Karnataka High Court
Shobha W/O Subhas Abalur vs Kantesh S/O Basavantappa Naikar on 21 August, 2019
Author: S.N.Satyanarayana
Bench: S.N.Satyanarayana
1
IN THE HIGH COU RT OF KARNA TAKA
DHARWAD BENCH
DATED TH IS THE 21 S T DAY OF AUGUST 2019
PRESENT
THE HON'BLE MR.JUSTICE S.N. SA TYANARAYANA
AND
THE HON'BLE MR.JUSTICE P.G.M. PATIL
M.F.A.NO .102006/2014 (MV)
BETWEEN:
1. SHOBHA W/O SUBHAS ABALUR
AGE: 33 YEARS , OCC: HOUSEHOLD WORK
R/O. RAJARAJESHWARI NAGAR,
RANEBENNU R, TQ: RANEBENNUR
DIST: HAVERI
2. KUM BHOOMIKA SUBHAS ABALUR
AGE: 11 YEARS , OCC: HOUSEHOLD OWRK
R/O. RAJARAJESHWARI NAGAR,
RANEBENNU R, TQ: RANEBENNUR
DIST: HAVERI
MINOR, R/BY HER APPELLANT NO.1 AS
HER NEXT FRIEND NA TURAL MOTHER
SMT. SHOBHA W/O SUBHAS ABALUR
3. KUM PRU THVI D/O. SUBHAS ABALUR
AGE: 09 YEARS , OCC: HOUSEHOLD OWRK
R/O. RAJARAJESHWARI NAGAR,
RANEBENNU R, TQ: RANEBENNUR
DIST: HAVERI
MINOR, R/BY HER APPELLANT NO.1 AS
HER NEXT FRIEND NA TURAL MOTHER
SMT. SHOBHA W/O SUBHAS ABALUR
4. SHARNAPPA S/O. CHANNABASAPPA ABALUR
AGE: 60 YEARS , OCC: AGRICULTURE
2
R/O. RAJARAJESHWARI NAGAR, RANEBENNUR
TQ: RANEBENNUR, DIS T: HAVERI
5. KAMALAMMA W/O. SHARNAPPA ABALUR
AGE: 57 YEARS , OCC: HOUSEWIFE
R/O. RAJARAJESHWARI NAGAR, RANEBENNUR
TQ: RANEBENNUR, DIS T: HAVERI
... APPELLANTS.
(BY SRI MALLIKARJUNSWAMY B HIREMATH, ADVOCATE.)
AND:
1. KANTESH S/O BASAVANTAPPA NAIKA R
AGE: 33 YEARS , OCC: DRIVER
R/O: KADARMANDALAGI,
TQ: BYADAGI, DIS T: HAVERI
2. SANNALAKSHMAPPA S/O.PU TTAPPA NAIKAR
SINCE DECEASED BY HIS LRS
2A. BASAVANTAPPA
S/O. SANNALAKH MAPPA NAIKAR
AGE: 69 YEARS , OCC: AGRICULTURE
R/O: KADARMANDALAGI, TQ : BYADA GI
DIST: HAVERI
2B. SHEKAPPA S/O SA NNALAKHMAPPA
NAIKAR,
AGE: 64 YEARS , OCC: AGRICULTURIST,
R/O: KADARMANDALAGI, TQ : BYADA GI
DIST: HAVERI
2C. HALAPPA S/O. SA NNALAKHMAPPA NAIKAR
AGE: 59 YEARS , OCC: AGRICULTURE
R/O: KADARMANDALAGI, TQ : BYADA GI
DIST: HAVERI
2D. DEVENDRAPPA
S/O. SANNALAKH MAPPA NAIKAR
AGE: 52 YEARS , OCC: AGRICULTURE
R/O: KADARMANDALAGI, TQ : BYADA GI
DIST: HAVERI
3
2E. CHANDRAPPA S/O. SANNALAKHMAPPA NAIKAR
AGE: 49 YEARS , OCC: AGRICULTURE
R/O: KADARMANDALAGI, TQ : BYADA GI
DIST: HAVERI
3. THE BRANCH MANAGER
UNITED INIDA INS URANCE CO . LTD.,
MOKTALI BUILDING,
OPP. KSRTC BUS S TAND, HAVERI
... RESPONDENTS
(BY SRI PREETI SHASHANK, ADVOCATE, FOR R.3;
R.1 - DELETED;
R.2(A) TO (E) - NO TICE SERVED .)
THIS MISCELLANEOUS FIRS T APPEAL IS F ILED
UNDER SECTION 173(1) OF M.V.ACT, 1988, PRAYING TO
ALLOW THE APPEAL AND TO ENHANCE THE AWA RD
AMOUNT BY MODIFYING THE JUD GMENT AND AWARD
DATED 24.4.2014, PASSED BY THE PRL. S ENIOR CIVIL
JUDGE AND MACT, RANEBENNUR, IN MVC NO.169/2010,
BY ALLOWING THE CLAIM PETITIO N IN ITS ENTIRETY ,
ETC.,.
