Karnataka High Court
Smt Sheetal Naik @ Sheetal Nayak vs Smt Chandra Prabha on 25 September, 2020
Author: S.Sujatha
Bench: S.Sujatha
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF SEPTEMBER, 2020
PRESENT
THE HON'BLE MRS.JUSTICE S.SUJATHA
AND
THE HON'BLE MR. JUSTICE E.S.INDIRESH
M.F.A.No.6913/2016 (MV)
BETWEEN :
SMT.SHEETAL NAIK @ SHEETAL NAYAK
W/O LATE PRADEEP MOHAN NAIK
AGED ABOUT 33 YEARS,
OCC:HOUEWIFE,
R/AT NO.353, K.R.LAYOUT,
7TH CROSS, J.P.NAGAR 6TH PHASE
BENGALURU-560078 ...APPELLANT
(BY SRI SURESH M. LATUR, ADV.)
AND :
1. SMT.CHANDRA PRABHA
W/O P.S.GANESAN, MAJOR,
11-E, WALARAI GATE
YELLUR ROAD, SIRUMOLASI POST
TIRUCHANGONDE DISTRICT
NAMAKKAL, TAMILNADU
2. THE REGIONAL MANAGER
THE NATIONAL INSURANCE CO. LTD.,
SUBBARAM COMPLEX
M.G.ROAD, BENGALURU-560001
3. SRI MOHAN NAIK
S/O VENKATARAMAN NAIK
AGED ABOUT 83 YEARS, OCC:NIL
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4. SMT.SHANTHI NAIK
W/O MOHAN NAIK, MAJOR,
BOTH ARE R/AT
OPP. KENGAL PARAMESHWARI TEMPLE
DEVARABAVI POST
TORQU TALUK, KUMATA DISTRICT
UTTARA KARNATAKA-581343. ...RESPONDENTS
(BY SRI B.A.RAMAKRISHNA, ADV. FOR R-2; R-3 & R-4 SERVED;
NOTICE TO R-1 DISPENSED WITH VIDE COURT ORDER DATED
02.01.2020.)
THIS M.F.A. IS FILED UNDER SECTION 173(1) OF
M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED
12.07.2016 PASSED IN MVC No.3140/2014 ON THE FILE OF
THE XVI ADDITIONAL JUDGE, MEMBER, MACT, COURT OF
SMALL CAUSES, BANGALORE, DISMISSING THE CLAIM
PETITION FOR COMPENSATION.
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
14.09.2020, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, S. SUJATHA, J., DELIVERED THE
FOLLOWING:
JUDGMENT
This appeal is directed against the judgment and award dated 12.07.2016 passed in MVC No.3140/2014 by the Motor Accident Claims Tribunal, Bangalore City (SCCH-14) ('Tribunal' for short).
2. The claim petition was filed by the claimant- appellant under Section 166 of the Motor vehicles Act, 1988 ('Act' for short) before the Tribunal seeking -3- compensation for the death of Sri.Pradeep Mohan Naik in the road traffic accident which occurred on 30.03.2014 at about 4.30 p.m. It was averred by the claimant that the deceased while travelling in a car bearing Reg.No.KA-51-N-8783 along with her and her brother (driver), near Narasandra Lake, on NH-48, Mangalore-Bangalore road, met with the road traffic accident owing to the actionable negligence of the driver of the gas tanker bearing Reg.No.TN-34-C-7612 who suddenly applied brake without giving any indication/signal. As a result, the driver of the car in order to avoid the accident has taken the vehicle to the right, but the right side rear corner of lorry hit against the left side rear corner of the car. Due to the said impact, the deceased sustained fatal injuries. Immediately he was shifted to M.S.Ramaiah hospital and he succumbed to the accidental injuries while taking treatment in the said hospital. Accordingly compensation was sought for.
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3. In response to the notice issued by the Tribunal, the respondents had appeared before the Tribunal through their respective counsel. The respondent No.2- insurer has contested the claim, written statement was filed denying the petition averments. No written statement was filed by the respondent Nos.3 and 4. During the proceedings before the Tribunal, the learned counsel for the respondent Nos.3 and 4 retired with the permission of the court. Thereafter, there was no representation on behalf of the respondent Nos.3 and 4. Respondent No.1 had remained absent and hence he was placed exparte.
