Karnataka High Court
Smt.Iramma W/O Bhimangouda Patil vs Sri.Surendra on 31 August, 2017
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
M.F.A.No.23183/2009
:1:
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 31st DAY OF AUGUST, 2017
BEFORE
THE HON'BLE DR.JUSTICE H.B.PRABHAKARA SASTRY
MFA No.23183/2009 (MV)
BETWEEN:
1. SMT.IRAMMA W/O BHIMANGOUDA PATIL @ GOUDAR,
AGE: 45 YEARS, OCC: HOUSEHOLD WORK,
2. SMT.PARWATEWWA @ TIPPAWWA
W/O HANUMGOUDA PATIL @ GOUDAR,
AGE: 72 YEARS, OCC: HOUSEHOLD WORK,
3. SAVITA D/O BHIMANGOUDA PATIL @ GOUDAR,
AGE: 23 YEARS, OCC: STUDENT,
4. HANUMGOUDA S/O BHIMANGOUDA PATIL @ GOUDAR,
AGE: 22 YEARS, OCC: STUDENT,
ALL R/O MADARKHANDI, TQ.JAMAKHANDI, DIST: BAGALKOT.
... APPELLANTS
(BY SRI.N.L.BATAKURKI, ADV.)
AND:
1. SRI.SURENDRA S/O VENKANNA GADADI,
AGE: MAJOR, OCC: BUSINESS,
R/O MURNAL VILLAGE, TQ. & DIST: BAGALKOT.
2. RAGHAVENDRA S/O VIVEKANAND VAIDYA,
AGE: MAJOR, OCC: OWNER OF LORRY
NO.KA-31/190, R/O GADDANKERI, TQ.BAGALKOT.
3. THE BRANCH MANAGER,
NATIONAL INSURANCE CO.LTD.,
M.F.A.No.23183/2009
:2:
MELLIGARI COMPLEX, BAGALKOT.
4. SHRIRAM INVESTMENTS LTD.,
BRANCH OFFIE, NAVANAGAR.
... RESPONDENTS
(BY SRI.M.AMAREGOUDA, ADV. FOR R1,
SRI.SANTOSH B.MANE, ADV. FOR R2,
SRI.P.H.PAWAR, ADV. FOR R3,
R4 SERVED AND UNPRESENTED)
---
THIS MFA IS FILED UNDER SECTION 173(1) OF THE MV
ACT, 1988 AGAINST THE JUDGMENT AND AWARD DATED
26.09.2008, PASSED IN MVC NO.357/2004 ON THE FILE OF THE
MOTOR ACCIDENT CLAIMS TRIBUNAL NO.V, JAMKHANDI,
DISMISSING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING SET ASIDE THE IMPUGNED JUDGMENT AND AWARD
DATED 26.09.2008 IN MVC NO.357/2004.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The claim petition filed by the claimants under Section 166 of the Motor Vehicles Act, 1988 before the Motor Accident Claims Tribunal-V, Jamakhandi (hereinafter referred to as 'Tribunal below' for short) in MVC No.357/2004 seeking compensation of a sum of `15,35,000/- from the respondents towards the death of one Bhimanagouda Patil, the husband of appellant No.1, who is said to have died in a Road Traffic Accident said to have been occurred on 13.06.2003 was dismissed by the M.F.A.No.23183/2009 :3: Tribunal below holding that the claimants before it failed to prove that the accident in question had occurred due to the rash and negligent driving of the lorry bearing Reg.No.KA31/190 by its driver. It is assailing the said judgment and award, the claimants have preferred the present appeal.
2. The contention of the appellants in their memorandum of appeal as well the argument of the learned counsel for the appellants is that the Tribunal below failed to notice that the alleged offending vehicle was parked on the road without any parking light. Had the driver of the lorry put on the parking lights, then there would not have been any scope for accident. Under such circumstance, the Tribunal below was in error in holding that the claimants have failed to prove that the accident was occurred due to the rash and negligent act on the part of the driver of the offending lorry.
