Vikas Rao Vs Sharanayya and Ors.

DILIP KUMAR S/O KANTEPPA BIRADAR AGE: 40 YEARS, OCC: OWNER OF LORRY BEARING NO.KA-32/A.0858, R/O H.NO.2/156-1, RAMPURE BANK COLONY, KUMBARWADE, BIDAR.

¶26

THE MANAGER, BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD., IV FLOOR, KALBURAGI MANSION, OPP.MUNICIPAL CORPORATION, LIMINGTON ROAD, HUBLI.

¶27

DR. VINEET S/O VIKAS RAO KULKARNI AGE: MAJOR, OCC: MEDICAL PRACTITIONER, R/O BHAGAN NIVAS, H.NO.3-979, GAZIPURA, KALABURAGI-585102

¶28

OWNER OF ASHOK LEYLAND

¶29

…RESPONDENTS (BY SRI SHIVANAND PATIL, ADV. FOR R1 TO R3; SRI MANURE ASHOK KUMAR, ADV. FOR R4; SRI C.S. KALABURAGI, ADV. FOR R6; NOTICE TO R5 SERVED; NOTICE TO R7 DISPENSED WITH)

¶30

THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, PRAYING TO SET ASIDE THE JUDGMENT AND AWARD PASSED BY THE I ADDL. SENIOR CIVIL JUDGE, KALABURAGI, IN M.V.C.NO.1059/2012, DATED-18.01.2018, IN

¶31

3 - NC: 2025:KHC-K:2215-DB MFA No. 200825 of 2018 C/W MFA No. 200826 of 2018 MFA No. 200944 of 2018 AND 1 OTHER

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SO FAR AS FIXING 50 OF THE LIABILITY ON THE APPELLANT TO PAY THE COMPENSATION TO THE RESPONDENT NO.1 TO 3.

¶33

IN M.F.A.NO.200826/2018:

¶34

BETWEEN:

¶35

VIKAS RAO S/O VENKATESH RAO KULKARNI, AGE:59 YEARS, OCC: GOVT. SERVANT, R/O BHAGYA NIVAS, H.NO.3-979, GAZIPURA, KALABURAGI.

¶36

…APPELLANT

¶37

(BY SRI KRUPA SAGAR PATIL, ADVOCATE)

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AND:

¶39

DR. VISHWESHWARAYYA @ VISHWANATH S/O REVANASIDDAYYA, AGE: 31 YEARS, OCC: PRIVATE MEDICAL PRACTITIONER, R/O H.NO.10-3-36A, N.V. LAYOUT, VITHAL NAGAR, KALABURAGI – 585103.

¶40

MALLAPPA S/O PARBHANNA MUKDE AGE: 59 YEARS, OCC: DRIVER OF LORRY NO.KA-32/A.0858, R/O HALLAD KERI, DIST. BIDAR.

¶41

DILIP KUMAR S/O KANTEPPA BIRADAR AGE: 38 YEARS, OCC: OWNER OF LORRY BEARING NO.KA.32/A.0858, R/O H.NO.2/156-1, RAMPURE BANK COLONY, KUMBARWADE, BIDAR.

¶42

THE MANAGER, BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD., IV FLOOR, KALBURAGI MANSION, OPP. MUNICIPAL CORPORATION, LIMINGTON ROAD, HUBLI.

