Sri M R Narasimhaiah vs Sri N M Rajpal (Huf) on 20 June, 2011

[Cites 1, Cited by 1]

Karnataka High Court

Sri M R Narasimhaiah vs Sri N M Rajpal (Huf) on 20 June, 2011

Equivalent citations: 2012 AAC 245 (KAR), 2011 (4) AIR KANT HCR 334, (2011) 4 KCCR 3064, (2013) 2 ACJ 1012

Bench: K.L.Manjunath, H.S.Kempanna

 

I

IN rag HIGH COURT 03 KARNATAKA AT BAKGALORE
DATED THIS THE 20" DAY 0F JUNE, 201: E]_
PRESENT
THE HON'BLE MR. JUSTICE K.L. MAEJ§Egiﬁ:_A
ANB _ _ . K .
THE HON'BLE MR. JUS?I§E ﬁpﬁf KEMP%§§%V¢E
MISC' FIRST APPEAL ﬁ$;§3}3/ﬁ00é {M§;
vi" §£ﬁ, _ _ 5 _._
MISC. FIRST APRE§®,ﬁﬁLi35§?i§D§ (MV)
BETWEEN: Hi4ﬂ;Xf.   *7'T; T»Hwf
MFA No §7Iéfé§66Q i ﬂ""
M.R.Nﬁ%a$iﬁﬂai%$ﬂsk§LRamaiah,
46 years; 0cci D;xver'{KSRTC)
R/at B.Hp§4?,aHospet Rdad,
Magadi Town, Eaggalcxe Dist. .. APPELLANT

§Ey:§dVocaEe-Sri.Suresh M.Latur}

Vgm;"u

;.=x.g.Rgg§a: {HUF};

Qac: Business, R/at §O.?7,
V JCW,Read; United Building,
"_Banga1ore~2'

 f2;V?h& Regionai Manager,

 Qriental Insurance Cg. Lt§,,
.W§§.§éX§§; Lea ﬁomglex,



Residency Read,
Bangalore~25. ., RESPONDERTS

(Advocate Sri.B.C.Seetharama Rae for'§¥23ﬁ .

(Respondent~1 .. Notice dispense@"#iﬁh}';

BETWEEN:

MFA NO.2369/2006:

The Oriental Insurance SQ. Lt6,° Residency Road Branch, _'_A .

Through its Regional Qfficeg Leo Shopping Complax, . g No.44/45, Residency Road, ," g.' Bangalore. ' T 7* R/by its Asst, Managetx, .. V' 2;

K.Jayaram v4j', 1 '*, _%j;_'.>' APPELLANT AND: ,.~- " -------- 'M M.R.Néra$imhaidh sjépRamaiah, 46 years{ Qc¢:_Drivég"(KSRTC) R/at a,N¢;gv, Hosapep"Road, Magadi yawn, Bangalore Dist. ,. RESPONDENT : " {By iﬁvécate S£i.Suresh MgLatur) AThese'ﬁQé REAS are filed unde: Segei73{1} cf MV Act against the judgment and award éated "*1 sg1g,2oo5 passed in MVC No.1414;2ao2 on the file '»'a§V XIII Addls Judge, Court of Small Qausesg ._ ékembgr,' MAST, Bangalcre, paxtly allowing the "p_ciaim petitisn fer cempensation and seeking .,V fenhahaement Qf campensatica (in M?A =,A'§§.5?13f2§§§} amdF awarﬁing sf campensatiém Sf §% 3 Rs.?0,8G0/--- with interest at 6% 'p.a. frong the date of jpetitien till the date of deposit7 of compensation amount in the tribunal (in %ﬁEA No.2369/2806). '» *' "

These two Appeals are ceming en fer fﬁnele "

hearing' this day, MANJUNATH_ J,' deliveiedﬂ_the following:

