
6. Having heard the learned counsels for the parties and on perusal of the entire lower court records, the following points would arise for consideration in the facts and circumstances of the case.
1) Whether the Tribunal is justified in saddling 50% of contributory negligence on KSRTC as well as on the Insurer of the Car in question in MVC.Nos.111/2012, 112/2012, 113/2012 & 114/2012 under judgment and award dated 17-10-2014?
2) Whether the Tribunal is justified in saddling 100% liability on KSRTC under judgment and award dated 29-8-2013 in MVC.No.4795/2011?
Answer to the above points would be in the affirmative and negative respectively for the following reasons:
POINT NO.1 1. The accident that had taken place on 06-6-2011 at about 2:00 AM involving KSRTC Bus bearing Reg.No.KA- 01-F-8351 and Skoda Car bearing Reg.No.KA-02-MD-1851 are not in dispute in these appeals. The KSRTC and the Insurer of the Car are in appeals, aggrieved by the saddling of 50% contributory negligence on them. The KSRTC had examined RW-1/driver of the KSRTC Bus, who has stated that he was driving the Bus bearing Reg.No.KA- 01-F-8351 and was coming from Chennai to Bengaluru. When the Bus reached near Tamaka, Car bearing Reg.No.KA-02-MD-1851 driven by its driver in a rash and negligent manner, overtaking tipper lorry came suddenly towards extreme right side and dashed to the front left side of the Bus. Further, he states that there was no space for the Bus on the left side of the road and the Bus was on the extreme left side of the road. The Insurer of the Car cross-examined RW-2/driver of the Bus in MVC.Nos.111 to 114/2012. RW-2 in his cross-examination admits that the charge-sheet is filed against him and he has not challenged the crime which is registered against him. It is to be noted here itself that subsequently after trial, the driver of the KSRTC Bus/RW-2, was acquitted of the charges leveled against him in C.C.No.462/2011. Ex.P13-IMV Report would disclose the damage caused to both the vehicles i.e., Bus and the Car. The damages noted in the IMV Report are as follows:
Damages caused to the Bus 1) Front left side shape Body, Head light and foot board damaged.
2) Wind Screen glass damaged.
3) Left side Body up to front wheel damaged.
4) Radiators damaged.
Damages caused to the Car 1) Front shape Bonnet head lights and radiator lights both side damaged.
2) Wind Screen glass damaged.
3) Radiators and Engine damaged.
4) Front suspension damaged.
5) Brake system damaged.
6) Steering system damaged.
7) Both sides doors and body damaged.
The above IMV Report would disclose that the front left portion of the Bus wind screen glass was damaged, whereas the front portion of the Car bonnet wind screen radiators are damaged. The spot mahazar – Ex.P4 in MVC.No.4795/2011 relating to the accident in question would reveal that the road width was 45 ft. The accident place was Bengaluru-Chennai NH-4 road. The Bus was stationed facing west and the Bus was damaged on the left side and the Car had dashed to the Bus and was stationed towards east direction.
2. The PWs-1, 2, 3 & 4 are claimants in MVC.Nos.111/2012, 112/2012, 113/2012 & 114/2012.
PW-1-Manjunath.T in his cross-examination to a specific question answered as follows:
“Q: At the time of accident, bus was moving extreme left side of the road, our car itself moved towards right side and dashed the Bus?
A: I cannot say, since I was sitting in back seat of the car”.
3. Further, the PW-2-Vijay Kumar.N who was also inmate of the Car, in his cross-examination states as follows:
“On the date of the accident, I was sitting in back seat of the car. It is true that at the time of the accident, I was sleeping. It is false to suggest that at the time of the accident, bus was moving extreme left side of the road, our car itself moved towards right side and dashed the bus. It is true that at the time of the accident, half portion of the road was closed due to road work, so both directions vehicles were moving in the same direction on same road. I have given evidence in criminal court in CC.No.462/2011 in Court of Principal Civil Judge and CJ Kolar. It is true that in the said case, accused was acquitted.”
4. The above evidence of the inmates of the Car would not in any way assist the case of the Insurer of the Car. PW-1 has stated that he was sitting in the back seat of the Car and he cannot say whether the Bus was moving on left side of the road or not. PW-2 in his cross-examination stated that he was sitting in back seat of the Car and he was sleeping at the time of the accident. With these evidence, if the photographs produced by the KSRTC at Ex.R7(a)(b)(c) & (d) even though the Car is not in picture, could be seen that the Bus is stationed on the left side and the accident spot where the oil is spilled and the glass pieces are spread over is on the left side of the road which means, the Bus was moving on the left side of the road. It is an admitted fact and there is no dispute that one side of the highway i.e., Chennai-Bengaluru side was closed for repair work and both the vehicles towards Bengaluru to Chennai and Chennai to Bengaluru were permitted to ply on the one side of the highway. The spot mahazar–Ex.P4 further discloses that the Bus was stationed facing western side and front side of the Bus slightly towards northern side, whereas the Car which had dashed the Bus was stationed facing towards eastern side and backside of the Car was little towards northern side. All these would reveal that the KSRTC Bus was moving on the extreme left side of the road and the Car driven by one Madhu Kumar.S/PW-3 dashed the KSRTC Bus. Thus, I am of the opinion that the accident had taken place due to the negligence of both the driver of the KSRTC Bus and driver of the Car. When the KSRTC Bus was coming, taking deviation on the Bengaluru-Chennai lane, the driver of the Bus also ought to have been cautious. Hence, the Tribunal is justified in saddling 50% of the contributory negligence on both the driver of the Bus as well as driver of the Car.
