Bharmareddy S/O Laxman vs Mohammed Rouf S/O Ajeemkhan And ...
2022 Latest Caselaw 7674 Kant

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          IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

        DATED THIS THE 30TH DAY OF MAY 2022

                          BEFORE

     THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR


                MFA No.32779/2013 (MV)

BETWEEN:

Bharmareddy S/o Laxman,
Age: 22 years, Occ: Private Employee,
R/o Krishna Village,
Dist: Maheboobnagar (AP)-509 001.
                                                 .....Appellant

(By Sri.Basavaraj R.Math, Advocate)

AND:

1.     Mohammed Rouf S/o Ajeemkhan,
       Age:50 years, Occ: Driver of APSRTC
       Bus No.AP-29/Z-1045,
       R/o APSRTC Depot No.01,
       Hyderabad City (AP)-500001.

2.     The VC & MD APSRTC Hyderabad 20,
       Owner of APSRTC Bus No.AP-29/Z-1045,
       Depot Manager, Hyderabad-1,
       Bus Bhavan, Musheerabad, Hyderabad,
       Medchal, Hyderabad (AP) 500001.
                                              .....Respondents

(Notice to R1 is dispensed with;
By Sri. S.V.Deshmukh, Advocate for R2)
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      This MFA is filed under Section 173(1) of the Motor
Vehicles Act, praying to modify the impugned judgment and
award dated 28.10.2013 passed by the Member MACT (II-ADJ),
Raichur in MVC No.128/2013.


      This   appeal   having   been       heard   and   Reserved   for
judgment on 24.05.2022, coming on for pronouncement of
judgment this day, the court delivered the following:


                            JUDGMENT

This is an appeal filed by the appellant-petitioner

under Section 173(1) of M.V.Act, challenging the

judgment and award dated 28.10.2013 passed in MVC

No.128/2013 by the II Addl. District Judge & MACT,

Raichur, (for short 'the Tribunal'), whereby the

tribunal has dismissed the claim petition filed by the

petitioner under Section 166 of M.V.Act.

2. For the sake of convenience, parties are

referred with the original ranks occupied by them

before the Tribunal.

3. The factual matrix leading to the case are

that on 17.01.2012 at about 5.30 p.m., the

respondent No.1 being the driver of APSRTC bus

bearing registration No.AP-29/Z-1045, drove the said

bus in a rash and negligent manner near Maruti Camp

at Shaktinagar. At that time, the petitioner was

following the said bus on motorbike bearing

registration No.KA-354/E-4500 towards Raichur. It is

further alleged that respondent No.1 drove the bus in

a rash and negligent manner and suddenly applied he

brake without giving any indication and following

traffic rules. As a result, the petitioner who was

following the bus, dashed his motorbike to the bus

and fell down by sustaining injuries. Immediately, he

was shifted to Suraksha Hospital, Raichur and he has

suffered permanent disability. He was earning

Rs.8,000/- per month and contributing towards his

family and now he is unable to work. That the case

was registered in Crime No.5/2012 and as such the

petitioner has filed the claim petition under Section

166 of M.V.Act, claiming compensation.

4. The respondent Nos.1 and 2 appeared and

filed objections denying the allegations and assertions

made thereunder. It is admitted that the bus was

involved in the accident, but it is denied that

respondent No.1 was driving the bus in a rash and

negligent manner. It is contended that respondent

No.1 was driving the bus in slow and cautious manner

on its proper side and there were number of road-

breakers near Shaktinagar. It is alleged that the

petitioner himself was rash and negligent in riding the

motorbike and lost the control and dashed to the rear

side of the bus and sustained injuries. It is also

contended that he has failed to maintain minimum

distance between two vehicles. According to the

respondents, the petition suffers from non-joinder of

necessary parties as owner and insurer of the

motorbike were not impleaded. It is also asserted that

the police have submitted the charge sheet against

respondent No.1 as well as petitioner and petitioner

has pleaded guilty and was convicted and as such

there is no negligence on the part of respondent No.1.

As such the respondents have disputed the claim and

sought for dismissal of the claim petition.

5. The petitioner was examined as PW.1 and

he has placed reliance on documents marked as

Exs.P1 to P5. The driver of the respondent was

examined as RW.1 and placed reliance on three

documents marked as Exs.R1 to R3.

