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SCCH-25

9. The objections of the 4th respondent:

It has admitted the issuance of policy to the KSRTC bus but denied the negligence of the KSRTC Bus. Therefore prayed for dismissal of the petition.

10. On the above rival contentions of the parties, this court has framed the following issues:

1. Whether the Petitioners prove that, they are the legal heirs of the deceased Sri.Vishwanath @ Vishwanath Pillai?

16. The documents produced by the Petitioners such as the FIR in Cr.No.0035/2021 of Bidadi Police with FIS, spot and seizure mahazar, Inquest Mahazar, MVA report, spot sketch, PM report and charge sheet as per Exs.P.1 to P.4 and P.7 to P.10 are all public documents and have initial presumptive value under law. These documents fully and completely corroborate with the evidence of PW.1. The investigation officer in crime No.35/2021 of Bidadi Traffic Police has conducted the investigation in detail and has filed the charge sheet against the drivers of the Lorry bearing No.KA­09­A­7018, Driver of the KSRTC Bus bearing No.KA­ 09­F­4916 holding that the accident occurred due to the rash and negligent driving by the drivers of both Lorry and KSRTC Bus. During the cross examination of PW.1 by the respondent SCCH-25 No.3, she has admitted that the accident occurred due to the negligence of the Lorry driver. During her cross examination by Respondent No.2 she has admitted that the accident was caused due to the rashness of the driver of the KSRTC bus. Therefore, from the evidence of PW.1 it can be gathered that there was negligence on the part of both KSRTC Driver and the Lorry Driver. However, the court has to bear in mind that the PW.1 is not an eye witness to the accident.

17. The Inquest mahazar produced as per Ex.P.4 and PM report produced as per Ex.P.9 clearly show that 'Death is due to hemorrhage and shock as a result of multiple injuries sustained' and on account of such injuries has succumbed to his death. In support of their defence the respondent No.3 has got examined the Driver of the KSRTC bus as RW.1 and got marked his DL as Ex.R.1. During his cross examination by respondent No.2, he has admitted that the Road is sloping downwards. He has further admitted that even though the said Road is a National High Way it is not very wide. He has SCCH-25 denied that he was going very fast and explained that if he was fast there would have been tyre marks on the Road. On an analysis of all the facts which have come before the court during the cross­examination of PW.1 and RW.1 and on perusal of police documents, it is clear that the two vehicles and the deceased were negligent. However, the extent of negligence is different . The major part of the negligence in causing the accident lies with the Driver of the Lorry, who was negligent and rash in changing the lane and hitting the KSRTC bus, to whom this court is assigning 70% of the negligence. The next major part of the negligence lies with the driver of KSRTC Bus, who if was driving slowly, could have controlled the bus. So, this court assigns him 20% of the negligence. The deceased was also negligent in walking beside a National High Way where pedestrian movement is prohibited and this court assigns 10% of the negligence on him. Therefore, I hold that the accident was caused due to the negligence of Drivers of Lorry, KSRT Bus and the SCCH-25 deceased. Accordingly, I answer Issue No.2 partly in the Affirmative.

LIABILITY

26. The Respondent Nos.2 to 4 have denied the negligence of their respective vehicles. As already discussed this court has held that the Lorry driver is negligent to the extent of 70%, the KSRTC Driver is negligent to the extent of 20% and the deceased was negligent to the extent of 10%. Therefore, the respondents No.1 & 2 being the owner and insurer of the Lorry are jointly and severally liable to pay 70% of the compensation awarded by the court and the Respondent Nos.3 & 4 being the owner and insurer of the KSRTC bus are liable to pay 20% of the compensation awarded by the court. The petitioners are entitled to SCCH-25 compensation of Rs.9,73,900/­ out of which 10% shall be deducted due to contributory negligence of the deceased. Further the KSRTC has given Rs.15,000/­ as exgratia payment to the petitioners. This is admitted by PW.1 during her cross examination. The same also needs to be deducted. Though the Petitioners have claimed compensation of Rs.20,00,000, Petitioners are entitled only for a sum of Rs.8,61,510/­ (Rs.9,73,900/­ ­ Rs.1,12,390/­ (Rs.97,390/­ + Rs.15,000/­). If it is rounded off it comes to Rs.8,61,600/­ along with interest @ 6% per annum. Therefore, the petition needs to be allowed. Accordingly I answer Issue No.3 in the affirmative.