Karnataka High Court
The Oriental Insurance Co Ltd vs Chennappa Shettigar on 16 December, 2008
Equivalent citations: AIR 2009 (NOC) 1419 (KAR.), 2009 (2) AIR KANT HCR 458, 2009 A I H C 1898, (2009) 3 KANT LJ 267, (2009) 3 KCCR 1575, (2009) 4 ACC 406, (2009) 4 ACJ 2600
Bench: Deepak Verma, K.Ramanna
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'THE ORIENTAL INVSURANCE 'co :.::'1:)__
VARDHA B§eA'Nc§:{;'1:MAr§ARAaaTRA STATE THROUGH
ITS REGIoi~JAL_0FFi{:E, LECJVSI-IOPPENG
COMPLEX, N0.4:4l4-5, *EéESI'D_EN.,Cj:i.' ROAD
BANGALROE 4.25,. RE? 3'? '
ADMINESTRATIVEVOFFICERV ' ~
K GOVINI}A R_A.JAN;-. _ V' '* APPELLANT
* , (Iij{°Sr;,'-B.SEETHiiRAMA RAG, ADV.)
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1 '.cH13:NNAi%PA'~sHE'rrIGAR
. s,f__0. APPUR SHETTIGAR
_ 5SYEA.RS* "
R]AT"VE:.EVING, MOODUTHOTA
= BELLAIRU VILLAGE
HAIBEANGADI POST
MANGALORE TALUK
' '~ RATHNAVATHI
S/O. CHENNAPPA SI-IETTIGAR
50 YEARS
R/AT VEEVING, MOODUTHOTA
BELLAIRU mamas g
HALEANGADI POST "$5;
MANGALORE TALUK
3 NATIONAL INSURANCE co LTD
2ND FLOOR, GANESH BUILDING;
B.C.ROAD '
BANTWAL TALUK A
4 DINESH POOJARY _
s1 0. SHANKARA POOJARY '
KALLAPU, PADUPANAMBUR 13E1;LA112U _
MANGALORE'f'£1L_UK.l._ . ff-...v.___RESPONDENTS
(By Ms. G§1NAsHEE'i,A.'L;1'<--§'0RV" V. ' _ Sri P PRABHAKAR £5 14312; GIR%;DHA.R.~ ADV"S'."' ' 1 A "*Fr)_R':a-1'«_Ais:-13 R-2, SR1' A. N. '»,ADv. F101?' Ra) , fir__ *_ *_*_* 1151153 _1.11%*A;'FI:LEp UjS 173(1) 01:' MV ACT AGAINST THE JUDGMENT %'A1~m AWARD BATES 19.08.2004 PASSED IN we 151411999 .(iN THE FILE OF THE PRL.DIS'l'F:.'ICT JUDGE 85 ..%MAA1~1;M.I,w.3ER, ~ _ :MAC'I'-I, mg, MANGALORE, AWARDING , -£:.C:§fpENsAT1oN 01: 123.3, 10,500/-- WITH INTEREST AT 6% RA. THIS MFA COMING on FOR FINAL HEARING THIS DAY, ~ ..__1)r.mf'1iAK VERMA, .:., DELIVERED THE FOLLOWING:
where-as I.A.No.9 filed by the appellant for deleting the names of owner and the appellant fi'OII1 the array of zespondcntaj was rejected. Thus for all practical purposes, the c}a3man' ts would be treated as one filed under Act.
7. Learned counsel for t)efoné V us that in the light of avszjnents-*'*1I;sfl;d.éV' "by the ' and especially after conversion uacbf filed oniy under Section 163t~ii"'cf have been fastened on the appellajit. ' that in view' of admitted position as ap§e,g_nV%t'tagVVfi§mv no actionable clam!" Would _____
8. iattétly étijfittended that in any case no negligence could have attxiftbhtited against the lony which was parked on the left ofttthe Consequently no could have been £<t_$*tc£x¢d' (it; the appellant. "R
9. No doubt it is true that this appellant was of 9 respondents subsequently, but this did': i prayer for examining the driver of the As ;
and averments made in the pefifioii'Vi'irii1'd the erqaiiable on record, it is amply proved in the middle of night at aboait Them is nothing on record tvas parked on the left side of the show that lorry was parked. No'b1i: :k31f[;g the lorry or the parking lights were on, negstef'
10. It is a matter oficoinrrion knowledge that in night on account of the orimeoming vehicie, momentarily it becomes diti:icu1it.A_rtoV is parked on the left side of the mad. °'--~v'1T)Itiver of44the_oot.heriirehic1e pmsumes that the left side of road is .._r'_j"jaa.e_ar1t fiom*wfh'em he can pass through comfortably, little realising may be parked on the left side of the road. That is ' mtist of the accidents take place in night. It in this View of the matter, we are of the considered opinion that there was contributory negligence on the part of driver of the lorry. If there was contributory negligehcebcn ' f obviously liability has to be fastened oxt-._t.he_»' V
12. Profitably we may quote ptoirtéitan of the Act, which reads as thus: . _ "Stationary ' No, or in charge of a .motor:.vehic1eV cr allow the vehicle :rem;w.in€ sefiow " any public place, :ixiver's seat a PCTSQQ the vehicle or unless f been stopped and a brake '£1-r such other measures takezx v"as..hh to VV'enet;ieA..."~~tl1at the vehicle cannot accidentetfly hput: in motion in the absence of " vtlic éfiriverf"
13. thetfejis nothing on record to show that on the driver vv°_sea,t,V a petfigiiettlfity licensed to drive a lorry was available. That .1 ..}f1atve._been pmved only if driver of the oflending buy bad a witness, which he did not do so.
Evidence of P. W.1 Chennappa Shettigara, father of deceased P.W.2 Kumar Shettigam, an eyewitness Show that accident had taken place near Surathkal Post Office, which falls within the Municipality area. Thus provision of iclcyant ' i. application to the facts of the case.
15. Karnataka Motor Vehicles = (if 2 14 relevant for the pmposgs L. _ a All i '214. Use of lamps iihign (2) Corporation, :if.a}motor vehicle is at which lights are or not to cause danger organ-zltuc to other users of the mad, njbrtjcze for the motor vehicle to As sub--mle, it is mandatory on the part of vehicle iwsfliiarited in the night to put on parking lights or some to Show that vehicle is parked. There is no such e'vidc'z1c:e:
' ~VaV;é;iiiablc on mcord that in the oifendiiig lorry any lights were put or in blinkers were there to Show that the vehicle was parked. «f'f'\g;-'~f:S
17. Thus the irresistible conclusion that We"ea:.fi: is .
driver of the lorry has also equally conteihuteel ' If that be so, then the vehicie being _1'nsu.fe:i_ 'at. the time with the appellant, obviously erzor in fastening the liability of it" :9 theseitteof 51°" r-9%.
18. In the light of foregoing VdL.i$(:ussio;1;'x§#_ev of the considered opinion that there2_'Vi§eA'y;;o'VzI:;é1it§of the appeal. it is accortrlinglyg ' the cost of litigation thmughout; CoufiSe3*fs:..~ if certified. The amount deposited by' stand transferred to the conceII1eci§QTribuna1.V" ~ V " ~. " in 'V ' . . . . . E sa/-g Judge Sd/-V-__ Judge >e"sfib/