Allowed

National Insurance Co. Ltd. v. Sri Thimmegowda @ Anil Kumar

Karnataka HC18 Aug 2022MFA/8060/2015

Case brief

AI extract

What is this about?

This Full Bench appeal challenged a Motor Accident Claim Tribunal award. The court examined liability when a passenger traveled on the bus roof top with the driver's consent. The judgment fixed contributory negligence at 85:15 in favor of the bus operators and left the compensation modified accordingly, upholding the 8% interest rate.

What did the court decide?

The appeal allowed in part; judgment and award modified to attribute 85% negligence to the driver/conductor and 15% to the claimant; 85% of compensation awarded.

National Insurance Co. Ltd. Vs Sri Thimmegowda @… — Motor Accident Claims | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18^TH DAY OF AUGUST, 2022

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BEFORE

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THE HON’BLE MR.JUSTICE HANCHATE SANJEEVKUMAR

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M.F.A.No.8060/2015 (MV-I)

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BETWEEN:

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NATIONAL INSURANCE CO., LTD., REGIONAL OFFICE NO.144, SUBHARAM COMPLEX M.G.ROAD, BANGALORE - 560 001 REP. BY ITS ADMN. OFFICER MR. E.JAYASHEELAN

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(BY SRI ANUP SEETHARAM RAO, ADVOCATE FOR SRI SEETHARAMA RAO B.C. [VC])

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AND:

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SRI THIMMEGOWDA @ ANIL KUMAR AGED ABOUT 23 YEARS S/O. SRIKANTEGOWDA RESIDING AT THORE BOMMANAHALLI C.A.KERE HOBLI, MADDURU TALUK MANDYA DISTRICT

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WORKING AT: NO.48/43, 6^TH MAIN ROAD JNANAJOTHINAGAR, JNANABHARATHI BANGALORE - 560 056.

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SRI D. NAGENDRA, MAJOR IN AGE S/O. LINGAIAH NO.252, 2^ND CROSS SWARNA SANDRA

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MANDYA DISTRICT MANDYA - 571 401 (OWNER OF BUS NO.KA.20/A-3861)

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… RESPONDENTS (BY SRI SHRIPAD V. SHASTRI, ADV. FOR C/R1; R2 SERVED)

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THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:12.08.2015 PASSED IN MVC No.1493/2013 ON THE FILE OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL COURT OF SMALL CAUSES AT BENGALURU (SCCH:15), AWARDING THE COMPENSATION OF RS.6,46,000/- WITH INTEREST AT 8% P.A. FROM THE DATE OF PETITION TILL THE DEPOSIT.

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THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THROUGH VIDEO CONFERENCE THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal is filed by the Insurance Company

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under Section 173(1) of Motor Vehicles Act, 1988 (hereinafter referred to as 'MV Act' for short), challenging the judgment and award passed in MVC No.1493/2013 dated 12.08.2015 by the XIII Addl. Small Cause Judge & Member, MACT, Bengaluru, questioning the liability fixed on the Insurance Company/appellant.

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The brief facts of the case are as under:

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The claim petition came to be filed under Section 166 of the MV Act in MVC No.1493/2013, contending that on 26.09.2012 at about 10.30 p.m., the claimant by name Thimmegowda @ Anil Kumar was traveling in the bus bearing registration No.KA-20 A-3861. The said bus was being driven by its driver in a rash and negligent manner. When the bus reached near K.M.Doddi - Halaguru main road near Karakahalli Basagowda's land, the driver of the bus has applied brake suddenly, as a result of which, the claimant along with few persons fell down and sustained severe injuries all over the body. Therefore, he has preferred a claim petition in MVC No.1493/2013, seeking compensation under Section 166 of the MV Act.

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The Tribunal has awarded compensation of Rs.6,46,000/- along with interest @ 8% p.a., holding that both the owner of the bus and Insurance Company are liable to pay the compensation and accordingly,

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directed the appellant/Insurance Company to indemnify the owner of the bus. Therefore, questioning the liability, the appellant/Insurance Company has preferred the present appeal.