¶43

4 - NC: 2025:KHC-K:2215-DB MFA No. 200825 of 2018 C/W MFA No. 200826 of 2018 MFA No. 200944 of 2018 AND 1 OTHER

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DR. VINEET S/O VIKAS RAO KULKARNI

¶45

AGE: MAJOR, OCC: MEDICAL PRACTITIONER, R/O BHAGAN NIVAS, H.NO.3-979, GAZIPURA, KALABURAGI – 585102. OWNER OF ASHOK LEYLAND

¶46

…RESPONDENTS

¶47

(BY SRI AJAYKUMAR, ADV. FOR R1; SRI MANURE ASHOK KUMAR, ADV. FOR R2 & R3; SRI SUDARSHAN .M, ADV. FOR R4; NOTICE TO R5 DISPENSED WITH)

¶48

THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, PRAYING TO SET ASIDE THE JUDGMENT AND AWARD PASSED BY THE I ADDL. SENIOR CIVIL JUDGE, KALABURAGI, IN M.V.C.NO.1185/2012, DATED 18.01.2018, IN SO FAR AS FIXING 50% OF THE LIABILITY ON THE APPELLANT TO PAY THE COMPENSATION TO THE RESPONDENT NO.1.

¶49

IN M.F.A.NO.200944/2018:

¶50

BETWEEN:

¶51

THE MANAGER, BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD., IV FLOOR, KALBURAGI MANSION, OPP. MUNICIPAL CORPORATION, LIMINGTON ROAD, HUBLI. NOW REPRESENTED BY BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD., 1^ST FLOOR, KALABURAGI NOOLVI MAGISTRATE, NEW COTTON MARKET, HUBLI – 580029 THROUGH ASSISTANT MANAGER. THROUGH AUTHORISED SIGNATORY

¶52

…APPELLANT

¶53

(BY SRI SUDARSHAN .M, A/W SRI.S.K. KAYAKAMATH, ADVS.,)

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AND:

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SHARANAYYA S/O VEERUPAKSHAYYA SALIMATH, AGE: 64 YEARS, OCC: CLERK,

¶57

RAJESHWARI W/O SHARANAYYA SALIMATH AGE: 53 YEARS,

¶58

ROOPA D/O SHARANAYYA SALIMATH AGE: 27 YEARS, ALL ARE R/O KHB AKKAMAHADEVI COLONY, LIG II, 137/7, OPP: HIGH COURT, RING ROAD, GULBARGA – 585102.

¶59

MALLAPPA S/O PARBHANNA MUKDE AGE: 59 YEARS, OCC: DRIVER OF LORRY NO.KA-32/A.0858, R/O HALLAD KERI, DIST. BIDAR – 584101.

¶60

DILIP KUMAR S/O KANTEPPA BIRADAR AGE: 38 YEARS, OCC: OWNER OF LORRY BEARING NO.KA.32/A.0858, R/O H.NO.2/156-1, RAMPURE BANK COLONY, KUMBARWADE, BIDAR – 584101.

¶61

DR. VINEET S/O VIKAS RAO KULKARNI AGE: MAJOR, OCC: MEDICAL PRACTITIONER, R/O BHAGANIVAS, H.NO.3-979, GAZIPURA, GULBARGA – 585102 OWNER OF ASHOK LEYLAND

¶62

VIKAS RAO S/O VENKATESH RAO KULKARNI AGE: MAJOR, OCC: GOVT. SERVANT & OWNER OF VEHICLE NO.KA-32/M-6282, R/O BHAGYANIVAS, H.NO.3-979, GAZIPURA, GULBARGA – 585102.

¶63

…RESPONDENTS

¶64

(BY SRI SHIVANAND PATIL, ADV. FOR R1 TO R3; SRI KRUPA SAGAR PATIL, ADV. FOR R7; NOTICE TO R6 SERVED;

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NOTICE TO R4 & R5 DISPENSED WITH)

¶67

THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 18^TH DAY OF JANUARY, 2018 PASSED BY THE I ADDL. SENIOR CIVIL JUDGE & MACT AT KALABURAGI IN M.V.C.NO.1059/2012 AND TO MODIFY THE JUDGMENT AND AWARD AND TO PASS SUCH ORDER OR ORDERS AS THIS HON’BLE COURT DEEMS FIT UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE.