6. After hearing the arguments and

appreciating the oral and documentary evidence, the

tribunal came to the conclusion that there is no

actionable negligence on the part of respondent No.1

in causing the accident and as such dismissed the

claim petition. Being aggrieved by the judgment and

award passed by the tribunal, the petitioner has filed

this appeal.

7. Heard the arguments advanced by the

learned counsel for the appellant and learned counsel

for the respondent-Corporation and perused the

records.

8. Learned counsel for the appellant/petitioner

would submit that both the petitioner and respondent

No.1 were prosecuted and for various compelling

reasons the petitioner has pleaded guilty and that

itself cannot be attributed that he was solely negligent

in causing the accident. He would contend that the

charge sheet was submitted against both the drivers

and as such he would contend that the tribunal ought

to have considered the contributory negligence to the

extent of 50% and hence sought of setting aside the

impugned judgment and prayed for allowing the

appeal.

9. Per contra, learned counsel appearing for

the respondent-Corporation would support the

judgment of the tribunal and contended that the

petitioner has failed to maintain minimum distance

between the two vehicles as per the rules of motor

vehicles. He would also contend that the petitioner

himself in his evidence admitted that the bus was

moving slowly and had he maintained proper distance,

he would have avoided the accident since the bus was

moving slowly, even though, if it is abruptly stopped.

Hence, he would further contend that the petitioner

has already pleaded guilty and respondent No.1 was

acquitted by the criminal Court. Considering these

aspects, the tribunal was justified in dismissing the

claim petition. As such, he would seek for dismissal of

the appeal.

10. Having heard the arguments and perusing

the records, the following point would arise for my

consideration;

Whether the appellant/petitioner proves that the tribunal has erred in dismissing the claim petition?

11. It is an undisputed fact that the petitioner

was rider of the motorbike bearing registration No.KA-

34/E-4500. Further, it is also evident that respondent

No.1 was the driver of APSRTC bus bearing

registration No.AP-29/Z-1045. The evidence further

discloses that the charge sheet was filed against

respondent No.1 as well as petitioner/appellant. It is

evident from Exs.R1 and R2 that the petitioner has

pleaded guilty before the criminal Court. It is evident

from Ex.R3 that respondent No.1 was acquitted. No

doubt, the criminal Court findings may not be relevant

to prove the actionable negligence in this regard. But

the burden is casted on the petitioner to establish that

there is any contributory negligence on the part of the

driver of the bus i.e. respondent No.1.

12. The petitioner/PW.1 in his evidence clearly

admitted that at the accident spot there is first cross

road of Shaktinagar and further he admitted that it is

at a distance of 30 feet from first cross. He has also

admitted that in between there are number of speed

breakers. When there are number of speed breakers,

it is difficult to accept the contention of the petitioner

that the bus was moving speedily. On the contrary,

the petitioner himself in his cross-examination

admitted that the bus was moving slowly. When the

bus was moving slowly and when there are number of

speed breakers, question of abruptly stopping the bus

and the petitioner hitting the bus does not arise at all.

On the contrary, the evidence disclose that the

petitioner himself was rash and negligent as he failed

to maintain proper distance. Had he maintained

proper distance since the bus was moving slowly, he

would have controlled the motorbike immediately and

he could have avoided the accident. The facts speaks

differently. Even the petitioner has not produced the

copy of his driving license to show that he was

possessing valid driving license. Looking to the facts

and circumstances, the actionable contributory

negligence cannot be attributed to the respondent

No.1, who was the driver of APSRTC bus, as the

petitioner himself smashed the bus from rear side,

when the bus was moving slowly. Thus the tribunal

has appreciated all these facts and circumstances in

proper perspective and has rightly come to the

conclusion that the petitioner has failed to establish

actionable negligence on the part of the driver of bus

i.e. respondent No.1.

13. Learned counsel for the appellant would

contend that the matter may be remanded to the

tribunal for fresh consideration to enable the

petitioner to take appropriate steps. But no grounds

are forthcoming for remanding the matter and for

what purpose he is seeking remand is not at all

forthcoming.

14. Under these circumstances, the appeal is

devoid of merits. Considering all the facts and

circumstances, the point under consideration is

answered in the negative and accordingly the appeal

fails. Hence, I proceed to pass the following;

ORDER

The appeal is dismissed.

Sd/-

JUDGE

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