J U D GVM E N T_' MFA No.57l3/20$6 is éeied by {he eiaiment seeking enhancement 5% gomgeeeeeien awarded by the MAcT., §a§g@lo§éﬂ"e:te&fe§e1efeo05 in MVC No.1414/2oQ2eﬂ,$eA_ﬁefésggfiﬁoﬁ gs filed by the Oriental -:§§e}$n;9--e¢eﬂ 'Ltdf -------- challenging the liabiliey *§aeei§e» §g gt by the tribunal' Therefore ﬁhese fwd ep§eals are heard together. "e2:'.v§eiiewing facee are not in dispute in these aP@ee2seaf%3 T;> £1a;maeﬁA is a driver of KSR?C bus. Sn ueee1§L;2,1§9§ he was driving the bus from Bangalore te®eEei?erthu:= ene Chiteor»?almaner read. when wake bee reached Lekehmeieh Keedrige there was e 4 head an collision between KSRTC bus of which Claimant was driving and lorry bearing Ne.K§¥Q1- 3981. In the accident lorry ﬁriver eieefeajéné. spot. Charge~sheet was registered e§e;ﬁet_teeuV' claimant and there were several} ether.*c&aims' lodged by the passengers wpo we§e'in tee ﬁes; 3* It was centeneee by tee elaieeht beat the accident occurred eﬁV aecgeﬁtmleﬁL'tee rash and negligent dreviﬁg qfWﬁﬂeliﬁﬁ§f'e§ its driver. But the " the accident did not """ "neeet%@0n* eeceunt* of the rash anﬂ negligeet"d:ieee§ﬂO§ ﬂee &river of the lorry but it was on aeeount of ﬁhe claimant. Befere the .~:r;beee;;' claimant, was examinedk as PW~l. He :eliede~gpeeeethe evidence of ?W~2 to 4. On behalf' of ftﬁe respondent; twe witnesses were éexamiﬁeﬁﬂae RW~1 & 2; Tribunal eensidexing the «e:eei§ence let in by the parties; helé that the \_'eee;eenﬁ eeeurred en eeeeunt ef the centributery 'eeeeligenee of beﬁh ehe vehicles and the eeme wee _,/Q' / iy' 5 apportioned at the ratio of 50:50 and*ehat a see * of Re.70,800/~ was awarded *es* ooeﬁeeeaéioe payable by the respondentefe Q §his toedege ﬁe. called in question iﬁ_ this 'eppeal5eby."theWt claimant seeking enhancemeet,>_Ree§oeeeets have also filed separate'eﬁpeelﬁooﬁteoﬁing that since the accident occurred oe.aeeoﬁﬁ§ eg the rash and negligent drieeeg of :tee"voiaimaht, he is not entitled to maietain a elaxmﬁpetition. 4, Haeing' heeﬁof the zooensel for the parties and on perﬁsal"ofWieeet&s, in order to ascertain whether _there were' any other claim petitions ittiodgedtibyxxthe Weictims of the accident, we 'ei£eote§¥$n£;Semangala A Swamy, learned standing oouneel to $SRTC to ascertain whether any claims made end whether liability is saddled on 'W'the,KSRTC or the owner of the lorry' Today; te$etfSemangala A Swamy submitted that three claim w'§etetiene were lodged. in respect ef the same A "~eeeident axe Eiebiiity has been saeéled ea tee 6 KSRTC and KSRTC has satisfied the award. These facts are not in dispute.

5. Main contention of the cﬂaimantfEe£e£e"ﬁ$A is that the tribunal was required to 551$ ﬁhat the accident occurred due to thé.éole"ﬁeg1igen¢e_ of the driver of the v._a:;g:V'-.:£'2-gét"' ethee compensation awardgﬁ- i9;"u§f*iy?§% Hsidei Per Contra, learned c§u§ge;f7gﬁ§§afi¢g for the insurance ceméagy §"§¢§£¢§$sexet§;t purposely claimant d;&%ge£ﬁ§£e¢ﬁcee£ﬁe.¢gerge~sheet; FIR and the~skeﬁeh?§ﬁ.Igleﬂesaweocuments had been produceee by 'ee$;e:s$§eee!£hey would go against him, purpeeeﬁy he diﬁeﬁot produce the documents, xﬁpuneel appearing for the insurance company has §:edﬁ3edecﬁafge»sheet, FIR and also the sketch drawn by t§e §elice at the time of investigation e, 'and eonfenﬂs that K3RTC bus which was being »e:§#i§eh_ by the claimant went beycnd the mid '<,j§e:::on ef tﬁe read te its extreme right side end deeheé against an enesoming ierry, as a :19» result driver' of 'the lorry died. on the spot.

Therefere, claimant being a tortwfeaser ie not entitled to maintain a petition againsﬁ the eew going lorry. In the circumstances, heaieﬁuesee, ° the court to ailew the appeal an&e&iamise ﬁhe claim petition.

6. Having heard the ceuheel for £he.§arties, we have to consider ethef'foliewing points in these appeale:e'g

1. WheEﬁei*=ﬁheaa¢IaiﬁantV_is a tort~feaser and_{i§V he. isﬂ a 'tort~feaser is he , entitleé to maintain a claim petition? 2,awhethe£ﬁthe Ceﬁ§ehsation awarded by the t;ibunal*regﬁ;fes to be enhanced or net? n0*iQ"'«i;.n._..dispute that en the date of ethe ace;&e§e claimant was driving the KSRTC bus fremeeBae§aie£e to Melvarthur via Chiteer~ '§almaeef} and the claimant was driving his '* eeaiele from Eelmaner tewards Chitoer. on the V*, "spet ef the accident, reaé. which was running Vf:em west ee eeet hee a deey eerve tewazds S northern side. But unfortunately claimant who was driving his bus without observing theteerve towards his earth has straightaway proeeede§?ee¢ a result of which he dashed againstr tee' oﬁ&u':

