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2011 DIGILAW 619 (KAR)

M. R. Narasimhaiah v. N. M. Rajpal (HUF)

2011-06-20

H.S.KEMPANNA, K.L.MANJUNATH

body2011
JUDGMENT 1. MFA No.5713/2006 is filed by the claimant seeking enhancement of compensation awarded by the MACT., Bangalore dated 6.12.2005 in MVC No.1414/2002. MFA No.2369/2006 is filed by the Oriental Insurance Co. Ltd. challenging the liability saddled on it by the tribunal. Therefore these two appeals are heard together. 2. Following facts are not in dispute in these appeals are: Claimant is a driver of KSRTC bus. On 19.12.1999 he was driving the bus from Bangalore to Melvarthur con Chitoor-Palmaner road. When the bus reached Lakshmaiah Kandriga there was a head on collision between KSRTC bus of which claimant was driving and lorry bearing No. KA-01-3981. In the accident lorry driver died on the spot. Charge-sheet was registered against the claimant and there were several other claims lodged by the passengers who were in the bus. 3. It was contended by the claimant that the accident occurred on account of the rash and negligent driving of the lorry by its driver. But the respondent contended that the accident did not occur on account of the rash and negligent driving of the driver of the lorry but it was on account of the claimant. Before the tribunal, claimant was examined as PW-1. He relied upon the evidence of PW-2 to 4. On behalf of the respondent, two witnesses were examined as RW-1 & 2. Tribunal considering the evidence let in by the parties, held that the accident occurred on account of the contributory negligence of both the vehicles and the same was apportioned at the ratio of 50-50 and that a sum of Rs.70,800/- was awarded as compensation payable by the respondents. This order is called in question in this appeal by the claimant seeking enhancement. Respondents have also filed separate appeal contending that since the accident occurred on account of the rash and negligent driving of the claimant, he is not entitled to maintain a claim petition. 4. Having heard the counsel for the parties and on perusal of records, in order to ascertain whether there were any other claim petitions lodged by the victims of the accident, we directed Smt. Sumangala A Swamy, learned standing counsel to KSRTC to ascertain whether any claims were made and whether liability is saddled on the KSRTC or the owner of the lorry. Today, Smt. Sumangala A Swamy in submitted that three claim petitions were lodged in respect of the same accident and liability has been saddled on the KSRTC and KSRTC has satisfied the award. These facts are not in dispute. 5. Main contention of the claimant before us is that the tribunal was required to hold that the accident occurred due to the sole negligence of the driver of the lorry and that the compensation awarded is on lower side. Per contra, learned counsel appearing for the insurance company contends that purposely claimant did not produce the charge-sheet, FIR and the sketch. If these documents had been produced by him, sine they would go against him, purposely he did not produce the documents. Counsel appearing for the insurance company has produced charge-sheet, FIR and also the sketch drawn by the police at the time of investigation and contends that KSRTC bus which was being driven by the claimant went beyond the mid portion of the road to its extreme right side and dashed against an on-coming lorry, as a result driver of the lorry died on the spot. Therefore, claimant being a tort-feaser is not entitled to maintain a petition against the on-going lorry. In the circumstances, he requests the court to allow the appeal and dismiss the claim petition. 6. Having heard the counsel for the parties, we have to consider the following points in these appeals: 1. Whether the claimant is a tort-feaser and if he is a tort-feaser is he entitled to maintain a claim petition? 2. Whether the compensation awarded by the tribunal requires to be enhanced or not? 7. It is not in dispute that on the date of the accident claimant was driving the KSRTC bus from Bangalore to Melvarthur via Chitoor-Palmaner and the claimant was driving his vehicle from Palmaner towards Chitoor. On the spot of the accident, road which was running from west to east has a deep curve towards northern side. But unfortunately claimant who was driving his bus without observing the curve towards his north has straightaway proceeded as a result of which he dashed against the on-coming lorry, in the impact driver of the lorry died on the spot. Sketch is produced as Annexure-R6. By looking into Annexure-R6 one can visualize how the accident has taken place. But unfortunately claimant who was driving his bus without observing the curve towards his north has straightaway proceeded as a result of which he dashed against the on-coming lorry, in the impact driver of the lorry died on the spot. Sketch is produced as Annexure-R6. By looking into Annexure-R6 one can visualize how the accident has taken place. The claimant contends that respondents have not examined any person to show that the accident occurred on account of the rash and negligent driving of the appellant-claimant. But the appellant has forgotten that the driver of the lorry died on the spot, there could be no other eye witness to examine. As a matter of fact, in respect of the injuries sustained in the said accident and the death occurred, three claim petitions were lodged against the KSRTC and the appellant herein and not against the owner and insurance company of the lorry. When the employer of the appellant made submissions before this court that three awards were passed against the KSRTC and all the three awards have been satisfied by the KSRTC, it is difficult to accept the contention of the claimant that accident occurred due to rash and negligent driving of the driver of the lorry. It is curious to note that appellant who is the claimant before the tribunal and has approached this court stating that the accident occurred on account of the rash and negligent driving of the driver of the lorry, did not disclose that charge-sheet was filed against himself him. On the contrary, no police records were produced by the appellant-claimant. But these documents are produced by the insurance company of the lorry which discloses the conduct of the appellant. Considering the sketch and the charge-sheet filed against the appellant and that three awards passed only against the appellant’s employer, we are of the opinion that the accident did not occur on account of the negligence of the driver of the lorry. If really there were to be contributory negligence or accident had occurred on account of the rash and negligent driving of the driver of the lorry, employer of the appellant KSRTC would not have satisfied the award. On the contrary atleast KSRTC would have preferred an appeal on the ground that the accident occurred atleast on account of the contributory negligence of the drivers of both the vehicles. On the contrary atleast KSRTC would have preferred an appeal on the ground that the accident occurred atleast on account of the contributory negligence of the drivers of both the vehicles. In view of the above discussion, we are of the opinion that the accident did not occur on account of the rash and negligent driving of the driver of the lorry. It is due to rash and negligent driving of the appellant and therefore appellant has to be treated as tort-feaser. If the accident is on account of the rash and negligent driving of the appellant, he cannot maintain a claim petition against the owner and the insurance company of the lorry as they are no way concerned with the accident. In the circumstances, we hold point No.1 against the appellant-claimant and we further hold that the claim petition lodged by him was not maintainable. In view of our finding on point No.1, we are of the view that there is no necessity for us to consider the compensation payable to the claimant/appellant. 8. In the result, appeal filed by the appellant/claimant seeking enhancement of compensation in MFA 5713/2006 is hereby dismissed. MFA No.2369/2006 filed by the Oriental Insurance Company is hereby allowed, thereby the claim petition lodged by the claimant in MVC No.1414/2002 on the file of MACT., Bangalore is hereby dismissed. Amount if any in deposit in MFA No.2369/2006 is ordered to be refunded to the appellant-insurance company. In view of the dismissal of appeals, Misc. CVL.21989/10 filed in MFA 2369/06 does not arise for consideration. Accordingly, the same is dismissed as having become infructuous. We appreciate the assistance rendered by Smt. Sumangala A Swamy in these appeals. We place our appreciation on record.