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Learned counsel for the appellant/Insurance Company submitted that there is delay in lodging the complaint before the Police which vitiates the proceedings in the present case and the same is not accepted.

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Further, learned counsel for the appellant / Insurance Company submitted that the claimant was traveling on the roof top of the bus bearing No.KA-20 A-3861. Therefore, the risk of the passengers traveling on the roof top of the bus did not cover as per Section 147 of MV Act and also it is not covered under the Insurance Policy issued by the appellant/Insurance Company. Therefore, the reasoning assigned by the Tribunal to attribute contributory negligence on the part

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of the driver and conductor of the bus is not correct, being perverse approach.

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Further, submitted that the claimant is entirely responsible for having sustained the injuries since he was traveling on the roof top of the bus and the claimant has fully known the fact that traveling on the roof top of the bus is dangerous and also not permitted as per law. Therefore, the claimant himself has invited the risk. Therefore, the entire negligence is to be attributed on the part of the claimant.

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Further, submitted that even in the case, the driver and conductor of the bus were negligent but that is only for minimal to say that the driver and conductor are responsible only to the extent of 25% but remaining 75% negligence is to be attributed on the part of the claimant. Therefore, the Tribunal is not correct by holding the driver and conductor of the bus as solely responsible for cause of accident.

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8. Learned counsel for the appellant/Insurance

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Company has relied upon the following judgments:

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North-East Karnataka Road Transport Corporation v. Smt. Vijayalaxmi & Ors. reported in 2012(1) AIR Kar R 606 Full Bench.

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Smt. Shivleela and Others vs. Karnataka State Road Transport Corporation reported in ILR 2003 KAR 3602.

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On the other hand, learned counsel for respondent No.1/claimant submitted that even though the claimant has traveled on the roof top of the bus, he was advised by the conductor of the bus to travel on the roof top of the bus. Therefore, submitted that the driver and conductor were responsible for the accident. Further, submitted that just because there is delay in lodging the complaint, the claim petition cannot be brushed aside. There may be various reasons in not lodging the complaint promptly as primary attention of the injured is to get proper medical treatment to the injuries than lodging a complaint. Therefore, under these circumstances, there might have been delay in lodging

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the complaint but that alone cannot be made as ground to reject the claim petition and this is well considered by the Tribunal. Therefore, prays to dismiss the appeal.

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Further, learned counsel places reliance upon the following judgments:

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Managing Director, K.S.R.T.C. and another vs. Smt. Sunanda and another reported in 2004 ACJ 889.

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Smt. Meltina Shabong v. M/s. Oriental Insurance Company Ltd., Shillong & Ors. reported in 2014 ACJ 813.

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New India Assurance Co., Bangalore v. Jayashree alias Laxmi & Ors. reported in AIR 2009 (NOC) 2243 (KAR.); 2009(4) AIR KANT HCR 193.

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Oriental Insurance Co. Ltd. v. Premlata Shukla and Ors. reported in 2007 ARI SCW 3591.

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Having heard the arguments on both sides

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and perused the records, the point that would arise for consideration is as follows:

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Whether, under the facts and circumstances enunciated in the case just because the claimants have traveled on the roof

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top of the bus and bus met with an accident on 26.09.2012 at about 10.30 p.m., on K.M.DoddiHalaguru Main Road near Karakahalli Basagowda's land, the driver and conductor of the bus bearing No.KA-20 A-3861 are solely responsible?