M.F.A.No.23183/2009:4:
3. The learned counsel for the appellants in his argument further submitted that the contention of P.W.1 was not properly considered by the Tribunal below and more particularly, her evidence that the offending vehicle/lorry was parked on the road as could be seen from the scene of offence panchanama at Ex.P6. He also submitted that Exs.P8 and P9 wherein the driver of the offending vehicle has pleaded guilty has not been properly appreciated by the Tribunal below. He has also relied upon two judgments reported in ILR 2002 KAR 893 and 2009(3) Kar.L.J. 267 (DB), which would be referred here afterwards at appropriate place.
4. The learned counsel for the respondents in their argument vehemently submitted that none of the eye-witness to the alleged incident was examined from the claimants' side. Even according to the claimants, one Sri.Tammanagouda was the pillion rider-cum-complainant in the criminal case, who could have been examined to M.F.A.No.23183/2009 :5: prove the manner of the accident. Admittedly, the sole witness P.W.1 was not an eye-witness to the accident, as such all her evidence is hearsay, the source of which is not proven. They further stated that the charge sheet in the criminal case has also been filed against the deceased rider of the motorcycle, but not against the driver of the alleged offending lorry. The learned counsel further submitted that it is not established that Exs.P8 and P9 pertains to the date of accident. Furthermore, even presuming that it pertains to the same date, still from the said document, it is not clear that as at the time of the accident, whether the said lorry had not put on parking lights.
5. The deceased Bhimanagouda is said to have riding his motorcycle along with pillion rider one Sri.Tammanagouda on the ill-fated day of 13.06.2003. While they were traveling from Ilkal to Hunagund at about 5 k.m. away from Ilkal town at 9.00 p.m., the motorcycle M.F.A.No.23183/2009 :6: was dashed to a lorry bearing Reg.No.KA-31/190, which is said to have parked on the left side of the road. In the said accident, the deceased Bhimanagouda sustained injuries and while under treatment succumbed to death. The appellants are said to be the dependents of the said deceased Bhimanagouda. The only witness examined from the claimants side before the Tribunal is appellant No.1/claimant No.1-Smt.Iramma as P.W.1. The said witness in her examination-in-chief in the form of affidavit evidence has reiterated the contention taken up by her in the claim petition. Regarding the manner of occurrence of the accident, she has stated that, at the time of the accident wherein the motorcycle being ridden by her husband Bhimanagouda dashed to the lorry bearing Reg.No.KA-31/190 at about 9.00 p.m., the said lorry was parked on the road without any parking signals or lights and without observing any traffic Rules and Regulations. Therefore, in such a situation, the rider of the motorcycle could not see the negligently parked lorry, hence he was M.F.A.No.23183/2009 :7: unable to escape the situation and dashed his motorcycle at the right side of the lorry edge and caused the accident. In support of her evidence, inter alia she got produced and marked copy of FIR in crime No.69/2003 of Ilkal Police Station as Ex.P2, a copy of the charge sheet filed by the police in the said criminal case at Ex.P3, Motor Vehicle Inspector Report at Ex.P5, scene of offence panchanama at Ex.P6, copy of the order sheet dated 21.06.2003 maintained by the Court of the Judicial Magistrate First Class (JMFC), Hungund in C.C.No.488(A)/2003 at Ex.P8 and copy of the charge-cum- plead guilty dated 21.06.2003 before the JMFC Court, Hungund at Ex.P9.
6. In the cross-examination of P.W.1, the witness has admitted as true that she was not an eye-witness to the alleged incident. She has further stated that she does not know the complainant-Tammanagouda. She also stated that she does not know the registration number of M.F.A.No.23183/2009 :8: the alleged offending vehicle, so also the accused in criminal case No.488(A)/2003. She further stated that she does not know from where she secured the documents produced by her in support of her evidence. However, she reiterated that the lorry was parked on the road without light. She expressed her ignorance to a suggestion that a false charge sheet has been filed against her husband by the police. She also denied a suggestion that she was deposing falsehood in the Court.