¶68

IN M.F.A.NO.200945/2018:

¶69

BETWEEN:

¶70

THE MANAGER, BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD., IV FLOOR, KALBURAGI MANSION, OPP. MUNICIPAL CORPORATION, LIMINGTON ROAD, HUBLI. NOW REPRESENTED BY BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD., 1^ST FLOOR, KALABURAGI NOOLVI MAGISTRATE, NEW COTTON MARKET, HUBLI – 580029 THROUGH ASSISTANT MANAGER. R/BY AUTHORISED SIGNATORY

¶71

…APPELLANT

¶72

(BY SRI SUDARSHAN .M, A/W SRI.S.K. KAYAKAMATH, ADVS.,)

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AND:

¶75

DR. VISHWESHWARAYYA @ VISHWANATH S/O REVANASIDDAYYA, AGE: 31 YEARS, OCC: PRIVATE MEDICAL PRACTITIONER, R/O H.NO.10-3-36A, N.V. LAYOUT, VITHAL NAGAR, KALABURAGI – 585102.

¶76

MALLAPPA S/O PARBHANNA MUKDE AGE: 57 YEARS, OCC: DRIVER OF LORRY NO.KA-32/A.0858, R/O HALLAD KERI, DIST. BIDAR – 584101.

¶77

DILIP KUMAR S/O KANTEPPA BIRADAR AGE: 38 YEARS, OCC: OWNER OF LORRY BEARING NO.KA.32/A.0858, R/O H.NO.2/156-1, RAMPURE BANK COLONY, KUMBARWADE, BIDAR – 584101.

¶78

DR. VINEET S/O VIKAS RAO KULKARNI AGE: MAJOR, OCC: MEDICAL PRACTITIONER, R/O BHAGANIVAS, H.NO.3-979, GAZIPURA, GULBARGA – 585102

¶79

OWNER OF ASHOK LEYLAND

¶80

VIKAS RAO S/O VENKATESH RAO KULKARNI AGE: MAJOR, OCC: GOVT. SERVANT & OWNER OF VEHICLE NO.KA-32/M-6282, R/O BHAGYANIVAS, H.NO.3-979, GAZIPURA, GULBARGA – 585102.

¶81

…RESPONDENTS

¶82

(BY SRI AJAYA KUMAR ASHOK KUMAR, ADV. FOR R1; SRI MANURE ASHOK KUMAR, ADV. FOR R2 & R3; SRI KRUPA SAGAR PATIL, ADV. FOR R5; NOTICE TO R4 HELD SUFFICIENT)

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8 - NC: 2025:KHC-K:2215-DB MFA No. 200825 of 2018 C/W MFA No. 200826 of 2018 MFA No. 200944 of 2018 AND 1 OTHER

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THIS MFA IS FILED UNDER SECTION 173 (1) OF MOTOR VEHICLES ACT, PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 18^TH DAY OF JANUARY, 2018 PASSED BY THE I ADDL. SENIOR CIVIL JUDGE & MACT AT KALABURAGI IN M.V.C.NO.1185/2012 AND TO MODIFY THE JUDGMENT AND AWARD AND TO PASS SUCH ORDER OR ORDERS AS THIS HON’BLE COURT DEEMS FIT UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE.

¶85

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

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CORAM: HON'BLE MR JUSTICE K NATARAJAN AND

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HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL

¶88

ORAL JUDGMENT

¶89

(PER: HON'BLE MR JUSTICE K NATARAJAN)

¶90

These appeals are filed under Section 173 (1) of

¶91

Motor Vehicles Act, (for short, hereinafter referred to as ‘the Act’) and the same are arising out of the common judgment and award dated 18.01.2018 passed in MVC.No.1059/2012 and MVC No.1185/2012 by the I Additional Senior Civil Judge and MACT, Kalaburagi.

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Though these matters are listed for hearing on interlocutory application, with the consent of learned counsel for the parties, the same are taken up for final disposal.

¶94

Parties are referred to as per their ranking before the Tribunal. The appellants in first two cases is respondent No.5 and the appellants in other two cases are respondent No.3-Insurance Company.

