Karnataka High Court
Sri Anjanappa vs Sri Raghavendra on 20 June, 2013
Author: N.Kumar
Bench: N.Kumar
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 20th DAY OF JUNE 2013
PRESENT
THE HON'BLE MR. JUSTICE N.KUMAR
AND
THE HON'BLE MR. JUSTICE V. SURI APPA RAO
M.F.A. No.10768/2010(MV)
BETWEEN :
1. Sri Anjanappa,
S/o Ramappa,
Aged about 57 years.
2. Smt.Lakshmamma,
W/o Anjanappa,
Aged about 42 years.
Both are residing at
Shivakote Village & Post,
Hesaraghatta,
Bangalore North. ...APPELLANTS
(By Sri N.Gopalkrishna, Adv.)
AND :
1. Sri Raghavendra,
S/o Yallappa Vaster,
Major in age,
Residing at No.81/22,
12th D Main Road,
Rajajinagar, Shivajinagar,
Bangalore.
2. The Oriental Insurance Company Ltd.,
Divisional Office-10,
-2-
No.213 to 217,
Nagaprabha Chambers, 2nd floor,
3rd Main Road, 4th Cross,
Chamarajpet,
Bangalore - 560018.
Rep: by its Manager. ...RESPONDENTS
(By Sri S.C.Manjunath, Adv. for R-1
Sri S.Srishaila, Adv. for R-2)
. . . .
This M.F.A. is filed under Section 173(1) of the
Motor Vehicles Act, 1988, praying to modify the
Judgment and award dated 05.05.2010 passed in MVC
No.7881/2008 on the file of Member, Motor Accident
Claims Tribunal, Bangalore (SCCH-12) by holding that
the sole cause of accident was rash and negligent
driving of the tempo by its driver and thereby fixing the
liability of satisfying the entire award amount on
respondent and further, enhance the compensation
awarded from Rs.3,40,000/- to Rs.20,00,000/- along
with cost and interest.
This M.F.A. coming on for Admission, this day,
N.Kumar J., delivered the following:
JUDGMENT
This is a claimants' appeal questioning the finding of the Tribunal regarding the contributory negligence of the deceased in the accident.
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2. The deceased Sri. Rama Murthy was riding the motorcycle bearing Registration No. KA-04/EA-8088 on Veerasagara Main Road, Veerasagara on 10.09.2008 at about 8.30 a.m. A Tempo bearing No. KA-03/C-454 in a rash and negligent manner driven by its driver came from the opposite direction and dashed against the motorcycle. As a result, rider of the motorcycle fell down, sustained grievous injuries and subsequently succumbed to the injuries in the Hospital on the way to M.S. Ramaiah Hospital. On the date of the accident he was aged about 23 years, he was earning a sum of Rs.6,000/- p.m. as he was working as a Car Driver and he was a Bachelor. Therefore, his father and mother preferred a claim petition claiming a sum of Rs.20,00,000/- as compensation.
3. After service of notice, the owner of the tempo filed written statement contesting the claim. He contended the accident was on account of rash and negligent driving by the Driver of the motorcycle and therefore, he is not liable to pay any compensation. The Insurance -4- Company has also filed its written statement, contested the claim on the very same ground. However, they did not dispute the insurance coverage to the vehicle, the accident and the death on account of the accident.
4. On the aforesaid pleadings, the Tribunal framed the following Issues :
1) Do the petitioners prove that Sri. Ramamurthy died in an accident arising out of rashness and negligence of the driver of the tempo bearing No. KA-03/C-454 as alleged ?
2) Whether the petitioners are entitled for compensation ? If so, how much and from whom?
3) What order or Award ?
5. The claimants examined 1st claimant as PW-1 and produced 9 documents which are marked as Ex.P1 to P9. On behalf of the respondents, the 1st respondent the owner of the vehicle has examined as RW-1 and the Driver of the Tempo by name Sri. Puneeth is also examined as RW-2. They also produced two documents which are marked as Ex.R1 and Ex.R2.
