Allowed

Prema S/O. Srinivas Naik v. M Shivanna S/O. Ninjappa

Karnataka HC13 Jun 2024MFA/20031/2012

Case brief

AI extract

What is this about?

The High Court allowed the appeal against the Tribunal's dismissal of a motor vehicle accident compensation claim. The Court found the Tribunal failed to assess contributory negligence or quantum of compensation. The matter was remanded to the Tribunal to frame issues on contributory negligence and assess damages afresh based on specific evidence regarding the bus's position and driver's actions.

What did the court decide?

The appeal is allowed; the impugned judgment is set aside; the matter is remanded to the Tribunal to frame issues on contributory negligence, permit additional evidence, and award compensation.

Prema S/O. Srinivas Naik Vs M Shivanna S/O. Ninjappa — Motor Accident Claims | Karnataka HC (2024)

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NC: 2024:KHC-D:7972 MFA No. 20031 of 2012

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 13^TH DAY OF JUNE, 2024

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BEFORE

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THE HON'BLE MR JUSTICE T. G. SHIVASHANKARE GOWDA

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MISCELLANEOUS FIRST APPEAL NO. 20031 OF 2012

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(MV-D)

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BETWEEN:

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SMT. PREMA W/O. SRINIVAS NAIK AGE: 29 YEARS, OCC: HOUSEHOLD WORK, R/O: KOTABAGI COMPLEX, NEAR RAMESH BHAVAN, HUBLI, DIST: DHARWAD.

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…APPELLANT

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(BY SRI. HANAMANT R. LATUR, ADVOCATE)

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AND:

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M. SHIVANNA S/O. NINJAPPA C/O. 2^ND DEPOT, K.S.R.T.C. BANGALORE, AGE: 40 YEARS, OCC: DRIVER R/O: MACH PANDYANAHALLI, TQ: HOSAKOTE, DIST: BANGALORE.

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THE MANAGING DIRECTOR K.S.R.T.C. BANGALORE.

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Digitally signed by GIRIJA A BYAHATTI Location: HIGH COURT OF KARNATAKA

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THE MANAGER,

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SELF INSURANCE FUND, K.S.R.T.C. SHANTI NAGAR, DOUBLE ROAD, BANGALORE.

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…RESPONDENTS

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(BY SRI. S.C. BHUTI, ADVOCATE FOR R2 AND R3; R1-NOTICE DISPENSED WITH)

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THIS MISCELLANEOUS FIRST APPEAL FILED U/SEC.173(1) OF MV ACT, PRAYING TO SET ASIDE THE JUDGMENT AND AWARD PASSED BY THE FIRST ADDL. SENIOR CIVIL JUDGE AND ADLL. M.A.C.T. HUBLI IN MVC.NO.243/2009 DATED 11/02/2011 AND AWARD THE APPROPRIATE COMPENSATION IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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The petitioner has challenged the judgment and award dated 11.02.2011 passed in M.V.C.No.243/2009 by the learned I Addl. Senior Civil Judge and Member, Addl. MACT, Hubballi (for short, ‘Tribunal’) in dismissing the claim petition of the petitioner under Section 166 of the Motor Vehicle Act, 1988.

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The appellant was the petitioner and

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respondents were the respondents before the Tribunal. Hence, for the sake of convenience, the rank of the parties will be referred to as per their status before the Tribunal.

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Brief facts of the case are, on 09.05.2007, the husband of the petitioner by name Srinivas Naik (for short, ‘deceased’) boarded a KSRTC bus bearing No.KA-01/F7914 at Shringeri in order to go to Bengaluru. When the bus reached near Kibbanahalli within the limits of Tiptur on NH-206 at about 3.45 a.m., an unknown lorry came and hit against right back portion of the KSRTC bus where the deceased was sleeping projecting his hand outside the

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windows. Due to the impact, he sustained injuries on his right hand and he was admitted to Siddartha Hospital, Tumkur and thereafter at Hosmath Hospital, Bengaluru, where he died after four days of the accident. Pleading negligence against the KSRTC bus, the petitioner has claimed compensation of Rs.18,80,000/with 18%

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interest before the Tribunal. Claim was opposed by the KSRTC. The Tribunal has framed the following issues:

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1) Whether the petitioner proves that the death of her husband in a motor vehicle accident that occurred on 9.5.2007 at about 3.45 hours on NH-206 road, near Kibbanahalli on account of the rash and negligent driving of K.S.R.T.C. bus bearing registration No. KA 01/F-7914 by its driver?

