Dismissed

Sri. R. Rajkumar v. the Managing Director

Karnataka HC12 Nov 2020MFA/8870/2015

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed an appeal against the Motor Accident Claims Tribunal decision rejecting a compensation claim for a motorcycle driver's death. The Court found insufficient evidence to establish the bus driver's negligence, holding the Tribunal's findings were correct based on the preponderance of probabilities.

What did the court decide?

Appeal dismissed; impugned judgment and award of the Tribunal affirmed.

Sri. R. Rajkumar Vs the Managing Director — Motor Accident Claims | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 12^TH DAY OF NOVEMBER, 2020

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PRESENT

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THE HON’BLE MRS.JUSTICE S.SUJATHA

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AND

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THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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M.F.A.No.8870/2015 (MV)

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BETWEEN :

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1 . SRI R.RAJKUMAR S/O LATE M.RAMASWAMY, AGED ABOUT 56 YEARS

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2 . SMT.BALASARASWATHI W/O R.RAJKUMAR, AGED ABOUT 49 YEARS

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BOTH ARE PERMANENT R/O M.R.SWAMY COLLEGE, Dr. AMBEDKAR NAGAR, OOORGAUM POST, K.G.F, KOLAR DISTRICT THE SECOND PETITIONER PRESENTLY R/AT # 20, 1^ST CROSS, 2^ND FLOOR, NEAR AMRUTH TALKIES, LINGARAJAPURAM, St. THOMAS TOWN, BENGALURU-560084 ...APPELLANTS

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(BY SRI RAGHAVENDRA K., ADV.)

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AND :

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THE MANAGING DIRECTOR KARNATAKA STATE ROAD

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TRANSPORT CORPORATION, K.H. ROAD, SHANTHINAGAR, BENGALURU-560027 …RESPONDENT

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(BY SRI G.LAKSHMEESH RAO, ADV.)

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THIS M.F.A. IS FILED UNDER SECTION 173(1) OF M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED 28.09.2015 PASSED IN MVC No.4904/2014 ON THE FILE OF THE XIII ADDITIONAL SMALL CAUSES JUDGE & MACT, BANGALORE, DISMISSING THE CLAIM PETITION FOR COMPENSATION.

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THIS APPEAL HAVING BEEN HEARD AND RESERVED ON 02.11.2020, COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY, S. SUJATHA, J ., DELIVERED THE FOLLOWING:

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J U D G M E N T

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This appeal is preferred against the judgment and award dated 28.09.2015 passed in MVC No.4904/2014 on the file of the Motor Accident Claims Tribunal, Court of Small Causes at Bengaluru [SCCH:15] [‘Tribunal’ for

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short].

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The claimants instituted petition under

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Section 166 of the Motor Vehicles Act, 1988 ['Act' for

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short] claiming compensation for the death of their son R.Balachander in the road traffic accident.

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It was contended in the claim petition that on 05.05.2014 at 8.45 p.m., the deceased while driving the motorcycle bearing registration No.KA-08-K-5572 in front of ARTO office at KGF, met with the road traffic accident owing to the actionable negligence of the driver of the KSRTC bus bearing registration No.KA-57-F-862 [offending vehicle]. Due to the said impact, the deceased sustained fatal injuries and succumbed to the same on the spot. Accordingly, compensation was sought for.

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In response to the service of notice, the respondent has put its appearance through its counsel and filed statement of objections denying the petition averments. It was specifically contended that at the time of the accident, bus was moving in front of ARTO office at KGF and the motorcycle driver who was coming from the opposite direction came in a negligent manner, lost

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control over the vehicle and fell down on the road. The public gathered and started pelting stones at the bus. The driver stopped the vehicle and along with the conductor went to Oorguam police station, KGF. The police having noticed that the bus was no way involved in the accident, allowed the driver and the conductor to proceed. Accordingly, sought for dismissal of the petition with costs.

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On the basis of the pleadings, the Tribunal framed the following issues:

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1. Whether the petitioners prove that they are the LRs of the deceased?

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2. Whether the petitioners prove that the deceased R.Balachandar died in the motor vehicle accident that occurred on 05.05.2014 at about 8.45 p.m., in front of ARTO Office, K.G.F, Bangarpet Taluk, Kolar District within the jurisdiction of Oorgaum police station on account of the rash and negligent driving of KSRTC bus bearing

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registration No.KA-57-F-862 by its driver as alleged?

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3. Whether petitioners are entitled for compensation? If so, what amount and from whom?

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4. What order or award?

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Accordingly, issue No.1 was answered in the

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Affirmative, issue No.2 as Partly Affirmative, Issue No.3 in the Negative and finally dismissed the claim petition.

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Being aggrieved, the claimants have

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preferred the present appeal.

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claimants/appellants argued that the Tribunal grossly erred in dismissing the claim petition disbelieving the evidence of PW2, an eye witness to the incident. Nonexamination of Sri.Satish Kumar who gave information to the appellant No.1 about the accident is considered to be fatal to the case, much against the material

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evidence placed on record. Though the Tribunal has arrived at a conclusion that the deceased died due to

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the accident and injuries sustained but failed to appreciate the involvement of the bus for causing the accident. Learned counsel submitted that the postmortem report at Ex.P8 would indicate that the deceased died due to crush injury, such crush injury would not have been sustained by self-fall from the two wheeler. Accordingly, sought for setting aside the impugned judgment and decree, allowing the appeal.