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6. On consideration of the aforesaid voluminous documents on record, the Tribunal held the accident was on account of the rash and negligent driving of the driver of the tempo. It also held the deceased was riding the motorcycle was carrying two persons on the motorcycle which was illegal and unauthorized and therefore, he also contributed to the said accident. Therefore, 30% was fixed as contribution of the negligence by the deceased and 70% was the negligence on the part of the Driver of the tempo. Therefore, it proceeded to consider the claim for loss of dependency, it took the income of the deceased at Rs.2,000/- p.m., deducted 50% towards his personal expenses, applied the multiplier of 15 and awarded a sum of Rs.2,70,000/- under the head loss of dependency. It also awarded a sum of Rs.50,000/- towards other conventional head, Rs.5,000/- towards loss of estate, Rs.10,000/- towards funeral expenses and another Rs.5,000/- towards transportation of the dead body. Thus, in all a sum of Rs.3,40,000/- was awarded. However, as it has apportioned 30% negligence to the -6- deceased it directed payment of Rs.2,38,000/- being 70% negligence on the part of the owner of the tempo. Aggrieved by the said award of the Tribunal, the claimants are in appeal.
7. Learned Counsel for the appellants assailing the impugned award contends, it is true that the deceased was carrying two other persons on the motorcycle which is illegal. But that by itself would not lead to the inference that he also contributed to the accident. The Police sketch prepared in this case is marked as Ex.P5 clearly shows that the deceased was riding his motorcycle at the extreme left side of the road. The tempo was coming from the opposite direction. However, the sketch discloses he came to the extreme right side of the road and hit the motorcycle, which resulted in the death of the rider of the motorcycle. Therefore, the deceased did not contribute to any extent for the accident, as such the finding recorded by the Tribunal requires interference.
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8. Per contra, the learned Counsel appearing for the Insurance Company submitted that the driver of the tempo has been examined. He has disputed the correctness of the sketch and the author of the sketch is not examined. PW-2 though stated that he was driving his tempo on the left side of the road it is the deceased who was riding the vehicle in rash and negligent manner. Taking into consideration his evidence on record, the Tribunal was justified in holding that the deceased contributed to the extent of 30% to the accident. Therefore, he submits that no case for interference is made out.
9. In the light of the above facts and rival contentions, the points that arose for our consideration in this appeal is as under :
a) Merely because the deceased was riding the motorcycle along with two persons in the pillion does it constitute contributory negligence to the extent of 30% as held by the Tribunal ?-8-
10. The learned Counsel for the Insurance Company brought to our notice Section 128 of the Motor Vehicles Act, 1988, which reads as under :
128.Safety measures for drivers and pillion riders:- (1) No driver of a two wheeled motor cycle shall carry more than one person in addition to himself on the motor cycle and no such person shall be carried otherwise than sitting on a proper seat surely fixed to the motor cycle behind the driver's seat with appropriate safety measures.
(2) In addition to the safety measures mentioned in sub-section (1), the Central Government may, prescribe other safety measures for the drivers of two wheeled motor cycles and pillion riders thereon. He also relied on Rule 123 of the Central Motor Vehicles Rules, 1988, which reads as under :
"123. Safety devices in motor cycle.--No motor cycle which has provision for pillion rider shall be constructed without provision for a permanent hand grip on the side or behind the driver's seat and a foot rest and a protective device covering not less than half -9- of the rear wheel so as to prevent the clothes of the person sitting on the pillion from being entangled in the wheel".
Rule 143 of the Karnataka Motor Vehicles Rules, 1989, which reads as under :
"143. Attachment to motor cycle.--(1) Every side car attached to a motor-cycle shall be attached, at left hand side of the motor cycle, that the wheel thereof is not outside the perpendicular planes at right angles to the longitudinal axis of the motor cycle passing through the extreme projecting points in front and in the rear of the motor cycle.
(2) Every pillion seat attached to a motor cycle shall,--
(i) have two foot-rests one on either side of and directly below the seat fitted in such a manner that a person sitting on the pillion seat can rest his feet on such foot- rests;
(ii) have a suitably spring cushion seat; and
(iii) have a hand grip fitted to the front of the seat.
