Allowed

Sri a S Guruprasad v. the Managing Director

Karnataka HC10 Oct 2022MFA/765/2021

Case brief

AI extract

What is this about?

Appeal against Motor Accidents Tribunal dismissing compensation claim due to non-wearing of headgear. High Court held headgear violation is not a ground to deny compensation if driver's negligence caused the accident. Appeal allowed and matter remanded.

What did the court decide?

Impugned judgment and award set aside; matter remanded to Tribunal for fresh consideration; no order as to costs.

Sri a S Guruprasad Vs the Managing Director — Motor Accident Claims | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 10^TH DAY OF OCTOBER, 2022

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PRESENT

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THE HON’BLE MR. JUSTICE B. VEERAPPA

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AND

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THE HON’BLE MRS. JUSTICE K.S. HEMALEKHA

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MISCELLANEOUS FIRST APPEAL No.765/2021 (MV-I)

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BETWEEN:

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SRI A S GURUPRASAD S/O A S SOMASHEKARAIAH AGED ABOUT 46 YEARS R/AT WARD NO.41, ARCHAKARAHALLI RAMANAGARA TOWN AND DISTRICT

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...APPELLANT

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(BY SRI.RAJU S, ADVOCATE)

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AND:

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THE MANAGING DIRECTOR KARNATAKA STATE ROAD TRANSPORT CORPORATION KENGAL HANUMANTHAIAH ROAD BANGALORE-27

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…RESPONDENT

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(BY SMT.LALITHA.P.MANIHAL, ADVOCATE)

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THIS MFA IS FILED U/S.173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DT.20.03.2020 PASSED IN MVC NO.427/2016 ON THE FILE OF THE III ADDITIONAL DISTRICT AND SESSIONS JUDGE AND MEMBER, ADDITIONAL MACT, RAMANAGARA, DISMISSING THE PETITION FOR

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COMPENSATION.

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THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR HEARING THIS DAY, K.S.HEMALEKHA J. , DELIVERED THE FOLLOWING:

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J U D G M E N T

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The present appeal is preferred by the

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injured/claimant assailing the judgment and award dated 20/03/2020, in MVC. No.427/2016 on the file of the Additional Motor Accidents Claims Tribunal and III Additional District and Sessions Judge, Ramanagar, (hereinafter referred to as “the Tribunal” for the sake of convenience) whereby, the claim petition was dismissed by the Tribunal.

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The brief facts of the case are that the injured/claimant filed the claim petition on account of injuries suffered by him in a road traffic accident that occurred on 14.06.2016 at around 9.00 a.m., when the injured/claimant was proceeding on his motorcycle bearing registration No.KA-42-J-8791 towards

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Bengaluru-Mysuru, near KSRTC bus stand, the motor bike of the injured/claimant collided with the KSRTC bus bearing registration No.KA-11-F-0318, which was proceeding from Mysuru to Bengaluru and took sudden turn, so as to enter into the KSRTC bus stand. The injured/claimant contended that due to the impact of the accident, the injured/claimant is unable to discharge his regular work as he was doing earlier and that prior to the accident, he was hale and healthy and the claimant suffered grievous injuries and has incurred expenses of Rs.12,00,000/- and sought for compensation.

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Pursuant to the notice issued by the Tribunal, KSRTC (hereinafter referred to as ‘the Corporation) appeared and filed objections disputing the averments made in the claim petition and stated that the accident took place on account of negligent riding of the rider of the motorcycle and that the

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injured/claimant was riding the motorcycle in a rash

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and negligent manner, without observing the traffic rules and according to the Corporation, a false case has been filed against the driver of the KSRTC bus and sought to dismiss the claim petition.

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The Tribunal, on the basis of the pleadings

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of the parties, framed the following issues:-

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“1. Whether the petitioner proves that on 14.06.2016 at about 9.00 p.m, when he was going in motor cycle bearing Reg.No.KA-42-J8791 from Benaka Bajar Road towards BengaluruMysore, at the same time driver of the KSRTC bus bearing Reg.No.KA-11-F-0318 driven by its driver to go to Ramanagara Bus stop, from BengaluruMysore Road drove the bus in rash and negligent manner and dashed the petitioners vehicle, as a result of which the petitioner fell down and suffered grievous injuries as alleged?