¶95

Being aggrieved by the judgment and award passed by the Tribunal, the respondent No.5-owner of the car has filed the appeals in MFA Nos.200825/2018 and 200826/2018 challenging 50% of the liability and the respondent No.5-Insurance Company has filed the appeals in MFA.Nos.200944/2018 and 200945/2018 challenging the contributory negligence on it.

¶96

The case of the claimants in both the cases is that they have filed claim petition under Section 166 of M.V. Act for claiming compensation for the death of Dr.Nagaraj in MVC No.1059/2012 and Vishwesharayya @

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Vishwanath for the injuries sustained by him in MVC No.1185/2012 in the road traffic accident. It is alleged that on 04.03.2012 the deceased Dr.Nagaraj and Dr.Vishwanath along with Dr.Vineet-respondent No.4 were proceeding to Gulbarga from Humnabad in the Swift Car bearing registration No.KA-32/M-6282 being driven by respondent No.4. At about 12.30 a.m., when they were near Kakanmaddi cross on Humnabad-Gulbarga Highway, respondent No.4-driver of the car dashed to the lorry bearing registration No.KA-32/A-0858 which was negligently parked by respondent No.1 on the middle of the road without any indications or parking lights without noticing the parked vehicle. Due to which, they have sustained injuries and the said Dr.Nagaraj died on the spot. The claimant in MVC No.1185/2012 sustained injuries and driver of the car also sustained injuries. It is contended that the accident was occurred due to sole rash and negligent parking of the vehicle on the middle of the road by the driver of the lorry without any indicators and

¶99

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that too in the middle of the road. Due to which the said accident was occurred. Hence, they have filed claim petitions seeking compensation on various heads.

¶101

The claimants have not impleaded any Insurance Company as there is no Insurance policy for the car which was met with the accident in question.

¶102

The respondent No.3-Insurance Company

¶103

appeared through its counsel and filed the written statement by denying the rash and negligent parking of the vehicle on the road. It is contended that the accident was occurred solely on the rash and negligent driving by the respondent No.4-driver of the car while proceeding who himself came and dashed to the parked lorry. The charge sheet is also filed against the driver of the car. Such being the case, fastening the liability on the Insurance Company does not arise. Apart from that it is also denied the age, occupation and income of the deceased and the compensation claimed by the claimants. Hence, prayed for dismissal of the claim petitions.

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The respondent Nos.4 and 5 the driver and owner of the car also filed statement of objections denying the rash and negligence on the part of the driver of the car and contended that on the said date the respondent No.1driver of the lorry parked the lorry on the middle of the road just few minutes prior to the accident without putting any indicators or parking lights. At around mid night, when the Car was near Kankanmaddi, cross, a four wheeler came from opposite direction in a high speed having powerful headlights and because of rays of headlights, the respondent No.4 could not see anything infront of him, without noticing the lorry which was negligently parked on the road, thereby dashed to the said lorry. Due to which, the accident was occurred and there is not negligence on his part and further denying other averments made in the claim petitions. Hence, prayed for dismissal of claim petitions.

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Based upon the above pleadings the Tribunal

¶108

has framed the following issues in both cases and recasted

¶109

issues:-

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“IN MVC No.1059/2012:

¶111

Whether the petitioners prove that on 4-3-2012 at about 12.30 am the deceased Dr.Nagaraj Salamath along with Dr.Vishwanath Swamy were returning to Gulbarga from Humnabad in a Swift Car bearing No.KA.32/M.6282 being driven by respondent No.4, when the said car was near Kagganmadi Cross on Humnabad to Gulbarga NH.218 one Lorry bearing Regn.No.KA.32/A.0858 was negligently parked on the road without any parking signals and indications, the respondent No.4 drove it in a very high speed and without noticing the parked lorry dashed to hind side due to which the deceased Dr.Nagaraj sustained fatal injuries and died on the spot?