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(3) No pillion seat shall be attached to a motor-cycle with less than 100 cc engine. (4) The rear wheel of every motor cycle on which a pillion seat is fixed, shall be covered by a protective device covering two-thirds of the area of the rear wheel so as to prevent the clothes of the pillion rider".
Section 128 of the Act prohibits a driver of two wheeler from carrying more than one person in addition to himself. If the said provision is violated Chapter 13 of the Act provides for penalties and the procedure for collecting penalties. If any of the provision of the Act is contravened, if no specified penalty is prescribed the said offence is punishable for the first offence with fine which may extend to Rs.100/- or any subsequent offence with fine which may extend to Rs.300/-. Rule 123 of the Central Motor Vehicles Rules, 1989 provides for safety devices in motor cycle. Similarly, Rule 143 of the Karnataka Motor Vehicle Rules, 1989 deals with attachment to motor cycle. Therefore, all that could be gathered from these provisions is that if a person violates the provision of law he is liable to pay
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fine. The said provision do not either expressly or by implication to suggests that the said contravention would be construed as negligent act.
11. The learned Counsel for the parties relied on several judgments on this point. However, a full bench of this Court had an occasion to consider this aspect in the case of North East Karnataka Road Transport Corporation Vs. Smt. Vijayalaxmi and others reported in 2012 (3) KCCR 1772. Interpreting Section 123, it was held as under :
16. Section 123 of the Act casts a duty on the driver and conductor of a motor vehicle to prevent any person from travelling on the running board or on the top of the vehicle. There is an obligation cast on them under the statute to see that all persons are within the body of the vehicle. In spite of this statutory provision, if they permit any person to travel on the running board or on the top of the vehicle, it is breach of duty. It is an omission to do some thing which a reasonable man, guided upon those
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considerations which ordinarily regulate the conduct of human affairs would do. The driver and conductor of a motor vehicle owe a duty to the passengers of a motor vehicle to see that they do not travel on the running board or on top of the vehicle. They have a duty to take care of them while on board the vehicle. Similarly no person shall travel on the running or on the top or on the bonnet of the motor vehicle. If he travels, it is a careless conduct, the commission of which amounts to negligence. A duty of care exists as it is embodied in a statue with foresight for the benefit of such persons travelling in a motor vehicle. Mere breach of law or duty would not create a liability to pay damages. Such a breach should result in injury which is the foundation of a claim for damages. Therefore, the question of contributory negligence does not depend upon any breach of duty as between the plaintiff and defendant. Such a breach of duty should result in injury and consequent losses. In other words there should be a nexus between the breach of duty and the injury. If there is a blame causing
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the accident on both sides, the losses lies where it falls. This omission constitute a careless conduct. Foresight is the test for duty and remoteness.
17. From the aforesaid provisions it is clear that in Chapter XIII where offences, punishments and procedures are dealt with, there is no specific provision for contravention of Section 123 of the Act. Therefore Section 177 is attracted and if a person travels on the running board or on the top or on the bonnet of a motor vehicle, for such contravention, he is liable to pay, if the act complained of is the first offence, a fine which may extend to Rs.100.00 and for the second or subsequent offence, a fine which may extend to Rs.300.00.
Therefore, a harmonious reading of the aforesaid provisions makes it clear that under Section 123, there is an obligation/duty cast on the driver and the conductor of a motor vehicle not to carry on any person or permit any person to be carried on the running board or otherwise than within the body of the vehicle. Similarly, a passenger shall not
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travel on the running board or on the top or on the bonnet of a motor vehicle. If there is contravention of these provisions, the Act provides for a punishment. Therefore, in the scheme of the Act and in the light of the aforesaid provisions in the Act, the right of a third party passenger to claim compensation in the event of an accident on account of which any injury is caused or life is lost, is in no way denuded. The contravention of the aforesaid provision is nothing to do with the entitlement of compensation. Therefore the argument of Learned Counsel for the Corporation that a passenger who has travelled on the roof-
top of the bus is not entitled to compensation to the full extend and he will be entitled to compensation to the extent of only 50% in the event of any accident resulting in injury or death cannot be sustained.
