Dismissed

Nagarathnamma @ Rathnamma v. the Director M/S a L Sudarshan Construction Co. Ltd.

Karnataka HC5 Jun 2012MFA/10069/2008

Case brief

AI extract

What is this about?

In this miscellaneous first appeal against a Motor Accident Claims Tribunal order dismissing a compensation claim for a scooter rider's death, the Karnataka High Court affirmed the lower tribunal's finding that the deceased rider was solely negligent for overloading the scooter and failing to maintain a safe distance from the lorry.

What did the court decide?

The miscellaneous first appeal was dismissed holding that the claimants are not entitled to any compensation.

Nagarathnamma @ Rathnamma Vs the Director M/S a L… — Motor Accident Claims | Karnataka HC (2012)

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IN THE HIGH COURT OF KARNATAKA AT BANGALORE

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DATED THIS THE 5^TH DAY OF JUNE 2012

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BEFORE

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THE HON’BLE MR.JUSTICE K.N.KESHAVANARAYANA

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MISCELLANEOUS FIRST APPEAL No.10069/2008

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BETWEEN:

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Nagarathnamma @ Rathnamma, Aged about 27 years, W/o. Late Harish.

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Yateesh, S/o. Late Harish, 8 years, Minor Represented by Natural guardian Mother, Appellant No.1.

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Kenchabyrappa, Aged about 52 years, S/o. Late Puttaramaiah.

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Kamalamma, Aged about 50 years, W/o. Kenchabyrappa. All are residents of Mashanipalya, Beladhara Post, Tumkur Taluk & Dist. …Appellants

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(By Shri Patel D. Karegowda, Advocate)

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AND:

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The Director, M/s. A.L.Sudarshan,

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Construction – Company Ltd., Shirdi Sainagar, Kondayapalem, Nellur, Andhra Pradesh.

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The United India Insurance Co. Ltd., Railway Feeder Road, Sullurpet, Nellur District, Andhra Pradesh. …Respondents

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(By Shri O.Mahesh, Advocate for R2 & Notice to R1 dispensed with)

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This Miscellaneous First Appeal is filed under Section 173(1) of Motor Vehicles Act, against the judgment and award dated 21.09.2007 passed in M.V.C.No.1013/2004 on the file of Additional Civil Judge (Senior Division) and Motor Accident Claims Tribunal, Tumkur, dismissing the claim petition for compensation.

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This Miscellaneous First Appeal coming for orders on this day, the Court delivered the following: -

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JUDGMENT

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This appeal by the claimants is directed against the judgment and award dated 21.09.2007 passed by the Additional Civil Judge (Senior Division) and Motor Accident Claims Tribunal, Tumkur, in M.V.C.No.1013/2004 dismissing the said claim petition.

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The appellants – claimants being the wife and children of one Harish filed the claim petition seeking

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compensation for the death of said Harish in the motor vehicle accident that occurred at about 09:00 p.m. on 14.05.2004. According to the claimants, on the ill-fated day, the deceased along with three other persons was proceeding on his scooter bearing registration No.KA-06-H-6073 towards Amruthagiri in Koratagere Taluk and while he was so proceeding on Tumkur Koratagere road between 08:45 and 09:00 p.m., near Singonahalli gate, tipper lorry bearing registration No.AP-26U-5485 which was proceeding ahead of him suddenly stopped by its driver without giving any signal. As a result, the deceased who was riding the scooter, suddenly applied the breaks and on account of this, the rider as well as the pillion rider fell down from the scooter and the rider sustained severe injuries to which he died at the spot. Thus, according to the claimants the accident was due to the rash and negligent act on the part of the driver of the tipper lorry. Therefore, the claimants sought compensation from the owner and insurer of the lorry. The owner of the lorry remained exparte. However, the insurer of the lorry contested the claim petition, inter alia on the ground that even as per the case of the claimants, the accident was

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solely due to the negligence of the deceased – the rider of the scooter and therefore, the owner and insurer of the lorry are not liable to compensate the claimants. In that view of the matter, the insurer sought for dismissal of the claim petition.

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In the light of the pleadings of the parties, the

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Tribunal framed the following issues: -

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“1. Whether the claimant proves that on 14.05.2004 at 09:00 p.m. near Sigonahalli gate Harish met with accident due to wrongful use of tipper lorry bearing regn. No.AP-26-U-5484 by its driver, thereby Harisha sustained injuries and died at the spot?