7. From the respondent-Insurance Company side, one of its officer was examined as R.W.1, who in his evidence though has not denied the occurrence of the accident on the alleged date, time and place, but has specifically stated that the alleged accident was caused due to the rash and negligent riding of the Hero Honda motorcycle bearing Reg.No.KA-29/T-9881 by its rider. He has also stated that the accident was due to the rider of the said motorcycle, i.e., deceased Bhiminagouda, who M.F.A.No.23183/2009 :9: himself dashed to the lorry, which was parked on the side of the road.
8. It is interesting to note that narration regarding the manner of occurrence of the accident made by both P.W.1 and R.W.1 in their examination-in-chief have not even specifically denied in their cross- examination. It is in the light of the above evidence led by the parties and documents produced, it has to be analysed the occurrence of the accident on the date, time and place as alleged by the claimants, was at whose negligent act.
9. P.W.1 in support of the occurrence of the accident and alleged manner of occurrence of the accident has produced and marked Exs.P1 to P13, among which, Exs.P2, P3, P5, P6, P8 and P9 are important documents to ascertain the manner of occurrence of the accident. Admittedly, the complaint before the police, based upon which Ex.P2-FIR was filed, was lodged by one Tammanagouda Bhavikatti, who has stated that he was a M.F.A.No.23183/2009 : 10 : pillion rider of the motorcycle, which met with the accident. According to the said complainant, the rider of the motorcycle who was deceased Bhimanagouda was riding the said motorcycle in a rash and negligent manner and in a high speed, it was due to his over speed and negligence he dashed to a lorry bearing Reg.No.KA-31/190 on its right side, which was parked on the left side of the road. According to the said complainant, due to the said accident, Bhimanagouda sustained injuries and succumbed to it on the same night at 10.45 p.m. According to him, the accident had occurred at 9.00 p.m. on the date 13.06.2003.
10. The police after completing the investigation have filed charge sheet as per Ex.P3 wherein also they have accused the deceased Bhimanagouda, the rider of the motorcycle as the accused for causing the accident. The offences charged against him are under Sections 279 and 304A of IPC. Thus, the documents upon which the M.F.A.No.23183/2009 : 11 : claimant herself has relied upon shows that the accident was caused due to the rash and negligent riding of the motorcycle by the deceased rider.
11. The learned counsel for the appellants gave more emphasis on Exs.P8 and P9. Both these documents are dated 21.06.2003 and they are the certified copies issued by the Court of JMFC, Hungund. Ex.P9 in its entirety reads as below:
"¥ÀæxÀªÀÄ ªÀUÀð £Áå¬ÄPÀ zÀAqsÁ¢üPÁjUÀ¼ÀÄ ºÀÄ£ÀUÀÄAzÀ EªÀgÀ £ÁåAiÀiÁ®AiÀÄzÀ°è
1. DgÉÆæAiÀÄ ºÉ¸ÀgÀÄ : §¸ÀªÀgÁd
2. vÀAzÉAiÀÄ ºÉ¸ÀgÀÄ : FgÀ¥Àà ¨Áå½
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¢£ÁAPÀ 14-06-2003gÀAzÀÄ _____ UÀAmÉAiÀÄ ¸ÀĪÀiÁjUÉ E®PÀ¯ï UÁæªÀÄzÀ°è §®PÀÄA¢ PÁæ¸ï ºÀwÛgÀ DgÉÆæAiÀiÁzÀ ¤Ã£ÀÄ ¤£Àß ¨Á§vÀÄÛ EgÀĪÀ ªÁºÀ£À (¯Áj)AiÀÄ£ÀÄß ¦ügÁå¢zÁgÀ ZÉPï ªÀiÁrzÁUÀ
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2) ¸ÀªÀĪÀ¸ÀÛç zsÀj¸ÀzÉà C¥ÀgÁzsÀ PÀ®A: 14 R/W 177 MV Act.
3) mÁåPÀì PÁqÀð ºÁUÀÆ E£ÀÄëgÉ£Àì vÉÆÃj¸ÀzÀ C¥ÀgÁzsÀ PÀ®A: 158 R/W 177 MV Act.