¶112

Whether respondent No.3 proves that the driver of the offending Lorry was not

¶113

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holding valid and effective DL at the time of accident and also violated the terms and conditions of the policy?

¶115

Whether respondent No.3 further proves that there was contributory negligence on the part of vehicles involved in the accident?

¶116

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

¶117

What award or order?

¶118

IN MVC No.1185/2012:

¶119

Whether the petitioner proves that on 04-03-2012 at about 12-30 AM while the petitioner Dr.Vishweshwarayya @ Vishwanath and his friends Dr.Nagaraj Salimath and respondent No.4 Dr.Vineet were returning to Gulbarga from Humnabad in a Maruti Swift Car bearing No.KA.32/M.6282, being driven by respondent No.4 Dr.Vineet. Injured petitioner and his friend Dr.Nagaraj are the inmates of the above said car, near Kagganmaddi cross situated on

¶120

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Humnabad to Gulbarga NH.218 being driven by the respondent No.4 in a normal speed, suddenly the said car hit the rear side of the Lorry bearing No.KA.2/A.0858, parked by its driver i.e., respondent No.1 n a negligent manner and endangering the human life and caused the accident?

¶122

Whether the petitioner further proves that, the accident was occurred due to the negligence act of being the driver of the respondent No.4, Maruti Swift Car bearing No.KA.32/M.6282, suddenly dashed to the rear side of the lorry bearing No.KA.32/A.0858, due to which he sustained grievous injuries and as such the respondents are liable to pay the compensation?

¶123

Whether the petitioner is entitled for the compensation? If so, to what amount and from whom?

¶124

What award or order?

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Recasted Issue No.2 in MVC 1185/2012:

¶126

Whether petitioner further proves that in the said accident he sustained injuries?

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On behalf of the claimants, claimant No.2 in MVC No.1059/2012 was examined as PW.1, claimant in MVC No.1185/2012 was examined himself as PW.2. The employer of the deceased was examined as PW.3 and the doctor who issued the disability certificate was examined as PW.4 and got marked documents as Exs.P.1 to 23. On the other hand, the respondent Nos.1 and 2 did not lead any evidence. However, the respondent No.3 examined its Manager as PW.4 and they also examined the Investigating Officer in the criminal case as RW.3 and respondent No.4-driver of the car was examined as RW.2 and got marked documents as Exs.R1 to R5.

¶129

On the basis of the material evidence both oral

¶130

and documentary, the Tribunal, answered issue No.1 in both the cases in the affirmative, issue No.2 in MVC No.1059/2012 in the negative, issue No.3 in the affirmative, issue No.4 partly in the affirmative and issue No.2 in MVC No.1185/2012 in the affirmative, issue No.3 partly in the affirmative. Both the claim petitions were

¶131

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partly allowed by fixing the liability of 50% each on the contributory negligence along with interest on the respondent Nos.3 and 5 and ordered that the claimants are entitled for the following compensation as under:-

¶133

In MVC No.1059/2012:

¶134

Sl. No.	Heads	Compensation Awarded
1.	Loss of love and affection	Rs.60,000/-
2.	Funeral and transportation expenses	Rs.15,000/-
3.	Loss of dependency	Rs.68,85,000/-
	Total	Rs.69,60,000/-

¶135

In MVC No.1185/2012:

¶136

Sl. No.	Heads	Compensation Awarded
1.	Pain and suffering	Rs.60,000/-
2.	Medical expenses	Rs.15,000/-
3.	Attendant and conveyance charges	Rs.4,600/-
4.	Loss of amenities of life	Rs.1,50,000/-
	Total	Rs.1,99,600/-

¶137

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Being aggrieved by the same and fixing the liability of 50% each both on the owner of the car as well as insurer of the lorry are before this Court.

