Sri Karunakara Reddy vs The Branch Manager
2022 Latest Caselaw 2880 Kant

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 21ST DAY OF FEBRUARY, 2022

                         BEFORE

       THE HON'BLE MR. JUSTICE P. KRISHNA BHAT

MISCELLANEOUS FIRST APPEAL NO.8423 OF 2011 (MV)

BETWEEN:

       SRI KARUNAKARA REDDY
       S/O. NARAYANA REDDY,
       AGED 24 YEARS,
       RESIDING AT NO.50, IYYAPPA REDDY GARDEN,
       LIC COLONY, YESWANTHPUR,
       BENGALURU-560 022.
                                              ... APPELLANT
       (BY SRI K.V. SHYAMAPRASADA, ADV.)

AND:

1.     THE BRANCH MANAGER
       THE UNITED INDIA INSURANCE CO. LTD.,
       DIVISIONAL OFFICE-5, NO.25,
       SHANKAR NARAYANA BUILDING,
       M.G. ROAD,
       BENGALURU-560 001.

2.     SRI DHANANJAYA K. T.
       S/O. K. THAMMANNA,
       RESIDING AT KODANDAPURA VILLAGE,
       ARASIKERE POST,
       PAVAGADA DISTRICT,
       TUMKUR-561 202.
                                            ... RESPONDENTS
       (BY SRI O. MAHESH, ADV., FOR R-1, &
           NOTICE TO R-2 IS DISPENSED WITH VIDE ORDER
            DATED 3-4-2012)

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     THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT AGAINST THE
JUDGMENT AND AWARD DATED 30-4-2011 PASSED IN M.V.C.
NO.4265 OF 2010 ON THE FILE OF XXI A.C.M.M. & XXIII A.S.C.J.,
BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION      AND    SEEKING      ENHANCEMENT        OF
COMPENSATION.

     THIS MISCELLANEOUS FIRST APPEAL IS COMING ON FOR
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

                        JUDGMENT

This appeal is at the instance of the claimant calling

in question the judgment and award dated 30-4-2011 in

M.V.C. No.4265 of 2010 dated 30-4-2011.

2. Claim petition proceeded on the allegation that

on 29-3-2010 at about 10:00 a.m., while he was a pillion

rider on a motorcycle bearing Registration

No.KA-04 HA-7090 on Bagaluru Main Road and when the

rider of the said motorcycle was taking 'U' turn towards

Bagaluru Cross, at that time, the Driver of the offending

car bearing Registration No.KA-06 B-3824 drove the same

with high speed in a rash and negligent manner and

dashed against the motorcycle resulting in grievous

injuries to him.

3. Before the Tribunal, both the respondents have

entered appearance and filed separate written statements

denying the material averments made in the claim

petition.

4. During trial, the claimant was examined as P.W.1

and an Orthopedic Surgeon from Bowring and Lady

Curzon Hospital was examined as P.W.2 and Exs.P.1 to

P.10 were marked. The respondents did not mark any

witness and Exs.R.1-insurance policy was marked.

5. After hearing the learned counsel on both sides

and perusing the record, the Tribunal awarded

compensation of Rs.1,80,500/- and recorded a finding

that there is contributory negligence on the part of rider of

the motorcycle, on which the claimant was a pillion rider,

to the extent of 40% and on the said basis, awarded

compensation of Rs.1,08,300/- with interest thereon.

6. Contention of the learned counsel for the

appellant-claimant is that the Tribunal has erred in

deducting 40% of compensation towards contributory

negligence, while evidence has established that there is no

fault on the part of rider of the motorcycle. On the other

hand, evidence clearly shows that the accident occurred

on account of rash and negligent driving of the offending

car resulting in injuries to the claimant. He, therefore,

submitted that the finding of the Tribunal on the aspect of

contributory negligence of the rider of the motorcycle to

the extent of 40% is liable to be set aside and the appeal

requires to be allowed.

7. Learned counsel for the respondent-Insurance

Company, per contra, submitted that as per the Regulation

12 of the Rules of the Road Regulations, 1989, (for short,

'Road Regulations'), the rider of the motorcycle was

negligent as he has not taken care to observe the

oncoming traffic and therefore, the Tribunal upon

discussion of evidence has correctly recorded the finding

of contributory negligence of the rider of the motorcycle

and such being the case, there is no merit in the appeal

and the same is liable to be dismissed.

8. I have given my anxious consideration to the

submissions made by the learned counsel on both sides

and perused the records.

9. The case of the appellant-claimant is that on

29-3-2010 at about 10:00 a.m., while he was a pillion

rider on a motorcycle bearing Registration

No.KA-04 HA-7090 on Bagaluru Main Road, the rider of

the said motorcycle had taken 'U' turn in order to proceed

towards Bagaluru Cross, and at that time, the Driver of

the offending car bearing Registration No.KA-06 B-3824

drove the same with high speed in a rash and negligent

manner and dashed against the motorcycle resulting in

grievous injuries to him.

10. Ex.P.2 is the complaint, Ex.P.3 is the charge-

sheet, and the Police after investigation have filed charge-

sheet against the Driver of the offending car. The Police

during investigation have not found anything to show that

the rider of the motorcycle on which the claimant was a

pillion rider has violated Regulation 12 of the Rules of the

Road Regulations, 1989. I have carefully perused the

cross-examination of P.W.1-claimant who was not only

injured pillion rider, but also an eyewitness himself. It is

also required to be noticed that the respondents have not

examined the Driver of the offending car. Therefore,

cross-examination of P.W.1 is more important, especially,

when the charge-sheet is against the Driver of the

offending car itself. In the entire cross-examination of

P.W.1, absolutely, there is nothing elicited regarding the

rider of the motorcycle not taking precaution as stipulated

under Regulation 12 of the Rules of the Road Regulations,

1989. The Tribunal has placed reliance on Ex.P.4-sketch.

A perusal of the same shows that the motorcycle with his

rider after having moved from divider towards right side

had reached to the farther end of the road moving towards

Bagaluru Cross. The car was moving from Bagaluru to

Bagaluru Cross and it has collided with the motorcycle

almost near southern edge of the road. This shows that

the accident had taken place on account of rash and

negligent driving of the Driver of the car himself. The

sketch clearly shows that the Driver of the car passed the

area which is junction of the road and at that time, he

should have taken care to see the motorcycle which was

near southern edge of the road. P.W.1 is an eyewitness

and he has examined himself and further, the

respondents have not examined the Driver of the car and

the sketch map shows spot of the accident is almost at the

edge of the road itself and all these cumulatively suggests

that negligence is entirely on the part of the Driver of the

car resulting in the accident. In that view of the matter, it

has to be observed that the Tribunal has not considered

the cumulative effect of the evidence and therefore, come

to an erroneous conclusion that there was contributory

negligence on the part of the rider of the motorcycle and

therefore, it is liable to be set aside. In that view of the

matter, I am constrained to hold that there is no

contributory negligence on the part of the rider of the

motorcycle and the accident occurred due to rash and

negligent driving of the Driver of the offending car.

Accordingly, I proceed to pass the following

ORDER

i. Appeal is partly allowed;

ii. The finding of the Tribunal to the extent that

there was contributory negligence on the part

of the rider of the motorcycle is set aside;

iii. Respondent No.1-Insurance Company shall

deposit the entire award amount with interest

thereon within four weeks' from the date of

receipt of a certified copy of this judgment, and

iv. Transmit the records to the Tribunal.

Sd/-

JUDGE

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