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It is the petition averments made by the

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claimant that the claim petition was filed before the Tribunal as he met with an accident while traveling in the bus due to rash and negligent driving of the bus but the claimant had not stated that he was traveling on the roof top of the bus. But upon perusing Ex.P1A which are the complaint and FIR and Ex.P5-Charge sheet, it reveals that the claimant and others have fallen from the bus and sustained injuries but in the cross examination, PW.1 admitted that though they had booked the bus to take people to attend the marriage function and since there were more persons in the bus, the claimant and some other persons about 4-5 in number have sat on the roof top of the bus as per the request of the owner and

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conductor. Therefore, it is proved from PW.1 that the claimant and others have traveled on the roof top of the bus as on the date and time of the accident. Ex.P5 - Charge sheet which is filed after investigation, reveals that the claimant and other persons, who were traveling on the roof top of the bus have fallen from the roof top of the bus and sustained injuries due to applying sudden brake of the bus by its driver. Therefore, it is proved that the claimant had sustained injuries while he was traveling on the roof top of the bus but the question to be considered here is, "whether the owner, driver and conductor of the bus were also negligible in allowing the claimant to travel on the roof top of the bus or the claimant is solely responsible for cause of accident"?.

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Here contention of the Insurance Company is that the claimant had voluntarily traveled on the roof top of the bus. Therefore, owner and conductor of the bus were not negligible. Hence, fastening the liability on the Insurance Company is not correct.

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But, at the same time, it is the contention of

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the claimant that the owner, driver and conductor have requested the claimant and some other persons to travel on the roof top of the bus since there were more persons inside the bus and there was no space to sit or stand in the bus. Therefore, they were constrained to travel on the roof top of the bus and for which, there was consent by the driver and conductor of the bus. Therefore, it is

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the contention that the claimant is not responsible for the accident but, the bus driver has suddenly applied the brake and due which, the claimant had sustained injuries in the said accident.

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Upon considering these factors, the evidence

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on record discloses that the bus was not used as the stage carriage bus but was used as contract carriage bus. For the reason that the bus was hired for taking people to attend the marriage function. Therefore, while returning after attending the marriage, the claimant and

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other 4-5 persons have traveled on the roof top of the bus. Therefore, while considering all the aspects, the question to be posed at this juncture is that whether the driver and conductor of the bus have permitted the claimant to travel on the roof top of the bus or, under what circumstances, the claimant was compelled to travel on the roof top of the bus. This decides the rash and negligent aspect on the part of the driver and conductor of the bus on one hand and claimant on the other hand.

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In this regard, the judgment relied upon by the learned counsel for the Insurance Company in the case of North-East Karnataka Road Transport Corporation v. Smt. Vijayalaxmi & Ors. reported in 2012(1) AIR Kar R 606 Full Bench, held that no fixed percentage of contributory negligence can be attributed and it can be decided on the evidence adduced considering the facts of each case. Therefore, there is no fixed formula can be fixed regarding fixing of the

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percentage of contributory negligence between the driver and conductor of the bus and the claimant and that is depending upon the facts and circumstances of each case.

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In another judgment in the case of Smt. Shivleela and Others vs. Karnataka State Road Transport Corporation reported in ILR 2003 KAR 3602 , it was held that the deceased had not traveled on the roof top of the bus stealthily; that means, without knowledge of the driver/conductor of the bus and therefore, the driver and conductor knew very well that the deceased climbed roof top of the bus and was traveling. Therefore, it was held that the percentage of negligence contributed by the deceased and driver and conductor of the bus is in the ratio of 50:50.

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Whereas, learned counsel for the respondent/ claimant relied on the judgment in the case of

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Managing Director, K.S.R.T.C. and another vs. Smt.