12. Therefore, merely breach of law or duty would not create a liability to pay damages. Such a breach of law or duty should result in injury. The contributory negligence does not depend upon any breach of duty.
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The breach of duty should result in injury and consequent losses. If there is a blame causing the accident on both sides, the losses lice where it falls. Therefore, in the instant case, merely because the deceased was riding the motorcycle with two persons on the vehicle though it amounts to contravention of Section 123 of the Act it does not amount to a negligent act on the part of the deceased. The driver riding the vehicle if it is demonstrated lost control of the vehicle, he was not able to balance the vehicle or because of such contravention he dashed against the vehicle which resulted in the accident then the question is to what extent this breach of duty resulted in negligence is to be assessed by the Court.
13. In the instant case, we have the police sketch. A perusal of sketch shows, the motorcycle was on the extreme end of the left side of the road. Tempo was coming from the opposite direction. Though it was coming on the left side, suddenly it has taken a deviation and has come to the extreme right side of the road and has hit the motorcycle. Though the driver of
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the tempo was examined as PW-2 in this case he has not deposed how the accident took place. All that he has stated is that he was driving the vehicle on the left side of the road, it is the deceased who drove the vehicle in a rash and negligent manner and the sketch produced is incorrect. If the sketch produced was not correct, it was open to them to produce the sketch showing the actual place where the accident took place. No such attempt is made. The Driver in his evidence has not stated what is the breadth of the road, at what place the accident took place. Under these circumstances, the Trial Court was not justified in its conclusion that the deceased also contributed to the accident. In fact, in paragraph 9 the reasoning given for foisting the contributory negligence on the part of the deceased it is stated as under :
"when three persons were travel in a motor cycle undoubtedly such action of individual become illegal and unauthorized. They will be sitting in such a cramped manner that the rider of the motor cycle will almost be sitting on the petrol tank or at the front edge
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of the seat. When he is sitting in such a position naturally, because of the restricted movement of his legs, he cannot have complete control over the break and the movements of his hands are also restricted. The conduct of the person who travel in such a manner is liable for contributory negligence especially when their action is contrary to the statute. Having regard to the Sketch I hold that the deceased was liable for 30% contributory negligence".
14. Therefore, it is clear that 30% contributory negligence was foisted on the deceased solely on the ground that he was riding a motorcycle with two persons behind him. Such an inference is not permissible in law. It is true that the author of the sketch is not examined. In these motor vehicle cases, it is well settled that the strict rules of evidence is not adhere to. When the Police have prepared sketch and other connected papers in discharge of their official duty and in the process of investigation and in the absence of any motive being attributed, there is no reason for this Court to not to rely on such documentary evidence.
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15. In so far as the loss of dependency is concerned, it is stated that he was a Driver by profession. Anyhow, he was driving the motor cycle, he was aged about 23 years, the accident is of the year 2008.
16. Under these circumstances, the Tribunal taking the income at Rs.2,000/- p.m. is on the lower side. The appropriate would be Rs.4,000/- and 50% is to be deducted towards his personal expenses as he was Bachelor. Therefore, the compensation payable would be Rs.2,000 x 12 x 15 = Rs.3,60,000/-. The claimants are also entitled to a sum of Rs.10,000/- towards loss of estate, Rs.10,000/- towards love and affection, Rs.10,000/- towards funeral expenses, Rs.5,000/- towards transportation of dead body. Thus, in all the claimants would be entitled to a sum of Rs.3,95,000/-.
17. Hence, we pass the following :
ORDER In substitution of the award of the Tribunal, we award a sum of Rs.3,95,000/- as compensation with
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interest at 6% p.a. from the date of petition till the date of payment and direct the respondents to pay the said amount after deducting the amounts already paid in pursuance of the impugned award.
Parties to bear their own costs.
Sd/-
JUDGE Sd/-
JUDGE Rbv