¶139

The learned counsel appearing for the appellant-owner has contended that the evidence of PWs.1 to 4 as well as RW.2, it is clear that the accident was occurred due to rash and negligent parking of the lorry by the driver of the lorry on the middle of the road and not by any negligence on the part of the driver of the car. There is a positive evidence led by the claimants as well as the driver of the car. PW.2-Vishweshwarayya when he was under treatment was examined by the Solapur Police has stated that he was not at all part of the charge sheet filed by Mahagaon Police-RW.3. Therefore, there is an error in the judgment and finding of the Tribunal and the said documents clearly clinches the issue that the accident was occurred due to negligent parking of the lorry on the middle of the road. Merely, filing of the charge sheet

¶140

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against the driver of the car that itself is not a ground to fix the contributory negligence. Therefore, it is contended that the entire liability shall be fixed on the driver, owner and insurer of the lorry. Hence, prayed for exonerating the 50% liability or contributory negligence fixed by the Tribunal on issue No.1 against the driver of the car. Accordingly, prayed to allow the appeals filed by the owner.

¶142

Per contra, learned counsel appearing for the respondent-Insurance Company has also challenged the finding of the Tribunal and contended that the Tribunal has committed an error in fixing the liability of contributory negligence on the part of both the drivers. As per the evidence on record, complaint and charge sheet clearly reveals that the accident was occurred due to negligent act on the part of the driver of the car-the respondent No.4 and in his evidence he has stated that the accident was occurred due to flashing of head lights of the opposite vehicle and he has not taken any such contention that he

¶143

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has tried to avoid the accident which was parked on the middle of the road and it is a clear negligence on the part of the driver of the car. The police also investigated the matter and filed the charge sheet against respondent No.4, driver of the car. The evidence of RWs.1 and 3 clearly shows that the accident was occurred due to negligent act on the part of the driver of the car. Even in the cross examination of PW.2, he was elicited that the accident was occurred due to the negligent on the part of the driver of the car. All these documentary evidence as well as the oral evidence have been ignored and hold that contributory negligence by the Tribunal is not correct. Hence, prayed to set aside 50% of the liability fastened on the Insurance Company.

¶145

In support of his contention the learned counsel for the Insurance Company relied on the following decisions of the Hon’ble Apex Court;

¶146

(1) Nishan Singh and Others Vs. Oriental Insurance Company, (2018) 6 SCC 765;

¶147

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(2) Minu B.Mehta and Another Vs. Balkrishna

¶149

Ramchandra Nayan and Another, (1977) 2

¶150

SCC 441:

¶151

Learned counsel appearing for the Insurance

¶152

Company also contended that the Tribunal has committed

¶153

an error in not deducting the income tax from the income

¶154

of the deceased which has to be reduced. Therefore, He

¶155

seeks to reduce the quantum of compensation.

¶156

The learned counsel for the claimants supports

¶157

the owner of the car and submits that the lorry was parked

¶158

on the middle of the road due to which the accident was

¶159

occurred. Hence, prayed for fastening the liability on the

¶160

Insurance Company.

¶161

Having heard the arguments and perused the

¶162

records, the points that would arise for our consideration

¶163

are as under:-

¶164

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I. Whether the Tribunal justified in fastening the liability of 50% each on the driver of the car as well as driver of the lorry on the ground of contributory negligence which calls for any interference by this Court?

¶166

II. Whether the award of compensation passed by the Tribunal is exorbitant, excessive required for any reduction?

¶167

III. What order?

¶168

On perusal of the records, it is not in dispute that the accident in question dated 04.03.2015 occurred in the mid night at 12.30 a.m. Due to the said accident, the deceased Nagraj S/o: claimant No.1 in MVC No.1059/2012 died on the spot and the claimant in MVC No.1185/2012 has sustained grievous injuries is also not in dispute. It is also not disputed that the respondent No.4 was driving the Swift Car bearing registration No.KA-32/M-6282 at that time and respondent No.1-Mallappa was the driver of the Lorry and the accident was occurred on the middle of the road as per Ex.P7.