5. Learned counsel for the Insurer of the Car relied upon the statements recorded by the police during the investigation, wherein he contended that the traffic controller and conductor of KSRTC Bus stated that the accident had taken place due to the negligent driving of the driver of the Bus. On the statement recorded by the Police, charge-sheet was filed against driver of the Bus and after trial, in C.C.No.462/2011, the RW-1/driver of the Bus was acquitted of the charges leveled against him. Moreover, those statements recorded under Section 161 of Cr.P.C, and those statements cannot be relied upon to come to the conclusion that the accident had taken place solely due to the negligence of the driver of the KSRTC Bus in the absence of subjecting them for cross examination. Thus, Point No.1 is answered in the affirmative.
POINT NO.2 1. Under judgment and award dated 29-8-2013 in MVC.No.4795/2011, which also relates to the same accident as involved in point No.1, the Tribunal saddled the entire liability on the KSRTC. The Tribunal, only on the basis that the KSRTC not examined any other person except RW-1/driver of the Bus, has come to the conclusion that the accident had taken place solely due to the negligence of the driver of the KSRTC. The KSRTC has examined RW-1/driver of the KSRTC Bus, whereas on behalf of the claimants, only father of the deceased was examined as PW-1. No other independent witnesses were examined so as to say that the accident had taken place due to the negligence of the driver of the KSRTC Bus.
2. The KSRTC examined RW-1/driver of the KSRTC Bus and has marked Ex.R1-copy of the judgment in C.C.No.462/2011, wherein the driver of the KSRTC Bus is acquitted of the charges leveled against him in respect of the accident in question. IMV Report, which is marked as Ex.P8 in the claim petition reveals the damage caused to both the vehicles, which is extracted above, discloses that front portion of the Car is entirely damaged, whereas the front left portion of the Bus is damaged.
3. The claimants nor the Insurer of the Car examined the inmates of the Car in this claim petition. Moreover, the inmates of the Car who have been examined as PW-1 & PW-2 in MVC.Nos.111/2012, 112/2012, 113/2012 & 114/2012 arising out of the same accident have stated that they were sitting on the back seat and one of the inmate state that he was sleeping at the time of the accident. PW-1 stated that since he was sitting on the back seat, he was not in a position to say with regard to the negligence. In that circumstance, the Tribunal is not justified in saddling 100% liability on the KSRTC. As stated earlier, the Bus was moving on the left side of the road and it is an admitted fact that out of the two ways meant towards Bengaluru & Chennai, one of the way was closed for repair work and in one lane, both the vehicles were permitted to ply. The Bus was coming from Chennai to Bengaluru and Car was proceeding from Bengaluru towards Chennai. The KSRTC Bus which was coming on the other lane ought to have been cautious, whereas the driver of the Car who was coming from the opposite direction dashed the Bus, due to which both the vehicles got damaged and the claimants sustained injuries and one of the inmate died due to the accident. There is no material placed on record either by the claimants or by the respondent-Insurer of the Car to come to the conclusion that the accident had taken place solely due to the rash and negligent driving of the Bus driver and to saddle the entire liability on KSRTC.
4. From the material placed on record, I am of the view that the accident had taken place due to the negligence of both the driver of the Bus as well as driver of the Car. Thus, I hold that the Tribunal committed an error in saddling 100% liability on KSRTC in MVC.No.4795/2011. As I have come to the conclusion that the accident had taken place due to the negligent driving of both the driver of the Bus as well as driver of the Car, the contributory negligence is saddled equally on the driver of the KSRTC Bus as well as driver of the Car. Thus, the appeal filed by the KSRTC is allowed to the above extent. In all the other aspect, the judgment and award would remain intact. The amount in deposit by the KSRTC as well as Insurer be transmitted to the concerned Tribunal.
5. Accordingly, MFA.Nos.937/2015, 938/2015, 8520/2014, 8523/2014, 8524/2014, 8525/2014 & MFA.No.939/2015 c/w MFA.No.940/2015 are dismissed. MFA.No.228/2014 by the KSRTC is allowed in part.
Sd/- JUDGE SMJ