4. Based on the pleadings, the Tribunal has framed the following issues:
1. Whether the petitioner proves that Pradeep M Naik s/o Mohan Naik died in an accident occurred on 30.03.2014 at about 4.30 p.m., Mangalore-Bangalore road, near Narasandra Tank, Magadi Taluk, Ramanagara District, arising due -5- to rash and negligent driving of driver of gas Tanker bearing No.TN-34-C-7612?
2. Whether the petitioner is entitled for compensation? If so, how much and from whom?
3. What order or award?
5. The claimant-appellant was examined as PW-1 and one witness was examined as PW-2. Documents Exs.P1 to P20 were marked on behalf of the claimant. The respondent No.2 Insurance Company has examined the driver of the insured gas tanker as RW-1 but no documents were marked.
6. On appreciation of the material evidence on record, the Tribunal has dismissed the claim petition. Hence, the present appeal by the claimant.
7. Learned counsel appearing for the appellant argued that the Tribunal has failed to appreciate the evidence of the eye witness PW-1 in a right perspective -6- in deciding the aspect of negligence in causing the accident. The Tribunal has mainly relied upon the police investigation report ignoring the other positive evidence on record. Learned counsel submitted that the driver of the gas tanker lorry was moving in the right side of the road much against the Regulation Nos.4 and 5 of the Motor Vehicles (Driving) Regulations, 2017 ('Regulations 2017' for short). These aspects indicate the violation of the traffic regulations, the Tribunal ought to have awarded compensation fixing the negligence on the driver of the gas tanker lorry for causing the accident in question. In support of his contentions, learned counsel has placed reliance on the following judgments:
1. New India Assurance Company Limited vs. Yousurf Basha and another reported in 2015 ACJ 1216.
2. Bimla Devi & others vs. Himachal Road Trans. Corpn. And others reported in 2009 ACJ 1725
3. Divisional Manager, National Insurance Company Limited vs. New India -7- Assurance Company Limited and others reported in (2018) 13 Supreme Court Cases 126
4. Kiran vs. Sajjan Singh and others reported in 2014 ACJ 2550
5. Devram vs. Divisional Controller, Maharashtra State Road Transport Corporation reported in 1990 ACJ 622
6. H.S. Swarnalatha and others vs. Vice Chairman and Managing Director, K.S.R.T.C. reported in 2011 ACJ 990
7. Karnataka State Road Transport Corporation vs. A.R. Satishchandra reported in 1981 ACJ 138
8. Learned counsel appearing for the insurer supporting the impugned judgment and award submitted that the gas tanker lorry was moving slowly following the traffic rules and regulations. Indeed the driver of the car bearing Reg.No.KA-51-N-8783 in which the deceased was travelling caused the accident, dashing against the right rear portion of the lorry. The charge sheet was filed against the driver of the car. No -8- challenge is made to the said charge sheet. Police records speaks the negligence of the driver of the car for causing the accident. Accordingly, he prayed for dismissal of the appeal.
9. We have carefully considered the rival submissions of the learned counsel appearing for the parties and perused the material on record.
10. The point which arise for our consideration is:
Whether the Tribunal was justified in dismissing the claim petition fixing the negligence on the part of the driver of the car No.KA-51-N-8783?
11. It is not in dispute that the deceased Pradeep Mohan Naik died owing to the accidental injuries sustained in the road traffic accident in question. The seminal issue is the aspect of negligence.
In order to ascertain the same, we have perused the -9- original records and re-appreciated the evidence on record. PW1 - the wife of the deceased has pleaded in the claim petition that on 30.3.2014 at about 4.30 p.m., the deceased Sri.Pradeep Mohan Naik was travelling in a car bearing Reg. No.KA-51-N-8783, near Narasandra Lake, on NH-48, Mangalore-Bangalore road. At that time a gas tanker bearing Reg.No.TN-34-C-7612 was moving in front of the above said car in high speed, the driver of the tanker suddenly without giving any signal applied brake, as a result the driver of the car in order avert any accident took suddenly to the right, but right side rear corner of lorry hit against the left side rear corner of car owing to which the deceased sustained fatal injuries.
