The Divisional Controller Vs D Sarappa S/O. Obayya

THE DIVISIONAL CONTROLLER, NEKRTC, OWNER, KSRTC BUS REG. NO.KA-35-F-191, HOSAPETE DIVISION, HOSAPETE, BALLARI DISTRICT, REPRESENTED BY CHIEF LAW OFFICER, NEKRTC, CENTRAL OFFICE, KALABURAGI.

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…APPELLANT

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(BY SRI. S. C. BHUTI, ADVOCATE)

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Digitally signed by CHANDRASHEKAR LAXMAN KATTIMANI Location: High Court of Karnataka, Dharwad Bench

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AND:

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D. SARAPPA S/O. OBAYYA, AGED 49 YEARS, AGRICULTURIST.

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SMT. OBAMMA W/O. D. SARAPPA, AGED 43 YEARS.

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MANJAPPA @ MANJUNATHA S. S/O. D. SARAPPA, AGED 25 YEARS, STUDENT.

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S. ANJINAPPA S/O. D. SARAPPA, AGED 21 YEARS, STUDENT.

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HC-KAR

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S. ASHWINI D/O. D. SARAPPA, AGED 16 YEARS, STUDENT,

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RESPONDENT NO.5 IS MINOR REPRESENTED BY HER MOTHER AND NATURAL GUARDIAN SMT. OBAMMA W/O. D. SARAPPA

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ALL ARE R/O. MALLARAHALLI VILLAGE, AGRAHARA POST, SANDUR TALUK, BALLARI DISTRICT-583128.

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THINDAPPA S/O. JINNAPPA AGED 35 YEARS, DRIVER, KSRTC BUS REG. NO.KA-35-F-191, R/O. YASHWANTH NAGAR, SANDUR TALUK, BALLARI DISTRICT-583128.

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…RESPONDENTS

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(BY SRI. GURUKUMAR V. A., ADV. FOR R1 TO R4; R5-MINOR RB/Y R2; NOTICE TO R6 DISPENSED WITH)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLE ACT, 1988, PRAYING TO SET ASIDE THE JUDGMENT AND AWARD PASSED BY THE COURT OF THE SENIOR CIVIL JUDGE AND MACT-VI, KUDLIGI SITTING AT SANDUR IN M.V.C. NO.1133/2018 DATED 24.02.2023 IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS APPEAL, COMING ON FOR HEARING ON IA, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: THE HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV AND

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THE HON'BLE MR. JUSTICE VIJAYKUMAR A.PATIL

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HC-KAR

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE VIJAYKUMAR A.PATIL)

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This appeal is filed challenging the judgment and award dated 24.02.2023 passed in MVC No.1133 of 2018 by the Senior Civil Judge and MACT, Kudligi sitting at Sandur¹ .

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Brief facts leading to filing of this appeal are that on 24.08.2018, one K.Basappa was traveling in an auto rickshaw bearing Registration No.KA-17/D-0093 as a passenger and at about 11:50 a.m., the driver of the appellant bus bearing registration No.KA-35/F-191 drove the same at high speed and in a rash and negligent manner without following the traffic rules, dashed to the auto rickshaw, resulted in sustaining grievous injuries to the inmate K.Basappa. Later, he succumbed to the injuries. It is averred that during the time of accident, the deceased was aged about 19 years and working as Helper in JCB and was earning ₹15,000/- per month. It is further averred that the claimants are the parents, siblings and were dependent on the income of the deceased and sought for compensation.

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1 ‘Tribunal’, for short

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HC-KAR

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The appellant filed written statement denying the averments made in the claim petition, denied age, income and avocation of the deceased. It was denied that the driver of the bus was negligent and caused the accident in question. It is to be noticed that respondent No.1, the driver of the bus has not filed any written statement. The Tribunal recorded the evidence. The claimant No.1 examined himself as PW1 and got marked Exhibits P1 to P14. The driver of the offending bus was examined as RW1 and did not produce any documents. The Tribunal, on appreciation of the oral and documentary evidence, recorded the finding that the driver of the bus was negligently caused the accident and saddled the liability and awarded total compensation ₹18,96,600/-. Being aggrieved, the appellantCorporation is in appeal challenging the aspect of negligence as well as quantum.

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Sri S.C.Bhuti, learned counsel appearing for the appellant-Corporation submits that the Tribunal has committed grave error in coming to conclusion that the driver of the bus was negligent without appreciating the fact that the accident is a head-on collision. It is submitted that the RW1 - driver of the bus

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HC-KAR

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has deposed before the Tribunal with regard to the aspect of negligence and the said evidence has not been properly appreciated by the Tribunal. Hence, he seeks to modify the liability by holding that the driver of the auto rickshaw has contributed to the accident in question to a certain extent. It is further submitted that the owner and the insurer of the auto rickshaw were not parties before the Tribunal. Hence, the claim petition ought to have been rejected. Further, the award of compensation under the head of funeral expenses of ₹25,000/is higher and is requires to be modified. Hence, he seeks to allow the appeal.