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Whether the petitioner is entitled for compensation? If so, how much?”

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In order to substantiate the contention of

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the claimant, examined himself as PW.1 and got marked documents at Exs.P.1 to P.23 and also two

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witness have been examined as PW.2 and PW.3. On the other hand, the Corporation examined its driver as RW.1 however, no documents were marked on behalf of the respondent.

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6. Considering both the oral and documentary

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evidence on record, the Tribunal held that the accident occurred due to the collision of the motorbike and the bus, near KSRTC bus stand and due to the accident, injured/claimant suffered grievous injuries, however, dismissed the claim petition holding that the injured/claimant was not wearing head gear and nonwearing of head gear has resulted in head injury to the injured/claimant.

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Being aggrieved by the dismissal of the claim petition, the present appeal preferred by the injured/claimant.

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Heard the learned counsel for the parties to

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the lis .

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Sri Raju .S, learned counsel appearing for

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the injured/claimant would contend that the dismissal of the claim petition by the Tribunal on the ground that the injured/claimant was not wearing head gear could not be attributed as a negligence on the part of the rider of the motorbike and that at most would be treated as a penalty and not otherwise. According to the learned counsel for the appellant/claimant, the cause of the accident was not due to the absence of

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the head gear, but it was due to the rash and negligent driving of the driver of the KSRTC bus and would contend that the non-wearing of the head gear would not absolve the liability of the Corporation to pay the compensation amount and as such, sought to allow the appeal.

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Per contra, Smt. Lalitha P. Manihal, learned counsel for the Corporation would contend that the impugned judgment and award passed of the Tribunal is just and proper and does not call for any interference. It is contended that even if the Tribunal held that the accident was due to rash and negligent driving of the KSRTC bus by its driver, some negligence has to be attributed to the claimant as the injuries suffered by the claimant is the head injury and this would have been avoided, if the injured/claimant had worn the headgear. According to the learned counsel, non-wearing of the headgear led to injuries to the head, which cannot be cured at any cost and according to the learned counsel, the Tribunal was right in dismissing the claim petition of the claimant on the ground of non-wearing the headgear and sought to dismiss the appeal.

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Having heard learned counsel for the

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parties, the only point that arises for our consideration

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in the present appeal is:

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“Whether the injured/claimant has made out a case for interference of the judgment and award of the Tribunal, in the facts and circumstances of the case?”

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We have considered the rival contentions of

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the parties and perused the material on record carefully.

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The undisputed fact is that the accident occurred due to the collision of the motorbike, in which the injured/claimant was proceeding and the bus bearing registration No.KA-11-F-0318, near KSRTC bus stand and due to the accident, the claimant has suffered grievous injuries as is evident from Ex.P.5-Wound Certificate. It is not in dispute that the charge-sheet has been leveled against the

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driver of the KSRTC bus as is evident from Ex.P.1-FIR, Ex.P.2-complaint and Ex.P.3-Charge-Sheet.

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The Tribunal has framed issue No.1 that “ whether the petitioner proves that the accident occurred due to the rash and negligent driving of the driver of the KSRTC bus”. The burden was upon the claimant to prove that there was rash and negligent driving of the driver of the bus. In order to substantiate the same, claimant examined himself as PW.1 and got marked documents as Exs.P.1 to P.23. It is evident from Ex.P.4-the crime details form and the spot mahazar that the accident occurred due to the rash and negligent driving of the driver of the KSRTC bus and evidently, the charge-sheet has been leveled against the driver of the bus. The Tribunal went on an assumption that non-wearing of head gear has resulted in head injury and thereby, dismissed the claim petition and held that the dispute with regard to

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cause of the accident and the negligence contributed to it, is the actual dispute between the parties and the Tribunal answered issue No.1 in the affirmative affirming the occurrence of the accident and answered issue No.2 against the claimant holding that the claimant is not entitled for the compensation in view of the fact that the claimant was not wearing the head gear. Even if this reasoning of the Tribunal is accepted, it is relevant to note that Section of 129 of Motor vehicles Act, which reads as under:

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“129. Wearing of protective headgear.—Every person driving or riding (otherwise than in a side car, on a motor cycle of any class or description) shall, while in a public place, wear [protective headgear conforming to the standards of Bureau of Indian Standards]:Provided that the provisions of this section shall not apply to a person who is a Sikh, if he is, while driving or riding on the motor cycle, in a public place, wearing a turban:

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Provided further that the State Government may, by such rules, provide for such exceptions as it may think fit.”