¶169

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Admittedly, the Mahagaon police have

¶171

registered the FIR and the charge-sheet came to be filed against the driver of the car. It is also not in dispute that after the accident the very driver of the Lorry said to accompanied the injured and the deceased person to the Solapur Hospital for providing treatment. The driver of the lorry was not given any complaint, whereas he has said to be went to the meet with the owner of the lorry, whereas the cleaner of the lorry has lodged the complaint. It is also seen from the records that the PW.2 injured said to be given statement before the Solapur police which was recorded by the police and in turn the same is sent to the Mahagaon police station. The statement of the PW.2 was not the part of the charge-sheet filed by the RW.3. It is also seen from the records that the driver of the lorry was not examined before the Court. Though, the cleaner of the lorry given statement and first information before the police, while implicating the driver of the car as an accused, but he has not been examined before the

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Tribunal, except examining the investigating officer as RW.3. The investigating officer who was filed the chargesheet against the driver of the car. Admittedly, the statement of PW.2 which was stated before the Solapur police station was not considered by the Investigating Officer while filing the charge-sheet, which is come in the cross-examination of RW.2.

¶174

The PW.2, who is the eyewitness to the accident, who has given statement before the Solapur police station as per Ex.P.21. Admittedly, the respondents’ side RW.2 examined who is the owner of the car. Both the evidence of PW.2 and RW.2 are corroborates each other, while they are proceedings in the car at about 12.30 a.m. there was another 04 wheeler vehicle came from opposite direction with high power flash light, due to which he is not able to take the vehicle to the left side, at that time they found the lorry belongs to the respondent No.1 was parked in the middle of the road without any indicator or without any parking light. This factum of issue in respect

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of evidence of PW.2 and RW.2 has not been contraverted by the respondent No.1 and cleaner by entering into the witness box by giving rebuttal evidence. The evidence of PW.2 and RW.2 were categorically stated that the accident was occurred due to the parking of the lorry on the middle of the road, without any indicator. Apart from the said contention, it is further contended by the insurer of the Lorry that it was a moving lorry and the car came and dashed behind the lorry. In order to prove the said contention, except the first information lodged by the cleaner of the lorry, the driver was not given any evidence and even they are not examined any independent witnesses from the locality or insurance company also not conducted any private investigation by examining any independent witnesses to show the said accident was occurred purely negligence part on the driver of the car, but the lorry was not parked on the middle of the road. The Ex.P.7 which clearly reveals that the accident was occurred in the middle of the road. The parking of the

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vehicle in the middle of the road and evidence of the PW.1 and 2 is not disputed by the driver and cleaner of the lorry by examining before the Court.

¶179

It is also pertinent note that the driver of the car was said to be acquitted in the criminal court in the criminal case. Though, it is well settled principle of law that the finding of the criminal court in the criminal case whether it conviction or acquittal which is not binding on the Tribunal in the civil cases. However, the facts and circumstances of the present case, the accident was occurred in the middle of the road and of course the evidence of PW.2 and RW.2 was not at all disputed and there is no effective evidence, except the evidence of RW.3 who filed the charge-sheet, who has stated that on the say of the cleaner the charge-sheet came to be filed by the police. Therefore, the evidence of PW.1 who is the claimant and other documents are clearly show that the accident was occurred due to the parking of the vehicle and also the driver of the car who is said to be went behind the lorry, he could have also seen the lorry after

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looking the opposite vehicle and could have avoided the accident. But he also came in the high speed and without observing the vehicle parked in the middle of the road. Therefore, we found that the driver of the car was also contributed negligence towards the accident apart from the respondent No.1 who parked the lorry in the middle of the road. Therefore, considering the evidence on record, the Tribunal by elaborating reasoning has rightly held that the accident was occurred purely rash and negligent on the part of the driver of the car as well as the parking of the lorry by its driver.