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In support of his contention, learned counsel

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has relied upon the decision of the Hon'ble Apex Court in the case of Dulcina Fernandes and Others V/s.

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Joaquim Xavier Cruz and Another [(2013) 10 SCC

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646] .

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Learned counsel for the Corporation submitted that the FSL report – Ex.P11 would be the clinching evidence to decide the negligence aspect and

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the involvement of the bus in the accident in question. PW2 has deposed that on hearing the sound, he came to know about the accident in question. The police records and the IMV report would indicate that the bus was not involved in the accident. The Tribunal on evaluation of the evidence, has rightly dismissed the petition and as such no interference of this Court is warranted.

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submissions of the learned counsel for the parties and perused the material on record.

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The records would reveal that the

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information about the accident was given to the complainant/first appellant by the resident of the same locality by name Sri.Satish Kumar. But in the charge sheet, the said witness – CW6 is cited as a circumstantial witness. The case of the claimants at the first instance as per the complaint was that on 05.05.2014, the deceased went out of the house to

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BEML Nagar on his motorcycle bearing registration No.KA-08-K-5572 at about 05.00 p.m. but did not return even after 09.00 p.m. At that time, Sri.Satish Kumar called the first appellant over phone and stated that R.Balachander had met with the road traffic accident in front of ARTO office, KGF and he will be shifted to KGF General hospital for treatment. Thereafter, immediately the first appellant rushed to the KGF General Hospital, on enquiry, he was informed that due to the rash and negligent driving, the deceased lost the balance and fell down along with the vehicle due to which he sustained fatal injuries and was shifted to the Robertsonpet General hospital by Sri.Satish Kumar, a resident of his locality whereby doctor after conducting examination has declared him as dead. It is categorically stated in the complaint that the deceased died due to the fatal accidental injuries sustained by him due to his own negligence.

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Subsequently, in the statement recorded on

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16.09.2014 under Section 161[3] of Cr.P.C [Ex.P5], it was stated by the appellant No.1 that after the last rituals of his son, one day, when he was traveling in the bus to Bangarpet, one of the co-passenger was talking about the accident that occurred on 05.05.2014 at about 08.45 p.m., in front of the ARTO office. On enquiry made by him with the said co-passenger - PW2, it was discerned that the negligence of the driver of the bus was the cause for the accident. This statement is inconsistent with the complaint filed by the appellant No.1 himself on 05.05.2014.

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It is thus evident that initially the case was registered as the self-fall accident and subsequently based on the alleged statement of PW2, offending vehicle was implicated. The Investigation Officer who was examined as PW4 has deposed that as per the complaint averments, the accident in question was a

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self-fall accident. On the direction issued by SP, KGF for further investigation on 09.05.2014, investigation was conducted and both the vehicles involved in the accident were taken into possession on 10.05.2014 by conducting seizure mahazar between 1.15 p.m., to 2.00 p.m., at that time, he has collected the colour/paint of both the vehicles from the damaged area and sent the sample of the same colour/paint for FSL examination. FSL examination report was received on 13.09.2014 and the same revealed that the colour/paint of both the vehicles were tallying with each other and therefore he came to the conclusion that the offending vehicle has dashed to the motorcycle resulting in the accident in question accordingly, charge sheet was filed against the driver of the offending vehicle – KSRTC bus.

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14. In Dulcina Fernandes and Others supra,

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the Hon'ble Apex Court while considering the claim in the context of a Head Constable reaching the place of

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occurrence within 15 minutes stating that R-1 driver of

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pick-up van, being driven rashly and negligently hit scooter being ridden by deceased and pillion rider, causing death of the deceased and that the rider of the scooter driving scooter under the influence of alcohol, has considered the effect of pleadings and the principles applicable to claim petition under the Motor Vehicles Act. In the facts and circumstances of the said case, it has been held that the accident had occurred due to the rash and negligent driving of the pick-up van and not by the deceased. Having regard to the facts of the case, the

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judgment of Dulcina Fernandes and Others supra, would be of no assistance to the claimants/appellants.

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It is significant to note that as per IMV report at Ex.P4, the motorcycle got damaged with scratches to head light and visor on left side; damages to front left side indicator cover; scratches to left side handle bar and brake lever; damages to left side crash

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guard and mirror scratches to rear saree guard which

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as bent etc., but no damages to the bus.

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Referring to the FSL report at Ex.P11, the claimants have made an attempt to establish that both the vehicles contacted with each other but the same would not be the conclusive proof for negligence. Even the evidence of PW2 does not corroborate the evidence of the PW1 inasmuch as the negligence of the driver of the offending vehicle – bus. He has categorically stated that he came to know about the accident when he heard some sound which indicates that he has not witnessed the accident in question. The spot mahazar at Ex.P2 would indicate the brake mark of the motorcycle to the length of 63 feet from which it could be inferred that the deceased was riding the motorcycle in a high speed.

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It is trite that FIR is not the conclusive proof for negligence but the whole burden lies on the

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claimants to establish the negligence of the driver of the offending vehicle by producing the cogent and corroborative evidence. As discussed above, the entire case has been taken a twist based on the statement of PW2 that too the first claimant/appellant coming to know about the same on meeting PW2 while traveling in the bus to Bangarpet. No particular evidence like ticket, bus number, date of travel are produced to show that the first claimant/appellant met PW2 as narrated by

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him. There being material inconsistencies in the evidence of the claimants even analyzing the said evidence on the touchstone of preponderance of probabilities, no negligence could be fixed on the driver of the offending vehicle for the occurrence of the accident.

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