RESERVED FO R JUDGMENT ON : 6.8.2019.
JUDGMENT PRONOUNCED ON : 21.8.2019.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, P.G.M.PA TIL, J, DELIVERED THE
FOLLOWING:
JUDGMENT
The claimants being aggrieved by the judgment and award dated 24.4.2014, passed in MVC 4 No.169/2009, on the file of Prl. Senior Civil Judge and MACT, Ranebennur, have filed this appeal.
2. It is the case of the claimants before the tribunal that, on 6.3.2007, at 1.00 p.m., on P.B.Road, at Karjjari cross, the husband of the 1 s t petitioner was proceeding in his maruti car bearing No.KA-39/M-5555 towards Haveri. At that time the driver of the tractor and trailer bearing No.KA-27/T- 3324-3325 drove the same in a rash and negligent manner so as to endanger human life and where there was no prescribed way for crossing the highway, by his unmindful act, the driver of the said tractor and trailer tried to cross the highway without giving any signal or indication or without noticing the on-coming vehicles on the highway, as a result of which the said car of the deceased collided with the trailer resulting in occurrence of the accident thereby causing fatal injuries to the deceased. He was taken to Government Hospital, 5 Ranebennur and then shifted to City Central Hospital, Davanagere, wherein on the same day he succumbed to the injuries. The first claimant being wife, claimants No.2 and 3 being minor children and claimants No.4 and 5 being parents of the deceased were all depending on the earnings of the deceased who was earning monthly `25,000/- by doing chilly business and also agriculture and due to his untimely death, the claimants have lost their bread earner. The accident in question occurred solely due to the rash and negligent driving of the offending tractor and trailer by its driver. The 2 n d respondent being the owner and 3rd respondent being the insurer of the said vehicle are jointly and severally liable to pay compensation of `50,00,000/-.
3. In pursuance of notice, respondents No.1 and 3 appeared before the tribunal through their counsel and the petition against respondent No.2 was dismissed as abated on account of his death. 6 However during the pendency of the proceedings his legal representatives were impleaded as respondents No.2(a) to 2(e).
4. The contesting respondent No.3 insurer of the offending vehicle filed his written statement denying the claim of the claimants with regard to occurrence of the accident due to the rash and negligent driving of the offending vehicle by its driver resulting in death of husband of 1 s t claimant in the said accident. He has also denied dependency of the claimants, earnings of the deceased, etc.,. It is specific contention of the insurer that the accident in question occurred solely due to rash and negligent driving of the car by the deceased and there was absolutely no rash and negligent act on the part of the 1 s t respondent. The deceased was not holding valid and effective driving licence. His liability is subject to the validity of driving licence of the driver and compliance of the terms of 7 insurance policy. Accordingly he sought for dismissal of the claim petition against him. The other respondents did not file any written statement.
5. On the basis of the pleadings of the parties, the tribunal framed issues. In support of their claim petition, claimant No.1 was examined as PW.1 and two witnesses were examined as PWs.2 and 3 and they have got marked 43 documents as Exs.P.1 to P.43. Respondent No.3 examined two witnesses as RWs.1 and 2 and got marked 4 documents as Exs.R.1 to R.4. The learned member of the tribunal after hearing both the parties, passed the impugned judgment awarding compensation of `21,20,000/- with interest at 6% p.a. from the date of petition till realization. It was further held that respondent Nos.1, 2(a) to (e) and respondent No.3 are jointly and severally liable to pay 50% of the compensation amount as the 8 remaining 50% was attributed against the deceased towards negligence on the part of the deceased.
6. The claimants being aggrieved by the impugned judgment have filed this appeal on the grounds that the tribunal has erroneously passed the judgment and award fixing the liability of 50% on the deceased Subhas contrary to the evidence placed on record and also in awarding meager compensation. The document Ex.P.5 spot panchanama clearly shows that the deceased was going on national highway and the tractor trailer even without seeing the on-coming maruti car driven by the deceased, tried to cross the same and dashed against the maruti car thereby caused fatal accident. The compensation awarded by the tribunal is on lower side and the same needs to be enhanced.
7. We have heard the learned counsels appearing for the parties and perused the records. 9
8. A short question which arises for consideration before this Court in this appeal is as to whether the appellants have made out grounds to show that 50% of the liability saddled against the deceased is illegal, perverse and against the material on record and law and as such it is liable to be set aside and whether they are entitled for enhancement in the compensation.
9. The learned counsel for the appellants/ claimants submitted that the deceased was driving the car on national highway No.4 and that the driver of the tractor and trailer without noticing the on-coming car of the deceased, entered the national highway in order to cross over to the other side which caused the accident and therefore the entire negligence in causing the accident is on the driver of the tractor and trailer.