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Sunanda and another reported in 2004 ACJ 889 , it was held that the passenger was traveling on the top of the bus along with his goods, held as died when the driver applied brake suddenly and it was also held that there is no negligence on the part of the deceased. Further, in the judgment of this Court in the case of New India Assurance Co., Bangalore v. Jayashree alias Laxmi & Ors. reported in AIR 2009 (NOC) 2243 (KAR.); 2009(4) AIR KANT HCR 193 , it was evidenced that no attempt was made by the driver or the person in-charge of vehicle to stop passengers from traveling on the roof top of the bus. Therefore, the Insurance Company was held liable to pay the compensation. Further, it is stated that if the persons are traveling on the roof top of the bus as per Section 123 of MV Act, which attracts penal provision but that cannot be alone to make ground to exonerate the Insurance Company because the driver and conductor knew very well that the deceased was traveling on the roof top of

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the bus and there was no attempt made by them to stop the deceased to travel on the roof top of the bus. Therefore, it was held that driver and conductor were rash and negligent in causing the accident. Therefore, the entire negligence attributed on the part of the driver and conductor of the bus. Under these circumstances, it was held that there is no contributory negligence by the deceased.

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Considering the principles of law laid down in the above said judgments, the evidence and facts are considered in the present case that the bus was taken on hire basis for a marriage function. While bus was taken on hire basis for a marriage function, it means the bus was used for contract purpose but not as a stage carriage bus. RW.3 is the Administrative Officer of appellant/Insurance Company and it is his evidence that the claimant had traveled on the roof top of the bus and sustained injuries. For which, the entire negligence is on the part of the claimant. But considering the evidence on

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record disclosed above, it is found that the claimant had not traveled on the roof top of the bus without knowledge of driver and conductor of the bus.

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It is not disputed fact that the claimant had traveled on the roof top of the bus but the question to be considered here is under what circumstances, the claimant was constrained to travel on the roof top of the bus whether on his own willingness, at his own risk and whether the claimant had traveled on the roof top of the bus was within the knowledge of driver and conductor of the bus was, is to be considered.

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The respondents have not attempted to

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summon either driver or conductor of the bus to examine before the Court that under what circumstances, the claimant had traveled on the roof top of the bus i.e., whether on his own risk or it was within the knowledge of the conductor or driver of the bus but Ex.P5 is the charge sheet resulting in to initiation of the criminal

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proceedings based on the complaint that it is the opinion of the Police Investigation Officer while filing charge sheet that since the bus was hired on contract basis for taking persons to a marriage function and since there was no space inside the bus, the claimant was constrained to travel on the roof top of the bus. Therefore, it cannot be said that the travel made by the claimant on the roof top of the bus was not within the knowledge of the driver and conductor of the bus. Even though there may be violation of Section 123 of MV Act, but for such violation, Criminal action is invited but that cannot be made as a ground to reject the claim petition or to attribute the entire negligence on the part of the claimant in case of injury or the deceased in case of death. But considering the entire case on its true perspective, weighing and sifting the evidence on record on its preponderance of probabilities that the bus was not used as a stage carriage bus but was used for contract basis to take the bus to a marriage function.

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Therefore, certainly the driver and conductor of the bus were having knowledge under what circumstances, the claimant and other persons have traveled on the roof top of the bus. It cannot be said that the traveling of the claimant on the roof top of the bus is not within their knowledge. Under these circumstances, the driver and conductor of the bus would have cautioned the claimant or prevented the claimant to travel on the roof top of the bus then the accident could have been avoided. Therefore, it can safely be held that the driver and conductor of the bus have consented the claimant to travel on the roof top of the bus. Therefore, under these circumstances, the major portion of the contributory negligence is to be attributed on the part of the driver and conductor of the bus.

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But, at the same time, the claimant was working as a machine operator and even though he was permitted to travel on the roof top of the bus, by taking a risk and knowing the fact that traveling on the roof top

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is wrong, whatever circumstances or compulsions may

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be upon the claimant to travel on the roof top of the bus, for this also, the accident could have been avoided if the claimant and other 4-5 people had refused to travel on the roof top of the bus. Therefore, under these circumstances, some contributory negligence is to be attributed on the part of the claimant also as held by the full bench of this Court in North-East Karnataka Road Transport Corporation's case stated supra, no contributory negligence on fixed percentage can be attributed just because passengers traveled on the roof top of the bus and met with an accident but that percentage of contributory negligence is to be decided on each facts and circumstances involved in the case.