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2) Whether the Respondents prove that accident was occurred due to rash and negligent act of deceased himself and driver of lorry?

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3) Whether petition is bad for non-joinder of necessary parties?

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4) Whether the petitioner is entitled to compensation? If yes, what is the quantum and from which of the respondents?

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5) What order or Award?

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Before the Tribunal, the Tribunal held enquiry,

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wherein the petitioner examined herself as PW1 and got

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marked 20 documents as Exs.P1 to P20 and on behalf of the KSRTC, the driver of the bus was examined as RW1 and two documents came to be marked as Exs.R1 and R2. The Tribunal after hearing the both the parties, dismissed the petition on the ground that the negligence on part of the KSRTC was not proved. Aggrieved by the same, the petitioner has filed this appeal on various grounds.

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Heard the arguments of Sri. Hanumant R. Latur,

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learned counsel for the petitioner and Sri. S. C. Bhuti, learned counsel for the KSRTC.

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It is the contention of the learned counsel for

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the petitioner that, the deceased was the inmate of the bus, the spot of the accident was a wide National Highway and the bus was crossed the midline of the road facilitating the lorry to hit on the rear portion of the bus, resulting in the accident. The Tribunal has not framed any issue regarding this nor attributed any negligence on the part of the driver of the bus. Learned counsel has taken the

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Court to the evidence placed before the Court by the driver of the bus as RW1 and in the course of crossexamination, clear attribution made against him that he was also negligent in causing the accident. The Tribunal has not assesse d the compensation. It has blindly dismissed the claim petition and he sought for and opportunity to place the additional evidence before the Tribunal to properly explain the negligence on the part of the first respondent in causing the accident resulting in death of the deceased.

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Per contra, learned counsel for the KSRTC has contended that, the accident took place at 3.45 am on National Highway. If the driver of the KSRTC bus was negligent, there could have been a head-on collision. The bus was on its correct route to Bengaluru. The lorry came and dashed on the rear right side portion of the bus, for which the driver cannot attributed negligence for any reason. The complaint is filed against the lorry and not against the bus. In the complaint, there is no allegation

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against the driver of the bus. Since the investigation is culminated in filing of 'C' report that the whereabouts of the lorry was not traced, for the sake of compensation, attributed negligence against the driver of the bus and the present claim petition is filed. PW1 is not an eyewitness. No evidence is placed on behalf of the driver to prove the negligence. Mere cross-examination of the driver is not suffice to attribute negligence on the part of the bus driver. The Tribunal has rightly recorded its finding that no negligence against the driver of the bus is proved and thereby the petitioner is not entitled to claim compensation from the KSRTC and he has supported the impugned judgment.

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I gave my anxious consideration to the arguments advanced on behalf of both sides and perused the records.

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The material on record point out that the bus is specifically named as Mayura and interesting to note that the said bus is an air-conditioned bus. In case of an air-

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conditioned bus, no window of either side of the bus is able to open by the passenger. Admittedly, the deceased was a passenger of the bus. The bus was under the supervision of the conductor. The unfortunate accident took place at 3.45 am in the early morning, where one can expect the sleeping trend of passengers as well as the conductor. It is interesting to note that the sketch prepared at the spot clearly indicate that the bus was on the midline of the road on the National Highway and the bus as well as the lorry came across all of a sudden and since the driver took the bus towards the left, head-on collision was prevented, whereas the lorry has hit to rear portion of the bus. The unfortunate passenger, due to impact sustained injuries on his hands and on account of said injuries, he succumbed to death four days thereafter.