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2. Whether the claimants prove that they are the LRs. and dependents of deceased Harish?

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3. To what compensation the claimants are entitled to? And from whom?

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4. To what order?”

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In support of their case, one of the claimants

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namely Smt. Nagarathnamma @ Rathnamma, wife of the deceased was examined as P.W.1 and one Ravishankar who was stated to be one of the pillion riders on the scooter, was examined as P.W.2. The claimants placed reliance on the

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documentary evidence, marked as Exs.P-1 to P-4. On the other hand, an Officer of the Insurance Company was examined as R.W.1. The copy of the Insurance Policy was marked as Ex.R2, while the authorisation letter authorising R.W.1 to give evidence was marked as Ex.R-1.

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After hearing both sides and on assessment of the oral and documentary evidence, the learned Member of the Tribunal, by the judgment under appeal, dismissed the claim petition on the ground that the accident was solely due to the negligence of the deceased as rider of the scooter as such, the claimants are not entitled for any compensation from the respondents. Aggrieved by the said judgment, the claimants are in appeal before this Court.

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I have heard Shri Patel D. Karegowda, learned counsel for the appellants and Shri O.Mahesh, learned counsel for the respondent No.2. Perused the records secured from the Court below.

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As noticed supra, even according to the averments made in the claim petition, at the time of the alleged accident,

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the deceased was riding the scooter along with three persons as pillion riders. Even as per the averments made in the claim petition, the tipper lorry was proceeding ahead of the scooter and since the driver of the tipper lorry stopped the lorry suddenly, the rider of the scooter suddenly applied the break. As a result, the rider as well as the pillion riders fell down. The scooter is designed to carry only two persons namely rider and one pillion rider and on such vehicle four persons cannot be proceed. The very fact that in all four persons were proceeding on the scooter designed for only two persons, would clearly indicate that the rider of the scooter was not in a position to ride the vehicle properly and have proper control over the same. While proceeding on a road, the rider of the scooter was expected to keep safe distance from the vehicle going ahead of him. In the case on hand, it appears the deceased as the rider of the scooter was proceeding very closely to the lorry going ahead and on account of the lorry suddenly stopping, the rider was made to apply the break and on account of the fact that there were four persons on the scooter, obviously the rider has

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lost control over the vehicle and has fallen on the ground sustaining injuries.

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It is not the contention of the claimants in the

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claim petition that the lorry hit the scooter. However, it was other way. According to the averments in the claim petition, the scooter dashed against the right hind portion of the lorry. However, strangely P.W.2, who was one of the pillion riders, in his examination-in-chief filed by way of affidavit, has given a different story. According to his examination-in-chief, while they were proceeding on the scooter, the lorry which was driven by its driver in a rash and negligent manner suddenly took a turn to the right side and dashed against the scooter ridden by the deceased. This evidence is quite contrary to the contents of the complaint lodged by one Hanumesh, who was also a pillion rider on the scooter. The claimants have produced a copy of the First Information Report – Ex.P1, which contains the statement of Hanumesh, based on which the case came to be registered by the Police. As per the statement of Hanumesh, in all, four persons were proceeding on the scooter and since the lorry

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going ahead of the scooter suddenly stopped the rider applied breaks, as a result, the rider lost control and fell on the ground.

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9. Having regard to the evidence on record and the

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manner in which the accident occurred, I am of the opinion that the Tribunal has not committed any error in holding that the accident in question was solely due to the negligence of the deceased himself. Therefore, the claimants are not entitled for any compensation from the owner and insurer of the lorry. The findings recorded by the Tribunal are just and reasonable having regard to the evidence on record and there is no perversity or illegality in the judgment under appeal. Therefore, the judgment under appeal does not call for interference by this Court.

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Accordingly, the appeal is dismissed.

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SD/JUDGE

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Rsh

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Nagarathnamma @ Rathnamma v. the Director M/S a L Sudarshan Construction Co. Ltd.

Case brief

What is this about?

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Nagarathnamma @ Rathnamma v. the Director M/S a L Sudarshan Construction Co. Ltd.

Case brief

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What did the court decide?

What the court decided

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