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Per contra, Sri Gurukumar V.A., learned counsel appearing for respondents No.1 to 4 supports the impugned judgment and award of the Tribunal and submits that the Tribunal taking note of the fact that the Jurisdictional Police after investigation filed charge sheet against the driver of the offending bus and in cross-examination, he has admitted with regard to the filing of the charge sheet. It is further submitted that mere head-on collision itself will not establish that the driver of the auto rickshaw was negligent and in support of his

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HC-KAR

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contention, he placed reliance on the decision of the Hon'ble Supreme Court in the case of Kumari Kiran through her father Harinarayan v. Sajjan Singh and others² . Hence, he seeks to dismiss the appeal.

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We have heard the arguments of the learned counsel for the appellant-Corporation, learned counsel for the respondents No.1 to 4 and meticulously perused the materials available on record, including the Tribunal records.

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The parties to the proceedings do not dispute that in a road accident dated 24.08.2018, the deceased K.Basappa has sustained grievous injuries and succumbed to those injuries. The records indicate that at the time of accident, the deceased was aged about 19 years and working as Helper and earning ₹15,000/- per month. The Tribunal taking the age and avocation, assessed the income and awarded the compensation. The contention of the appellant is that the accident is a head-on collision between the two vehicles. Hence, the driver of the auto rickshaw has also contributed to the negligence is required to be rejected for the simple reason that the Exhibits P1 to P6 clearly

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2 2015(1) SCC 539

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HC-KAR

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indicate that the accident is caused due to the rash and negligent driving of the bus by its driver and charge sheet is filed against the said driver. The Tribunal taking note of the same has assigned detailed reasons at Para 13 and come to conclusion that the driver of the bus was negligent and caused the accident. We do not find any error in the aforesaid finding to interfere in this appeal. It would be useful to refer the relevant paragraph 13 of the judgment.

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“13. Now, it is necessary to examine as to whether the accident in question was caused by the negligent act of the driver of the Bus i.e., respondent No.1 herein or whether the driver of the Auto was responsible or whether both have contributed for the cause of the accident. As observed above, jurisdictional Police have registered case against the respondent No.1 for the offences punishable U/s 279, 337, 338 and 304-A of IPC. As observed above, in the crossexamination of the P.W-1 nothing worth is elicited to show that respondent No.1 was not negligent or that the driver of the Auto was negligent or that he contributed for the cause of the accident. It is not elicited or established that Police have registered false case against the respondent No.1. Moreover,

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HC-KAR

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respondent No.1 did not file his written statement denying the petition averments and he was examined as R.W-1, wherein he admitted filing of charge sheet against him. Hence, it is difficult to accept the mere contention of the respondent No.2 that there was negligence on the part of the driver of the Auto or that he contributed for the occurrence of the accident. Hence, having regard to the fact that Jurisdictional Police have filed the charge sheet against the respondent No.1 and there is nothing on record to disbelieve the said evidence available on record, this Tribunal is of the opinion that the claimants have proved the issue No.1 framed for consideration and accordingly same is answered in the affirmative and the respondent No.2 has failed to prove its contention and hence issue No.2 is answered in the negative.”

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Insofar as an award of compensation by the Tribunal under the head of funeral expenses i.e. ₹25,000/- is concerned, we are of the view that it is contrary to the law laid on by the Hon'ble Supreme Court in the case of National Insurance Company Limited Vs. Pranay Sethi & Others³ . Hence, we modify the impugned order of the Tribunal only to the aforesaid

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3 2017 (16) SCC 680

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HC-KAR

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extent and awarded ₹15,000/- under the aforesaid head as against ₹25,000/- awarded by the Tribunal.

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Thus, the claimants would be entitled to total compensation of ₹18,86,600/- (₹18,96,600 less ₹10,000/-) as against ₹18,96,600/- awarded by the Tribunal.

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Hence, we proceed to pass the following:

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ORDER

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i. The appeal is allowed in part .

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ii. The impugned judgment & award passed by Tribunal is modified to an extent that the claimants would be entitled to total compensation of ₹18,86,600/- as against ₹18,96,600/- awarded by the Tribunal.

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iii. The compensation shall carry interest at the rate of 6% per annum from the date of petition till date of payment.

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iv. Respondent/Corporation shall deposit the compensation amount with accrued interest before the Tribunal within a period of six weeks from the date of receipt of certified copy of this judgment.

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