M.F.A.No.23183/2009: 12 : £ÉÃzÀÝgÀ ¥ÀæPÁgÀ F £ÁåAiÀiÁ®AiÀÄzÀ C¢üPÁgÀ PÀPÉëAiÀÄ°è ²PÁëºÀðªÁzÀ UÀÄ£Éßà ªÀiÁrgÀÄ«j CAvÁ ºÉüÀ¯ÁVzÉ. ¸ÀzÀj UÀÄ£ÉßÃUÉ vÀ¥ÉÆà¦àPÉƼÀÄî«AiÉÆÃ? CxÀªÁ «ZÁgÀuÉAiÀiÁ¨ÉÃPÉÆÃ? GvÀÛgÀ: vÀ¥ÀÄà ªÀiÁrzÉÝÃ£É ºÀÄ£ÀUÀÄAzÀ ¢£ÁAPÀ : 21-06-2003 eÉ.JA.J¥sï.¹.
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12. Exhibit P9 is continuation of Ex.P8, which shows that the Court of JMFC, Hungund based upon the guilt pleaded by the accused by name Basavaraj before it in criminal case No.488(A)/2003 has sentenced him to pay a fine of the `50/- each for the offences punishable under Sections 132, 14, 158 read with Section 177of M.V.Act. A part of Ex.P8 also shows that the concerned Circle Police Inspector had filed a petty case against the accused Basavaraj alleging that, when the police inspected the lorry bearing Reg.No.KA-31/190, they found that he had not put parking light while parking the lorry in the night on National Highway 13. Even after taking into M.F.A.No.23183/2009 : 13 : consideration that the lorry involved in the said criminal case was the very same lorry involved in the compensation claim petition and that the present Basavaraj shown therein was the driver of the said lorry at the relevant point of time, still the document at Ex.P9 is not clear that on which day and during which hours of the night, the said Lorry was found parked without parking lights. From Exs.P8 & P9, it cannot be inferred that at the alleged time of accident, which was at 9.00 p.m. on the date 13.06.2003, the said lorry was parked without its parking lights on. Neither Ex.P8 nor Ex.P9 specifically mentions or gives an inference that on the date 13.06.2003 at 9.00 p.m. which was the time of the accident, the said lorry was found without its parking lights on. This doubt further gets strengthened by the reason that, had the said lorry being parked without its parking lights on, then definitely the complainant before the police who was none else than the pillion rider of the motor cycle should have definitely stated in his complaint before the police about M.F.A.No.23183/2009 : 14 : the said lorry parking without its parking lights on. The complainant who could give a great detail of the accident including the manner and position of the lorry parked on the side of the road and the alleged rash and negligent driving on the part of the rider of the motor cycle also could have given the details of non-exhibition of any indicators or signal lights by that parked lorry and also about its parking position on the side of the road. Therefore, in the light of Ex.P2 & P3 which accuses solely the rider of the motorcycle for causing the accident, Exs.P8 & P9 would be of no help to dilute or weaken the inference that can be drawn from the evidence of P.W.1 and Exs.P2 & P3.
13. The learned counsel for the appellants also vehemently submitted that the scene of offence Panchanama, copy of which is marked at Ex.P6 mentions that the said lorry in question was parked half on the kaccha road and half on the tar road, at the time of M.F.A.No.23183/2009 : 15 : accident. No doubt in Ex.P6, it is mentioned so, but Ex.P6 being only a scene of offence panchanama giving the details of place of occurrence of the accident which assist the Investigating Officer in arriving at a conclusion regarding the alleged incident of accident and identifying the guilty party, the said document on its own and independently cannot be taken as a document establishing the entire incident. It is after collecting several materials during investigation starting from the complaint including Inquest Panchanama at Ex.P4, M.V.Report at Ex.P5, Spot Panchanama at Ex.P6 and P.M.Report at Ex.P7, the Investigating Officer has finally come to a conclusion holding that the accident in question has occurred solely due to the negligent act on the part of the deceased rider of the motorcycle himself, as such, he has filed charge sheet as per Ex.P3 only against the deceased rider of the motorcycle but not alleged any negligence on the part of the driver of the lorry. M.F.A.No.23183/2009 : 16 :
14. The learned counsel for the appellant in his argument relied upon two Division Bench Judgments of this Court. The first judgment is, Kumari Jyothi and Others Vs. Mohd.Usman Ali and Others reported in ILR 2002 KAR 893, wherein after observing that the accident in question had occurred about one hour after midnight, when a motorcycle driven by the deceased crashed into an unattended lorry and appreciating the evidence placed before it, the Court observed that the driver of the parked lorry was alone to be blamed as he had parked the lorry in the middle of the road without any sign or indication for other road users.