12. Surprisingly, in her evidence, PW1 has deposed that when they came near Narasandra Lake on NH-48 Mangalore-Bangalore road, at that time a gas tanker lorry bearing Reg. No.TN-34-C-7612 came in
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high speed with negligent manner from behind and has overtaken their car, came to the front side while moving so, the gas tanker lorry applied sudden brake negligently without giving any signal to the other users of the road. However, she has admitted that the police have duly recorded her statement. Her statement before the police which was recorded on 02.04.2014 from 10.30 a.m. to 12.30 p.m. would indicate that on 30.3.2014 at about a 4.30 p.m. the driver of their car in which they were travelling has driven the car in a rash and negligent manner with high speed, has dashed to the gas tanker lorry baring No.TN-34-C-7612 which was moving in front of the car, as a result the car was damaged and her husband who was sitting in the left side of the back seat sustained injuries. Her husband was admitted to Columbia Asia hospital as an inpatient but he succumbed to the accidental injuries on 01.04.2014 at 11.45 p.m.
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13. The inconsistencies found in the pleadings and the evidence of PW-1 vis-à-vis the police records, the charge sheet filed against the driver of the car would hardly inspire any confidence to accept the arguments of the learned counsel for the appellant that the negligence of the driver of the gas tanker lorry was the cause for the accident. It is obvious that the gas tanker lorry loaded with liquid gas would move in a moderate speed. Even assuming that the gas tanker has overtaken the car, the driver of the car would have maintained the sufficient distance between the vehicles. It is true that Regulation 4 of the Regulations, 2017 mandates that a heavy vehicle or speed restricted vehicle shall be driven in the left lane on a carriageway with several lanes in one direction, except when overtaking an obstruction or a slower moving vehicle provided that the driver shall return to the left lane as soon as he is safely past the obstruction or the slower moving vehicle, as the case may be. In the present case
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Rules of the Road Regulations, 1989 would be applicable which is in parimateria with the Rules, 2017. If the gas tanker lorry had overtaken the car and was moving in the right lane, before the said vehicle has returned to the left lane, the accident in question would have occurred. It is not established as to why the car was following the gas tanker lorry if it was moving on the right lane as averred in the petition or if the gas tanker lorry has overtaken the car and has gone to the right as deposed by PW1, in a double lane road then, what was the cause for the driver of the car to move towards the right lane and hit against the rear right side of the gas tanker lorry. The Road Regulations prescribes that every driver shall at all times drive the vehicle with due care and caution. The driver of the car was also required to drive the vehicle on the left lane, maintaining sufficient distance.
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14. It is well settled that the proceedings in the criminal court would ordinarily have no bearing in awarding the compensation under the Motor Vehicles Act which is a beneficial legislation. But at the same time the police records which speaks about the rash and negligent driving of the driver of the vehicles involved in the accident cannot be ignored unless controverted by substantial evidence. No such evidence is made available by the claimant-appellant to ignore the police records inasmuch as the negligent driving of the driver of the car involved in the accident. Complaint was filed by the driver of the gas tanker lorry at about 5.45 p.m. on 30.03.2014 alleging actionable negligence on the part of the driver of the car. Surprisingly, driver of the car has not been examined to dispute or deny his negligence. Acquittal of the driver of the car in the criminal proceedings would not disprove his negligence. Tribunal has to independently assess the evidence placed before it.
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15. We have perused the judgments referred to by the learned counsel for the appellant. In New India Assurance Company Limited supra, in the context of the offending vehicle being parked in no-parking area it was held that rough sketch of the site shows that the motor cycle came from extreme left side of the road and hit the truck which was parked in no-parking area without taking any precautions like switching on parking lights or keeping some stones around the vehicle during night time particularly when the area was not properly lit. Thus, it was held that the driver of the lorry was more negligent in parking the vehicle and contributed more to the occurrence of the accident than the rider of the motor cycle.
16. In Bimla Devi and others supra, the Hon'ble Apex Court while considering the negligence in the context of the alleged negligence of the driver reversing the bus at the bus stand without blowing horn
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had hit the police constable resulting in his death and the defence taken that the deceased had died in the previous evening as the dead body was found wrapped in a blanket lying at some distance from the bus thus taking a defence of implicating the bus, it has been held that strict proof of accident caused in a particular manner may not be possible to be done by the claimants; claimants were merely to establish their case on the touchstone of preponderance of probability; standard of proof beyond reasonable doubt could not have been applied and apparently there was no reason to falsely implicate the driver and conductor of the bus. Accordingly, it was held that the driver of the bus was negligent and responsible for the accident.