coming lorry, in the impact &ri§e:'ef the;;5g;§ dieé on the spot, VSketcﬁﬂ is pfeéﬁeeditaste Annexure~R6. By looking ﬂete §neexﬁrefR6 one can visualise how tee aeetﬁeet BBS tetee place. The claimant centen§$tth§€"yﬂgeA§§#ondents have not examineﬁtﬂeey tpeteoeﬂwteewehow that the accident $gc§£;§§T»§§5f$§c§ﬁ5g"'of the rash and negligeetntdtiegeg e¢f :ﬁeW»ap9e1lent--eleimant; But the 3ﬁFél}§§ﬁeQ§§"%ergotten that the driver of the»lere§,ﬁiea en the spot, there could be no Q ether eye witness to examine; As a ﬂatter of fact}'iﬁ respect of the injuries sustained in 't" the sai§*3eeident and the death occurred; three u"Qelenn.§etitions were lodged against the KSREC °_ee§».the eppelient hezein ene net against the tveeeer ané ineerence eemgeng ef the lorry' whee Wm x \ 9 the employer of the appellant made submissiene before this court that three awards were geesed against the KSRTC and all the three agexesQ§egé. been satisfied by the KSRTC, it is_diffiee1t teu.i accept the contention of [thei eieieenti that accident occurred due ete rash" and 5negligeﬁt W driving of the driver 5&2 the ieggyi it It is curious to note ttet iee§eiieet_ wee xis the claimant before the tzibueei §§ﬁ ﬂee approached this court etetieg that the eeeident occurred on account of tee geek eee ee§1i§eet driving of the .oz:y« did not disclose that E'.

g. .0'.

driver aef ttee chargemsheeté wesWffile&* against him. On the contrary; ne polite records were produced by the 7Vep§ei1eﬁteeleimant:' But these decuments ere ﬁreeueee by the insurance cempeny cf the lorry z't ehieh, diseieeee the conduct of the appellant, »ff"¢eeei&etieg the sketch and the ehargeesheet "filedieageieet the appellant ene that three :eeetde were yeeeed eely against the e§§ellent'e EU employer, we are of thee e§inieni'ﬁ§a$e ﬁhe accident did net occur on,'e¢couﬁt =ef';theg negligence of the driﬁe§"5of tbemuier§y:w": If"

really there were te be coeiributery_ee§ligence or accident had oceﬁriedxonfeeeoent of the rash ané negligent vdrivin§veofV:the "e:iver ef the lorry, employe:'Qf ﬁhe"eppellent«KSRTC would not have satiefiedi the ewer§.:v .On the contrary atleast KSRTC would hewe=preferred an appeal on the greﬁﬁe teat §he eeéidee£ occurred atleast on account Kef_ the' ceﬁtfibetory* negligence of' the e ivers of beth:t£e*#ehieles. In View of the _eboveé&ieeuseicn5 we are of the opinion that the A\aceident.die,not occur on account of the rash éna jﬁegiigeﬁt 'driving of the driver of the lerty, it_ie due te rash and negligent driving 'ef the egpellant and therefere appellant has ts u e§e"txeaEed as tort~feaser. If the accident is ,M;ﬁe§eeeunt of the reek and negligent ﬁriving cf Vﬂ*t§e; e§§eiieet§ he eaﬁnet maintain a eieim I 3 company of the lorry as they earefxne .weyu concerned with the aCcident¥} e{eeIﬁ5x ﬁhé circumstances; we hold. point xﬂéwk against tfheF appellant~claimant and we farther ﬁelﬁ Eﬁef the claim Petition la¢§ed"N"§¥:e,hiﬁ' "wee net maintainable. R 'V 2» '. .

In View ef our"fie§ﬂng,§ﬁ.§eint No.1, we are of the Qieeiﬁheﬁ ﬁgepégig ﬁé necessity for us to consider the ceﬁpeﬁeaﬁion payable to the claimant/appe1;ant,=.'

8. In ﬁﬁe "V;esﬁ;£,5 appeal filed. by the *eppe;ian§§elaiﬁan§,v seeking enhancement of 'H;o¢pensat1sn"v_in MFA 5713/2006 is hereby a:s§isséefa'§"ﬁFA §o.2369/2006 filed by the _Qrieﬁtalﬂ.I§eurance Company is hereby elloweé; ' "e ﬁ§erebyeethe claim getitien ledged by the "ﬁezgieant in eve Ne.1414/2392 en the fiie of R".¥$¢¥.; Beegaiege is hereby éismisseé. if Amount if any in deposit in MFA uo.23a9/2096 is ordered to be refunded s;.¢§.._ '«a:;:e appellantwinsurance company.

In View of the dismissal _Gf fa§§éals;*V Mis<:.CVL.21989/10 filed in M§:'fA :2.3A§9"';<_5é._.' a§eVsvv.L}A__;ie1t.' arise for consideration,9.Accdrdingly} t§e $ame_ is dismissed as having bec$m%:iﬁf£ﬁCﬁ§§ﬂ\; We appreciate V%$e' %5§i§@?ﬁ%e reﬁdéred by Smt.Sungala A Swamy in ﬁhégé éﬁéﬁﬁlﬁ. We place our appreciatiﬁQB§n_§eéQE§L': " A LL % _%;i,_ _ .m AAAA §§§@§ :::._!é6§'?::

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