In the second judgment in Oriental Insurance Company Limited, Bangalore Vs. Channappa Shettigar and Others reported in 2009(3) Kar.L.J.267 (DB), after appreciating the materials placed before it, the Court observed at paragraph 10 as below:
M.F.A.No.23183/2009: 17 :
"It is a matter of common knowledge that in the night on account of glare of lights of the on coming vehicle momentarily it becomes difficult to see as to what is parked on the left side of the road. Driver of the other vehicle presumes that the left side of road is vacant from where he can pass through comfortably, little realising that any vehicle may be parked on the left side of the road. That is how most of the accidents take place in night."
With the said observation and confined to the facts of the case, the Court also observed that there was contributory negligence and liability was to be fastened on the parked vehicle also.
15. It is submitted that observations made in both these cases referred to above, were confining to the facts placed before the Court. In Kumari Jyothi's case (supra), the evidence of eye witness (P.W.5) had made it clear that the accident had taken place in the midnight at 01.00 hour, when it was totally dark and it was also established that the lorry was parked on the road without M.F.A.No.23183/2009 : 18 : any sign or indication to show that the lorry had halted on the middle of the road. Even the evidence of P.W.4 had also shown that there was a Pancha present at the time of drawing of spot mahazar regarding the accident and the panchanama shows that the alleged lorry was found standing in the middle of the National Highway-9 with a full load of sugarcane. The said witness has also stated that on both sides of the road there were several well grown trees and it was very difficult to see the parked lorry. It was further observed by the Court that nothing was elicited in the cross-examination of those two witnesses to show that the lorry was parked with any sign or indicator. It is in that background, this Court observed that it was satisfied that the driver of the parked lorry alone to be blamed for the accident.
Similarly, in Chennappa Shettigar's case (supra) also, it is based on the evidence of the parties including P.W.1-father of the deceased and P.W.2 an eye-witness, M.F.A.No.23183/2009 : 19 : the Court came to the conclusion that the offending vehicle was parked without any parking indicators or blinking lights on.
16. As already observed above, in the instant case, even though the claimant had an opportunity to examine the pillion rider of the motorcycle, who was incidentally an eye-witness to the incident, the claimant has chosen not to examine him. Admittedly, the claimant who got herself examined as P.W.1 was not an eye-witness to the incident. Though she has alleged that the lorry was parked without its parking lights on, but nowhere she has stated about the source of her information or how she secured the knowledge about it. As such, her statement which is against the documents at Exs.P2 and P3 produced by herself, cannot be believed regarding the manner of occurrence of the accident. The Tribunal below has arrived at the same conclusion by attributing reasons for the same. I do not find any reasons to interfere in the said M.F.A.No.23183/2009 : 20 : finding. As such, the argument of the learned counsel on the point is not acceptable.
17. Since the claim petition of the claimants was dismissed by the Tribunal below on the sole ground of the claimants failing to prove the negligence on the part of the driver of the lorry bearing Reg.No.KA-31/190 and the said finding since does not warrant any interference at the hands of this Court, the other aspects of the merits of the case regarding quantum of compensation and the liability of the parties to pay compensation need not be re- analysed. Accordingly, I proceed to pass the following:
ORDER The appeal is dismissed.
Sd/-
JUDGE MBS/*Svh/-