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The material on record also point out that, the

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driver of the bus though revealed to his superior officers from the side of the KSRTC that there is no report filed to the police about the incident, if really there was no

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negligence on the part of the bus, why report was not filed to the jurisdictional police informing the alleged incident found no explanation. Only after the death of the deceased, his brother files complaint to the police. Thereafter the case was registered and ultimately ‘C’ report came to be filled for not tracing of the lorry. During the investigation, if the lorry was traced, the driver could have explained the circumstance under which the accident had taken place. In the absence of the lorry driver, the police have completed their formality in filing the ‘C’ report. Filing of the ‘C’ report in the criminal case does not dispel the responsibility of the KSRTC as the report filed is only a closer for the sake of statistics and the police have not filed any ‘B’ report that the complaint is closed. The KSRTC admitting that the deceased was its passenger, in an air-conditioned bus, how could a passenger project his hand outside the window is not explained.

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P W1 is the wife of the deceased. She was not an eyewitness to the incident. The first respondent is

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examined as RW1. Though attributed negligence against the driver of the lorry, during the course of crossexamination, clear attribution is made against him that he was also contributed for the accident.

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I have carefully perused the sketch and also the mahazer drawn during the course of investigation, which is made available in the records. It is pertinent to note that, the bus was on the exact midline of the road and the lorry was touching the right rear portion of the bus. It shows that the bus was not on its left side towards Bengaluru and it was on the middle of the road. These circumstances forced a passenger to sustain injury and at the same time the KSRTC cannot shake its hands claiming that negligence is on the part of the lorry driver when it is their duty to safeguard the interest of its passengers.

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I have carefully perused the impugned judgment. The entire judgment attribute negligence on the part of the lorry. The Tribunal though referred to the evidence of RW1, it has come to the conclusion that there

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is no negligence on the part of the bus, without referring

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to the fact that, in an air-conditioned bus, how the passenger can project his hands outside the window, the location of the bus on the middle of the road at the time of accident and cross-examination of RW1 regarding contributory intelligence on his part. The argument of learned counsel for KSRTC is that, if the driver is negligent, there could have been head-on collision. But the said submission is persuasive in nature as the lorry hit against right rear portion of the bus. It shows the driver was not careful and he has not given any evidence that he made any attempts to avoid the lorry hitting against the bus. Hence it is a case of contributory intelligence on the part of the KSRTC bus also.

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On perusal of the impugned judgment, the Tribunal did not consider the aspect of quantification of the compensation and not included the medical expenses. Hence, instead of assessing the compensation, it is a fit case where parties can be permitted to place proper

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evidence before the Tribunal to explain the percentage of contributory negligence on the part of the KSRTC driver and to assess the compensation and award compensation to the extent of contributory negligence on the part of the KSRTC. Hence the appeal merits consideration and it is a fit case for remand. In the result, the following:

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ORDER

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i. The appeal is allowed.

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ii. The impugned judgment dated 11.02.2011 passed by the I Addl. Senior Civil Judge and Addl. MACT, Hubballi, in MVC No.243/2009, is set aside.

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iii. The matter is remanded back to the Tribunal with a direction to the Tribunal to formulate an issue regarding contributory negligence on the part of the KSRTC bus and permit both the parties to lead additional evidence and

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NC: 2024:KHC-D:7972 MFA No. 20031 of 2012

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to decide the case afresh in the light of

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the observations made supra.

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iv. Without further notice, the parties shall appear before the Tribunal on 15.07.2014.

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v. Office to forward the Trial Court records along with the copy of this judgment for the information of the Tribunal.

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Sd/JUDGE

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NAA- upto para 3 gab – para 4 to end List No.: 1 Sl No.: 29

Prema S/O. Srinivas Naik v. M Shivanna S/O. Ninjappa

Case brief

What is this about?

What did the court decide?

Prema S/O. Srinivas Naik v. M Shivanna S/O. Ninjappa

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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