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A careful perusal of the said provision, it

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clearly depicts that Every person driving or riding (otherwise than in a side car, on a motor cycle of any class or description) shall, while in a public place, wear [protective headgear conforming to the standards of Bureau of Indian Standards], provided that the provisions of this section shall not apply to a person who is a Sikh, if he is, while driving or riding on the motor cycle, in a public place, wearing a turban: Provided further that the State Government may, by such rules, provide for such exceptions as it may think fit.

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As per explanation of Section 129 of the MV Act ”Protective headgear” means a headgear which, (a) by virtue of its shape, material and

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construction, could reasonably be expected to afford to the person driving or riding on a motor cycle a degree of protection from injury in the event of an accident; and

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(b) is securely fastened to the head of the wearer by means of straps or other fastenings provided on the headgear is not a ground to deny the compensation. At the most, it can be only a penalty that can be imposed for violation of this mandatory provision by levying a fine of Rs.1,000/and/or licence disqualification for a period of three months, but same cannot be a ground to deny the compensation to the victim or the legal representatives of the claimants who are otherwise, entitled for compensation under the Act.

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In the present case, the rider of the motorcycle was proceeding in his motor bike and the material on records show that the accident occurred at

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the turning point towards bus stand, when the bus suddenly took a turn to enter into the KSRTC bus stand. Non-wearing of headgear is only a consequence and the accident occurred due to the negligence on the part of the driver of the KSRTC bus cannot be disputed. The Tribunal while answering issue No.1 held that the claimant has proved that the accident took place and due to which, the claimant has suffered grievous injuries, however, finding regarding the rash and negligent driving of the driver of the bus has not been answered by the Tribunal. Under such circumstances, the Tribunal could not have rejected the claim petition on the ground that the claimant was not wearing a head gear at the time of the accident, though it is evident from material documents Ex.P.1 to P.3, invariably shows the rash and negligence on the part of the driver of the KSRTC bus and the Tribunal has gone only on the aspect of non-wearing

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of headgear, which caused injuries to the claimant and the rash and negligence part on which the issue has been framed by the Tribunal has been answered.

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We find that this exercise has not been done by the Tribunal. Under such circumstances, we find no reason as to why the Tribunal has denied compensation to the injured/claimant while answering issue No.1 in the affirmative regarding the occurrence of the accident, but not answering the rash and negligence on the part of the driver of the bus when the material on record was sufficient to establish that there was rash and negligence on the part of the driver of the bus.

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In light of this, w`e are of the considered view that the appeal succeeds and the matter is relegated to the Tribunal for reconsideration afresh in accordance with law. Accordingly, we answer the

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point framed by us in the affirmative holding that the matter needs to be reconsidered by the Tribunal.

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In the result, we pass the following:

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ORDER

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(i) The appeal filed by the injured/claimant is allowed and remanded for fresh consideration and the impugned judgment and award dated 20.03.2020 in MVC.No.427/2016 on the file of the Tribunal is hereby set aside and the matter is relegated to the Tribunal for reconsideration afresh in accordance with law.

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(ii) Parties are directed to be present before the Tribunal on 14.11.2022 without expecting any notice. Trial Court record to be transmitted forthwith.

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(iii) Parties are at liberty to produce additional

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evidence and adduce additional documents

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as required in accordance with law.

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No order as to costs.

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Sd/JUDGE

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Sd/JUDGE

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MBM

Sri a S Guruprasad v. the Managing Director

Case brief

What is this about?

What did the court decide?

Sri a S Guruprasad v. the Managing Director

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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