17. In Divisional Manager, National Insurance Company Limited supra, it was urged by the insurer of Maruti Car that driver of tanker all of sudden applied brake, as a consequence of which,
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driver of Maruti Car, deceased, was put in such a situation that car banged against tanker and accident occurred. Per contra, insurer of tanker submitted that tanker was parked and driver of Maruti Car dashed against it. It was held by the Hon'ble Apex Court that the insurer of tanker was singularly liable.
18. In Kiran supra, while the claimants (including two minors as pillion riders) were going on a motorcycle to their village, a tractor collided with the motorcycle coming from the opposite direction and due to the impact, the claimants fell down and sustained grievous injuries. Accident took place in the middle of the road. The Hon'ble Apex Court has observed that motorcyclist would have taken sufficient caution since he was traveling with his two minor children and as there was no evidence of negligence on the part of motorcyclist, the Hon'ble Apex Court reversed the finding of negligence and held that driver of the tractor
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was solely responsible for the accident as he was driving a heavier vehicle.
19. In Devram supra, while considering the negligent aspect where the bus moved to the wrong side of its road and hit a cyclist boy coming from the opposite direction and his right leg was crushed under its right rear wheel, the Hon'ble High Court observed that when it was rush hour, the driver of the bus was expected to keep a proper look out and to keep the bus under control. Accordingly, the Hon'ble High Court held that accident was caused due to the rash and negligent driving of the bus.
20. In H.S. Swarnalatha and others supra, it was contended by the claimants that the accident occurred due to negligence of the bus driver. In that context, the Court held that sketch of scene of accident prepared by the police shows that accident occurred in the center of 15 ½ ft tar road. Site map indicates tyre
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marks of bus for 100 ft prior to and 120 ft after actual collision point which shows that bus moving from the opposite direction was driven at fast speed and its driver could not control and bring it to halt after seeing the tractor. Thus, it was held that accident occurred due to negligence of bus driver if not to the full extent at least to greater extent.
21. In Karnataka State Road Transport Corporation supra, the claimants contended that while they (rider, pillion rider and the lady sitting in the side car of the scooter) were going on a scooter from Bangalore to Mysore, suddenly K.S.R.T.C. bus came from the opposite direction driven in a rash and negligent manner and coming on the wrong side of the road, dashed against the said scooter. As a result, the side car of the scooter was turned towards the right and it was hit by the bus. The pillion rider was thrown out so also the rider of the scooter and the scooter turned
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turtle as a result, the lady sitting in the side car received severe injuries to the head and other parts of her body to which she later succumbed. The Court held that the accident was the result of rash and negligent driving of the bus driver and circumstances attract the doctrine of res ipsa loquitur.
22. None of these judgments are applicable to the facts of the case as the alleged offending vehicle in the present case is a moving gas tanker lorry which was carrying liquid gas and the car in which the deceased was traveling was behind the said tanker. Non- maintaining of safe distance coupled with the car moving with high speed in the right lane of double lane Road (NH-48) appears to be the cause for the accident as could be depicted from the material available on record. Surprisingly no spot sketch is marked as exhibit. Learned counsel for the insurer has filed the copy of the sketch along with the memo in the appeal
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proceedings while indeed supports the case of the insurer. Even if the said spot sketch is not considered, assessment of evidence placed on record as discussed above establishes that there was negligence on the part of the driver of the car and his negligence was the cause for the accident in question. As regards quantum, no arguments are advanced. We approve the quantum determined by the Tribunal.
23. It is pertinent to note that the deceased was the owner and insurer of the said car and her brother was its driver. Though the learned counsel made a feeble attempt to submit that the claimant was the owner of the car, no supporting material is placed on record to substantiate the same. On the other hand, PW1 has admitted in her evidence that the deceased was the owner of the car. Despite reasonable
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opportunity provided to the appellant to produce any material evidence in the present appeal proceedings to establish the policy coverage of the car if any, no documents are placed before the Court. We have no hesitation to confirm the finding of the Tribunal in this regard.
24. For the reasons aforesaid, we do not find any perversity or arbitrariness in the impugned judgment and award. We confirm the same.
In the result, appeal is dismissed.
Sd/-
JUDGE Sd/-
JUDGE Dvr: