Karnataka High Court
Babu Sannavirappa Shiddanavar vs The Manager on 27 January, 2022
Author: B.M. Shyam Prasad
Bench: B.M. Shyam Prasad
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 27th DAY OF JANUARY 2022
BEFORE
THE HON'BLE MR. JUSTICE B.M. SHYAM PRASAD
Writ Petition No.79130/2013 (GM-RES)
C/w Writ Petition No.79131/2013 (GM-RES)
IN W.P. NO.79130/2013
BETWEEN
1. SMT. GIRIJA W/O. SHANKAR KAMMAR
AGE:40 YEARS,
OCC: HOUSEHOLD WORK
R/O. KADROLLI, TQ: BAILHONGAL
DIST: BELGAUM
2. SMT. INDRAVVA W/O. RUDRAPPA KAMMAR
AGE: 80 YEARS,
OCC: HOUSEHOLD WORK
R/O. KADROLLI, TQ: BAILHONGAL
DIST: BELGAUM
3. SHRI. VINAYAK S/O. SHANKAR KAMMAR
AGE: 19 YEARS, OCC: STUDENT
R/O. KADROLLI, TQ: BAILHONGAL
DIST: BELGAUM
4. SHRI. VAIBHAV S/O. SHANKAR KAMMAR
AGE: 16 YEARS, OCC: STUDENT
R/O. KADROLLI, TQ: BAILHONGAL
DIST: BELGAUM
5. SHRI. PROMOD S/O. SHANKAR KAMMAR
AGE: 13 YEARS, OCC: STUDENT
2
R/O: KADROLLI, TAL: BAILHONGAL,
DIST: BELGAUM.
PETITIONERS NO.4 & 5 BEING MINORS,
ARE REPRESENTED BY THEIR
GUARDIAN/NEXT FRIEND/MOTHER
I.E. PETITIONER NO.1 ...PETITIONERS
(BY SRI. SANTOSH B.RAWOOT & SRI SHAFIAHMAD B.SHAIKH,
ADVOCATES)
AND
1. ASHOKA BELGAUM/DHARWAD TOLLWAY
PVT. LTD.,
C/O. MR. Y.S. SUNAGAR
BY ITS MANAGER,
PLOT NO. 93, SHREE SAI NILAYAM
9TH CROSS, RANI CHANNAMMA NAGAR,
DHARWAD
2. THE GENERAL MANAGER (TECH)
AND PROJECT DIRECTOR
NATIONAL HIGHWAY AUTHORITY OF INDIA,
II CROSS, SATTUR COLONY, VIDYAGIRI,
DHARWAD-580004.
3. THE MANAGING DIRECTOR,
ASHOKA BUILDCON LTD.,
ASHOKA HOUSE, ASHOKA MARG,
ASHOKA NAGAR, NASHIK-422011.
4. CHIEF OFFICER,
NATIONAL HIGHWAY AUTHORITY OF
INDIA CORPORATE OFFICE,
G-5 AND 6, SECTOR -10,
DWARKA, NEW DELHI-110075. ...RESPONDENTS
(BY SRI. M.V.CHAVAN, ADVOCATE FOR R1 & R3
SRI. M.V. KINI & CO., ADVOCATE FOR R2 & R4)
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THIS WP IS FILED UNDER ARTICLES 226 & 227 OF THE
CONSTITUTION OF INDIA PRAYING TO DIRECT THE
RESPONDENTS TO PAY COMPENSATION OF RS.10,00,000/- TO
THE PETITIONERS ALONG WITH INTEREST @ 10% P.A. FROM
THE DATE OF THE PETITION TILL ACTUAL REALIZATION OF THE
COMPENSATION AMOUNT IN THE INTEREST OF JUSTICE; AND
AWARD THE COST OF THE WRIT PETITION.
---------
IN W.P. NO.79131/2013
BETWEEN
1. SHRI. BABU SANNAVIRAPPA SHIDDANAVAR,
AGE: 55 YEARS,
OCC: AGRICULTURE,
R/O. KADROLLI, TQ: BAILHONGAL
DIST: BELGAUM
2. SMT. MAHADEVI BABU SHIDDANAVAR,
AGE: 48 YEARS,
OCC: HOUSEHOLD WORK,
R/O. KADROLLI, TQ: BAILHONGAL
DIST: BELGAUM ...PETITIONERS
(BY SRI. SANTOSH B.RAWOOT & SRI SHAFIAHMAD B.SHAIKH,
ADVOCATES)
AND
1. THE MANAGER,
ASHOKA BELGAUM/DHARWAD TOLLWAY
PVT. LTD., C/O. MR. Y.S. SUNAGAR
PLOT NO. 93, SHREE SAI NILAYAM
9TH CROSS, RANI CHANNAMMA NAGAR,
DHARWAD
4
2. THE GENERAL MANAGER (TECH)
AND PROJECT DIRECTOR
NATIONAL HIGHWAY AUTHORITY OF INDIA,
II CROSS, SATTUR COLONY,
VIDYAGIRI,
DHARWAD-580004.
3. MANAGING DIRECTOR,
ASHOKA BUILDCON LTD.,
ASHOKA HOUSE, ASHOKA MARG,
ASHOKA NAGAR,
NASHIK-422011.
4. CHIEF OFFICER,
NATIONAL HIGHWAY AUTHORITY OF
INDIA CORPORATE OFFICE,
G-5 AND 6, SECTOR -10,
DWARKA, NEW DELHI-110075. ...RESPONDENTS
(BY SRI. M.V.CHAVAN, ADVOCATE FOR R1 & R3
SRI. M.V. KINI & CO., ADVOCATE FOR R2 & R4)
THIS WP IS FILED UNDER ARTICLES 226 & 227 OF THE
CONSTITUTION OF INDIA PRAYING TO DIRECT THE
RESPONDENTS TO PAY COMPENSATION OF RS.10,00,000/- TO
THE PETITIONERS ALONG WITH INTEREST @ 10% P.A. FROM
THE DATE OF THE PETITION TILL ACTUAL REALIZATION OF THE
COMPENSATION AMOUNT IN THE INTEREST OF JUSTICE; AND
AWARD THE COST OF THE WRIT PETITION.
THESE WPs COMING ON FOR PRELIMINARY HEARING IN
'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
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COMMON ORDER
The petitioners are the legal representatives of Sri.Irappa Babu Shiddanavar and Sri.Shankar Rudrappa Kammar who have died in a road accident on 10.06.2011 on N.H.4-A within the limits of Kittur Police Station, Bailhongal Taluk, Belagavi District. The petitioners have sought for a direction to the respondents viz., the National High Authority of India and the Concessionaire, M/s Ashoka Belgaum- Dharwad Tollway Private Limited, to pay to each set of the petitioners separately a sum of Rs.10,00,000/- along with interest at the rate of 10% per annum.
2. The petitioners contend that Sri.Irappa Babu Shiddanavar and Sri.Shankar Rudrappa Kammar, on 10.06.2011, were traveling on a motor cycle bearing registration No.KA-24/K-2619. At about 7.45 p.m., when they reached M.K.Hubli river over-bridge, the rider of the motor cycle, Sri. Irappa Babu Shiddanavar, could not avoid cement blocks that were haphazardly placed on the main 6 road and because of the accident both, the rider (Sri.Irappa Babu Shiddanavar) and the pillion rider (Sri. Shankar Rudrappa Kammar) have died.
3. The fulcrum of the petitioners' case is that the respondents had not taken due care in placing the cement blocks; though there was no maintenance or construction work at the place of the accident the cement blocks were placed on the main road that too haphazardly. The respondents had not even taken necessary precautionary measures such as providing reflectors and markers. The deceased have breathed their last because of this failure and hence, the petitioners are entitled to receive compensation from the respondents.
4. Dr. Shafiahamed B.Shaikh, the learned counsel for the petitioners, drawing the attention of this Court to the mahazar drawn by the jurisdictional police, submits that the negligence by the respondents is undeniable and the circumstances of the case justify invoking principles of res 7 ipsa loquitur, and without a detailed enquiry into the facts and circumstances of the case, the petitioners must be granted just compensation. The learned counsel, in support of his submission, relies upon a Division Bench decision of this Court in Smt. P.Lalithamma and Others Vs. The Commissioner, Bangalore City Corporation, Bangalore reported in 2012(2) Kar.L.J. 696.
5. The learned counsel for the National Highway Authority of India submits that the construction/maintenance of the National Highway is entrusted to the first respondent under a Concession Agreement and the liability, if any, to pay compensation, because of the indemnity clause in the Concession Agreement, would be on the Concessionaire-the first respondent and there cannot be any liability on the National Highway Authority of India.
6. Indeed, a Division Bench of this Court in Smt. P.Lalithamma and Others (supra) has invoked the principles 8 of res ipsa loquitur and has awarded a compensation of Rs.1,00,000/- to the legal heirs of the deceased scooterist who died as a consequence of a tree falling on the scooter, with liberty to the legal heirs to initiate civil proceedings if they were unhappy with the amount awarded opining that the question of compensation would involve questions of fact and these questions of facts could not be examined under Article 226 of the Constitution of India. Significantly, the Division Bench, in the circumstances of such case, has found that the legal representatives of the deceased, who breathed his last as a consequence of tree falling when he was riding the scooter, are entitled to compensation because the Corporation had not contested the claim, the Corporation was informed that the tree which fell on the deceased was infected because of termites and despite being so informed, the Corporation had not taken any action.
7. In the present case, it is obvious from the mahazar, which is relied upon by the petitioners, that the 9 Officer who has drawn the mahazar has observed that there were no markers and cement blocks were stored randomly. The motor vehicle accident report is that the accident was not due to any mechanical defect of the scooter. But neither the mahazar nor the motor vehicle accident report can be relied upon to opine, without trial, that the deceased rider was not negligent. Further, this Court is of the opinion that, from the material on record and given the nature of the accident, the principles of res ipsa loquitur cannot be invoked this Court. Therefore, the petition must be disposed of with liberty to the petitioners, subject to all just exceptions in law, including the right to seek exclusion of time under Section 14 of the Limitation Act, 1963, to initiate appropriate civil proceedings for vindication of their claim.
The petitions stand disposed of accordingly.
Sd/-
JUDGE Kms