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Therefore, considering the facts and

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circumstances involved in the case and weighing and sifting evidences adduced in the present case on its preponderance of probabilities, the claimant had also made some negligence while traveling on the roof top of

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the bus. It is not the case of the claimant that the bus was used for stage carriage or claimant was traveling to go to his native place where buses are not sufficient to their route, therefore, compelled to travel on the roof of the bus but facts and circumstances are different from the above analogy that the bus was used for the contract basis to take the bus for attending marriage functions and therefore, there is no other vehicles available, in case, the bus is full of persons. Therefore, if the bus is full of inmates and there was no space for sitting or standing, then the claimant and others could have been traveled to return to their village by any other vehicle without making travel on the roof top of the bus. If there is no vehicle on that route available then the thing would have been different. Therefore, to some extent, the claimant has also taken risk on his own to travel on the roof top of the bus. There was every possibility on the part of the claimant to refuse to travel on the roof top of the bus and he could have traveled by any other vehicle

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to go to his native place. In this case, the offending vehicle was filled with people at a maximum number without there being any space for sitting or standing. Therefore, in this regard, there is also some contributory negligence on the part of the claimant, but not as large as the negligence on the part of the driver and conductor of the bus. Here upon considering the weightage of duty attached to the claimant on one hand and driver and conductor of the bus on the other hand, the duty and responsibility of the conductor and driver of the bus is more onerous compared to claimant. The driver and conductor of the bus were very well positioned to stop or prevent the claimant and other people from travelling on the roof top of the bus because the driver and conductor were having control over the bus and, ultimately, the driver had taken a risk in driving the bus, allowing the claimant and other people to travel on the roof top of the bus. Also, in the cross examination of PW.1, it is revealed that even though during the course of

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suggestion, but upon considering the preponderance of probabilities, the owner has also consented to the claimant and other persons to travel on the roof top of the bus. Therefore, major contributory negligence is to be attributed on the part of the driver, conductor, and owner of the bus on the one hand, and minor contributory negligence is to be attributed on the part of the claimant.

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Therefore, considering the entire scenario of the accident, while the case is considered on its preponderance of probabilities, it can be safely held that the driver and conductor of the bus have contributory negligence to the extent of 85% and 15% contributory negligence is on the part of the claimant. Therefore, the contributory negligence is held as 85:15 between the driver and conductor of the bus on the one hand and the claimant on the other hand, respectively.

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Further, learned counsel for the appellant/ Insurance Company submitted that the Tribunal has awarded interest @ 8% p.a. and requested to reduce the same to 6% p.a.

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But considering the entire case on its true perspective, it is proved that the claimant had made expenditure of Rs.4,86,000/towards "medical expenditure and hospitalization charges". The claimant has not preferred any appeal seeking enhancement of compensation and it is assumed that the claimant must have satisfied the award made by the Tribunal even though there are chances of enhancement. Therefore, considering all these factors and magnitude of the amount spent for medical expenses, the rate of interest awarded by the Tribunal is found to be proper and correct, which needs no modification. Also, awarding of interest at 6% is always not a straight jacket formula but that should be in order to maintain uniformity in awarding compensation based on facts and

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circumstances in each case. Awarding of interest @ 8% p.a. perse is not illegal and it is permitted by the Apex Court in catena of decisions. Therefore, I do not find any ground to reduce the rate of interest as submitted by the learned counsel for the appellant/Insurance Company. Therefore, the rate of interest as held by the Tribunal is kept intact. Therefore, in the result, I proceed to following:

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ORDER

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i. The appeal is allowed in part.

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ii. The judgment and award passed by the Tribunal in MVC No.1493/2013 is hereby modified to the extent that contributory negligence is attributed in the ratio of 85:15 between the driver and conductor of the bus on one hand and claimant on the other hand respectively. Therefore, the claimant is entitled for 85% of the compensation amount what is determined by the Tribunal.

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iii. Other observations made by the Tribunal are not modified.

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