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Though, the learned counsel for the respondent No.1 contended by relying upon the judgment of this Court in the case of the Nishan Singh and Others Vs. Oriental Insurance Company, (2018) 6 SCC 765, where the Hon’ble Supreme Court at Para No.12 has been considered regarding giving a distance between the two vehicles and taking into consideration Regulation 23 of the M.V. Rules, 1989. The said Para No.12 which reads as under:-

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“12. The finding so recorded by the Tribunal has been affirmed by the High Court, by observing that the evidence was clearly indicative of the fact that the Maruti car was being driven in a rash and negligent manner, which was the cause for accident of this nature and resulting in death of one of the passengers in the Maruti car. The Maruti car was driven by none other than PW.2 Manjeet Singh. In his evidence, he has admitted that the subject truck was running ahead of the Maruti car for quite some time about one kilometer and at the time of accident, the distance between the truck and Martui car was only 10-15 ft. He has also admitted that the law mandates maintaining sufficient distance between two vehicles running in the same direction. It is also not in dispute that the road on which the two vehicles were moving was only about 14 ft wide. It is unfathomable that on such a narrow road, the subject truck would move at a high speed as alleged. In any case, the Maruti car which was following the truck was expected to maintain a safe distance, as envisaged in Regulation 23 of the Rules of the Road Regulations, 1989, which reads thus;

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“23. Distance from vehicles in

¶187

front.- The driver of a motor vehicle moving behind another vehicle shall keep at a sufficient distance from that other vehicle to avoid collision if the vehicle in front should suddenly slow down or stop.”

¶188

The expression “sufficient distance” has not been defined in the Regulations or elsewhere. The thumb rule of sufficient distance is at least a safe distance of two to three seconds gap in ideal conditions to avert collision and to allow the following driver time to respond. The distance of 10-15 ft. between the truck and Maruti car was certainly not a safe distance for which the driver of the Maruti car must take the blame. It must necessarily follow that the finding on the issue under consideration ought to be against the claimants.”

¶189

On perusal of the judgment, the facts of the present case the facts of the above said case are totally different, which is not applicable to the case on hand. Both the vehicles are moving vehicles as per the evidence of PW.2 and RW.2 and the absence of evidence from the

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respondent No.1 and complaint before the police. Therefore, the contention of the learned counsel for the respondent – insurance company cannot be acceptable that there is no negligence on the part of the driver of the lorry and liability shall be fixed only on the driver of the car. On the other hand, the Tribunal by considering the evidence on record has rightly held that the accident was occurred due to contributory negligence on the part of drivers of both the vehicles. Therefore, we do not find any error or illegality committed by the Tribunal. Accordingly, this Court answered the point No.1 against both the appellants.

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As regards to the computation of the compensation, the Tribunal has considered the evidence on record and rightly calculated the income of the deceased who is said to be a Doctor by profession and he has also earning good income and paid the income tax. Such being the case, the question of interfering with the quantum of compensation does not arise at all. Though, the learned counsel for the respondent No.2 contended that the income tax should be deducted, but looking to the

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facts and circumstances of the case, there is no rebuttal in the evidence regarding the cross-examination in respect of payment of income tax or any documents. Such being the case, the question of interfering in the quantum of compensation does not arise at all. Therefore, point No.2 answered in the negative. Accordingly, we proceed to pass the following;

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O R D E R

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i) All the appeals filed by the appellants are hereby dismissed.

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ii) The amount in deposit shall be transmitted to the Tribunal along with copy of this judgment and Trial Court records forthwith.

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Sd/(K NATARAJAN) JUDGE

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Sd/(VIJAYKUMAR A. PATIL)

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MSR,KJJ List No.: 1 Sl No.: 21 CT: PS

Vikas Rao v. Sharanayya and Ors.

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Vikas Rao v. Sharanayya and Ors.

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