Karnataka High Court
Shasheeda Begum W/O Late Riyaz vs G.Narasimharao S/O Venkatrao on 2 September, 2014
Author: Ravi Malimath
Bench: Ravi Malimath
1
IN THE HIGH COURT OF KARNATAKA
GULBARGA BENCH
ON THE 2ND DAY OF SEPTEMBER, 2014
BEFORE
THE HON'BLE MR. JUSTICE RAVI MALIMATH
M.F.A.No. 31425/2010 (MV)
BETWEEN
1. SHASHEEDA BEGUM W/O LATE RIYAZ
AGE : 34 YEARS, OCC:HOUSEHOLD,
2. NEHA D/O LATE RIYAZ
AGE : 08 YEARS, MINOR
3. SABJALI S/O LATE RIYAZ
AGE : 05 YEARS, MINOR
4. MAHABOOBSAB S/O SABJALLI
AGE: 56 YEARS, OCC:AGRICULTURE,
5. MAHABOOBI W/O MAHABOOBSAB
AGE : 53 YEARS, OCC: HOUSEHOLD,
CLAIMANTS NO. 2 AND 3 ARE MINORS
AND THEY ARE U/G OF THEIR NATURAL
MOTHERS CLAIMANTS NO.1
ALL ARE R/O. NEERAMANVI, TQ : MANVI
DIST : RAICHUR.
... APPELLANTS
(BY SRI. BASAVARAJ R. MATH, ADV)
2
AND
1. G.NARASIMHARAO S/O VENKATRAO
AGE : 36 YEARS,
OCC:DRIVER OF TRACTOR &
TRAILOR BRG. REGN NO. KA-36/T-7408
R/O C/O V. T. TRADERS, MANVI,
DIST : RAICHUR
2. R. VENKATESHWAR RAO
S/O SANNA VENKATESH
MAJOR,
OCC:OWNER TRAILOR
BEARING REG.NO. KA-36/T-7408,
V.T. TRADERS,MANVI,
RAICHUR.
... RESPONDENTS
(BY SRI. C. KESHAVARAO, ADV FOR R1 & R2)
***
THIS MFA FILED UNDER SECTION 173 (1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DT :05.03.2010
PASSED IN MVC NO. 120/2009 ON THE FILE OF THE MACT
AND FAST TRACK COURT-I RAICHUR, DISMISSING THE C.P
AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
3
JUDGMENT
It is the case of the claimant that on 23-12-2006 at about 9.45 pm Riyaz, the husband of claimant No.1 and the father of claimants 2 & 3 and the son of claimants 4 & 5 was proceeding on a motorcycle bearing No.KA-36/T-6459 from Manvi. The tractor trailor bearing no.KA-36/T-7408 was parked on the road without any parking lights carrying logs of Eucalyptus trees which were protruding outside the vehicle. There was no parking lights and the deceased dashed his motor cycle against the tractor trailor due to which he fell down and sustained grievous injuries. He took treatment in various hospitals and thereafter died. The claimants namely, the wife, children and the parents of the deceased filed the instant claim petition. The tribunal by the impugned order dismissed the claim petition. The tribunal was of the view that in terms of the FIR, Ex.P-1 the case has been registered against the husband of claimant No.1, namely the deceased. The FIR would indicate that the accident took place due to the negligence 4 of the deceased. In terms of Ex.P-2 the complaint given by one Mohammed Rafi it is also stated that the accident took place due to the negligence of the deceased. Thereafter on the death of the deceased the case was closed. That there was no material to show that the parking lights were not put on by the driver of the tractor and trailor. That there is no material to show that the Eucalyptus trees were protruding outside the vehicle etc. Therefore the accident took place due to the negligence of the deceased and he cannot claim compensation against the driver of the tractor trailor. Hence the claim petition was dismissed. Aggrieved by the same, the claimants have filed this appeal.