10. The leaned counsel relied on the Regulation No.9 of the Rules of the Road 10 Regulations, 1989 and the present Regulation No.15 of the Motor Vehicles (Driving) Regulations, 2017.
11. Per contra, the learned counsel for the insurer supported the judgment and submitted that the tractor had already crossed the road and when the trailer was about to cross the road, the deceased drove the car in a rash and negligent manner and dashed to the trailer and therefore the tribunal fixing the liability to the extent of 50% against the deceased is proper.
12. Now, the only question which arises for consideration in the present appeal is as to whether the act of the driver of the tractor and trailer crossing the national highway from service road without noticing the on-coming vehicle driven by the deceased is in violation of the regulations stated above and therefore the entire negligence has to be attributed to the driver of the tractor and trailer. 11
13. Regulation No.9 of the Rules of the Road Regulations, 1989 reads as follows:
9. Giving way to traffic at road junction The dr iver of a motor vehicle shall, on enter ing road intersection at which tr aff ic is not being regulated, if the road entered is a main road designated as such, give way to the vehicles proceed ing along that road, and in any other case give way to all tr aff ic approaching the in tersection on his r ight hand.
14. The said Rules are superseded by Act (59 of 1988), by the Motor Vehicles (Driving) Regulations, 2017. Regulation No.15 (1) and (2) of these Regulations read as follows:
15. Merging in traffic (1) A motor vehicle entering a national highway or a S tate highway or a major d istr ict road shall give way to 12 tr aff ic on the highway or the major distr ic t road, as the case may be.
(2) At an intersection of two roads of same category, the driver of the motor vehicle on the right shall have the right of way.
15. Therefore it is crystal clear that as per the above referred Regulations, the motor vehicle entering a national highway or a state highway or a major district road shall give way to traffic on the highway or the major district road as the case may be and further at an intersection of two roads of same category, the driver of the motor vehicle on the right shall have the right of way.
16. Admittedly, in the present case the driver of the tractor and trailer drove the same on service road which was proceeding from Kadaramandalagi- Asundi road and when he came near Kajjari cross, he was to proceed towards the national highway and 13 to cross and then to join the service road on the other side. Therefore there is a clear negligence on the part of the driver of the tractor and trailer who entered the national highway in violation of Regulation No.15(1) stated supra, without giving way to the deceased who was driving the car on the national highway. Therefore there is sufficient material on record to show that the accident in question occurred due to rash and negligent act on the part of the driver of the tractor and trailer and that there was no negligence at all on the part of the deceased, who was driving maruti car.
17. The tribunal has observed these things in paragraph No.7 of the judgment stating that on national highways one cannot expect the drivers to drive the vehicle slowly and when a vehicle has to cross national highway from one side to other side, the driver of the said vehicle should exercise care and caution which the driver of the offending tractor 14 and trailer failed to exercise. However the tribunal proceeded to hold that the material on record establish that both have contributed towards the cause of accident in the ratio of 50:50.
18. For the reasons discussed above, we hold that the entire negligence in causing the accident is on the driver of the tractor and trailer and therefore the finding recorded by the tribunal saddling 50% of liability against the deceased on the ground that he has contributed 50% negligence towards causing the accident is illegal, perverse, erroneous and against the material on record and against the Regulations stated supra. Therefore the finding of the tribunal to this extent is liable to be set aside. 50% negligence held against the deceased has to be set aside and respondents No.1, 2(a) to 2(e) and 3 have to be held jointly and severally liable to pay the entire compensation to the claimants with interest at 15 6% p.a. from the date of petition till the date of realization.
19. The learned counsel for the claimants submitted that the compensation awarded by the tribunal is on lower side and the same has to be enhanced. On the basis of the material on record, the tribunal has awarded compensation of `21,20,000/-, out of which 50% was ordered to be paid by respondent No.3 insurer as the other 50% was saddled against the deceased himself. In view of the finding recorded by this Court, the claimants are entitled for entire compensation of `21,20,000/ - . The compensation awarded by the tribunal is just and reasonable and the same does not call for interference by this Court. We are not inclined to enhance the compensation on any of the grounds. Hence, the point for consideration is answered accordingly.
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20. In the result, this Court proceed to pass the following:
ORDER The appeal is allowed in part.
The judgment and award dated 24.4.2014 passed in MVC No.169/2009, on the file of Prl. Senior Civil Judge and MACT, Ranebennur, so far as holding 50% negligence against the deceased and thereby reducing 50% of the compensation is hereby set aside.
It is ordered that respondents No.1, 2(a) to 2(e) and 3 are jointly and severally liable to pay compensation of `21,20,000/- to the claimants with interest at 6% p.a. from the date of petition till the date of realization.
Respondent No.3 being the insurer is directed to deposit the entire compensation amount with 17 interest before the tribunal, within a period of four weeks.
SD/-
JUDGE SD/-
JUDGE Mrk/-