2. The learned Counsel appearing for the appellant contends that the impugned order is bad in law and liable to be set aside. The tribunal misread the material evidence on record. That the FIR and filing of the charge sheet is not proof enough of the guilt of the deceased. Moreover, the material on record would show that the tractor trailor was parked in the middle of the road. He further contends that 5 in the absence of any warning lights of the vehicle, the same would amount to violation of the Motor Vehicle Rules. Therefore, the driver of the tractor trailor would be held negligent for the accident. In support of his case he relies on the Judgment of the Hon'ble Supreme Court reported in 2009 (3) KCCR 1575 in the case of ORIENTAL INSURANCE COMPANY LIMITED., BANGALORE vs. CHENNAPPA SHETTIGAR AND OTHERS with reference to paragraph 3 to contend that since there was no indicator on the truck to show that the truck was parked, there was negligence on the part of the driver of the truck. He also relies on the decision reported in the case of NEW INDIA ASSURANCE CO. LTD., vs. KALPANA AND OTHERS reported in (2007) 3 SCC 538 with reference to para-10 to 17. He therefore contends that in terms of the Judgments it is mandatory on the part of the vehicle which is parked at night to put on the parking lights or some indicator to show that the vehicle is parked. If there is no such evidence the driver of the vehicle would be held negligent. He relies on the Division Bench Judgment in the case of Dr.BHAKTAPRAHALAD AND 6 ANOTHER vs. NIRWANI AND OTHERS reported in (2011) Karnataka M.A.C. 43 with reference to paras 9 to 11 wherein Section 122 of the Motor Vehicles Act was considered with regard to leaving of vehicle in a dangerous position. Rule 102, 109 of the Central Motor Vehicles Rules,1989, and Section 122 of the Motor Vehicles Act, was also considered. On a plain reading of Section 122 and Rule 109 it is clear that the front and rear parking lights should remain lit even if the vehicle is kept stationary on the road. If not the driver of the vehicle would be held negligent. Relying on the decision in the case of KUMARI JYOTHI AND OTHERS vs.MOHD.USMAN ALI AND OTHERS reported in ILR 2002 KARNATAKA 893 with reference to paras 13 & 14 wherein once again Section 122 was considered with an identical finding as recorded earlier.
3. On the other hand, the learned Counsel appearing for the respondents 1 & 2, the driver and the owner of the vehicle defends the impugned order. He contends that there is no error that calls for any 7 interference. That the charge sheet having been filed against the rider of the vehicle is sufficient proof that he was negligent in causing the accident.
4. Heard learned counsels.
5. It is an undisputed fact that the accident took place at 9.45 p.m. At that time it is all the more necessary that parking lights be kept on.
6. The Tribunal was swayed by the fact that the FIR and the charge sheet have been filed against the deceased. The complaint is at Ex.P-2, the FIR is at Ex.P-1, the charge sheet has been marked as Ex.P-3. However, the charge sheet abated due to the death of the deceased. Even though the FIR and the charge sheet would indicate that the case is sought to be made out against the deceased, no conviction could be recorded on the said facts. It has therefore remained an allegation and nothing more. The tribunal committed an error in giving unnecessary 8 importance to the existence of the FIR as well as the charge sheet.
7. The aforesaid Judgments relied upon by the learned Counsel appearing for the appellants very clearly narrate the provisions of Section 122, 102 and 109 of the Central Motor Vehicles Rules as well as Rule 214 of the Karnataka Motor Vehicles Rules. In so holding the pronouncement of law on the said issue is clear and consistent. The Judgments narrate that it is the duty of the driver of the stationary vehicle to put on the precautionary lights. That in the absence of putting on any warning lights to the said effect the only conclusion is that the driver of the vehicle acted in a negligent manner. On the available material on record, in view of the fact that there is no evidence to show that there was parking light that was put on by the stationary vehicle, I'am constrained to hold that the finding of the tribunal is erroneous. 9
8. Yet another error committed by the tribunal is the fact that the burden of establishing the existence of parking lights seems to have been misconstrued by the tribunal. It held that there is no material to show that the parking lights were not put on by the driver of the tractor. I'am of the considered view that the burden would necessarily be on the driver of the vehicle to show that the lights were put on. It cannot be said that the burden is on the claimant to prove that the parking lights were not there. This too is an error in wrongly shifting the burden with regard to the existence of precautionary lights.
9. Under these circumstances, in view of the aforesaid Judgments as well as the fact situation of this case, I have no hesitation to hold that the tribunal committed an error in dismissing the claim petition. Accordingly, the appeal is allowed. The order dated 5-3-2010 passed by the Presiding Officer, Fast Track Court, Raichur, in MVC No.120/2009 is set aside. The claim petition is restored to file. The Tribunal shall consider the 10 claim petition on merits and pass appropriate orders in accordance with law.
The Tribunal shall hear and dispose off the claim petition within a period of 8 weeks from the date of receipt of copy of this order.
The parties shall appear before the Tribunal on 25-9-2014.
The Registry to send back the records forthwith.
Sd/-
JUDGE Rsk/-