Karnataka High Court
The Manager vs Smt Sharadamma Dead By Her Lrs. ... on 7 December, 2023
Author: S.Sunil Dutt Yadav
Bench: S.Sunil Dutt Yadav
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NC: 2023:KHC-D:14349-DB
MFA No. 102453 of 2023
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 7TH DAY OF DECEMBER, 2023
PRESENT
THE HON'BLE MR JUSTICE S.SUNIL DUTT YADAV
AND
THE HON'BLE MR JUSTICE VIJAYKUMAR A.PATIL
MISCELLANEOUS FIRST APPEAL NO. 102453 OF 2023 (MV-D)
BETWEEN:
1. THE MANAGER,
HADAGALI DEPOT, HADAGALI, BALLARI DIST.
2. THE DIVISION MANAGER, NEKRTC,
BALLARI, DIVISION BALLARI
3. THE MANAGING DIRECTOR,
KSRTC, SHANTI NAGARA, BENGALURU.
ALL THE ABOVE APPELLANTS
ARE REPRESENTED BY CHIEF LAW OFFICERS,
KSRTC, CENTRAL OFFICE, KALABURAGI.
...APPELLANTS
(BY SRI. S C BHUTI., ADVOCATE)
SHIVAKUMAR AND:
HIREMATH
Digitally signed
by SHIVAKUMAR
1. SMT SHARADAMMA DEAD BY HER LRS.
HIREMATH
Date: 2023.12.15
12:58:52 +0530
RENUKAMMA W/O. PARASAPPA
AGED ABOUT 43 YEARS, HOUSE HOLD WORKER,
R/O. K. KALLAHALLI VILLAGE,
HARAPANAHALLI TALUK,
VIJAYANAGAR DISTRICT-583 213.
2. VANAJAKSHI W/O. YALAPPA.
AGED ABOUT 40 YEARS, HOUSE HOLD WORKER,
R/O. DAMBALLA VILLAGE,
MUNDARAGI TALUK,
GADAGA DISTRICT-582113.
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MFA No. 102453 of 2023
3. PRASURAMA S/O. NAGENDRAPPA
AGED ABOUT 38 YEARS,
R/O. K.KALLAHALLI VILLAGE,
HARAPANAHALLI TALUK,
VIJAYANAGARA DISTRICT-583 213.
4. MALLESHANAIK S/O. LATE LACHYA NAIK
AGED ABOUT43 YEARS, DRIVER OF KSRTC BUS,
BEARING NO.KA-34/F-1037,
HADAGALI DEPOT,
R/O. BEVINAHALLI SANNA THANDA,
HARAPANAHALLI TALUK,
BALLARI DISTRICT-583 213.
5. NAGENDRAPPA BANAKER,
S/O LATE CHANNABASAPPA,
AGED ABOUT 60 YEARS, AGRICULTURIST,
R/O.K.KALLAHALLI VILLAGE,
HARAPANAHALLI TALUK,
DAVANAGERE DISTRICT-583213
...RESPONDENTS
(BY SRI.CHANDRASHEKHAR.M.HOSAMANI, ADV FOR R1, R2, R3 AND
R5; R4 NOTICE DISPENSED WITH, SRI. NAGARAJ.C.KOLLOORI, ADV
FOR R2)
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLE ACT, 1988, PRAYING TO, SET ASIDE THE JUDGMENT AND
AWARD PASSED BY THE COURT OF THE SENIOR CIVIL JUDGE AND
MOTOR ACCIDENT CLAIM TRIBUNAL-XI AT HARAPANAHALLI IN
M.V.C.NO. 743/2018 DATED 29.10.2022 IN THE INTEREST OF
JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR ADMISION, THIS DAY,
VIJAYKUMAR A.PATIL, J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the NEKRTC against the
judgment and award dated 29.10.2022 passed by the
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Senior Civil Judge and MACT-IX, Harapanahalli (hereinafter
referred to as 'the Tribunal') in MVC No.743/2018 whereby
the claim petition filed by the respondent/claimants has
been allowed awarding compensation of Rs.18,51,600/-
with interest at 9% p.a. from the date of petition till
realistion.
2. Brief facts giving rise to filing of this appeal are
that one Sri B. Manjunath Bankar along with his friends
was proceeding on a motorcycle bearing No.KA-17/EX-
4855. At that time, the respondent No.1/driver of the
KSRTC bus bearing No.KA-34/F-1037 came from Bavihalli
and he was proceeding towards Bannikallu village in a rash
and negligent manner, dashed the motorcycle resulted in
accident. Due to the impact, the said B. Manjunath
Bankar who was pillion rider sustained grievous injuries
and later succumbed to those injuries. Hence, the claim
petition was filed seeking compensation for the said of Sri
B. Manjunath Bankar.
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3. The claim petition was opposed by the
respondents by filing objections contending that the
deceased was a pillion rider and it is a case of triple riding.
Hence, there is a violation of statutory provisions and also
the rider has contributed to the accident in question.
Hence, the NEKRTC is not liable to pay the compensation
and sought for dismissal of the claim petition.
4. The Tribunal framed the issues and recorded
the evidence of the parties. The claimant No.2 has
examined himself as PW-1, got marked Exs.P-1 to P10 and
respondent-NEKRTC examined respondent No.1 as RW-1.
The Tribunal on appreciation of the material evidence on
record, awarded compensation of Rs.18,51,600/- along
with 9% p.a. interest directing the NEKRTC to pay the
entire compensation. Being aggrieved by the same, the
NEKRTC is in appeal.
5. Learned counsel Sri S.C. Bhuti for the
appellant/NEKRTC submits that the Tribunal has failed to
consider the fact that there were three persons travelling
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on the motorcycle and the deceased was one of the pillion
riders which is in violation of Section 128 of Motor Vehicles
Act, 1988. He further submits that the rider of the
motorcycle was not having valid driving licence and
knowing fully well the said fact, the deceased accompanied
him and hence, they have contributed negligence to the
accident in question. Hence, the entire liability ought to
have fastened on the rider of the motorcycle and not on
the NEKRTC. He also submits that NEKRTC has examined
the driver of the bus as RW-1 who has clearly deposed
that it is the rider of the motorcycle who was negligent
and had caused accident. However, the tribunal has not
appreciated the said evidence in its proper perspective
resulted in fastening of entire liability on the NEKRTC and
sought for allowing of the appeal.
6. Per contra, learned counsel Sri Chandrashekhar
M. Hosamani for the respondent/claimants supports the
impugned judgment and award of the tribunal and submits
that the NEKRTC has failed to establish before the tribunal
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that the rider of the motorcycle was negligent and
contributed to the accident in question and it is a case of
pillion rider and there is no question of any negligence on
his part.
7. Having heard the learned counsel for the
appellant/NEKRTC, learned counsel for the respondents/
claimants, perused the memorandum of appeal. The point
that arises for consideration in these appeals is:
"Whether the tribunal has justified in
fastening the entire liability on the NEKRTC?"
8. The answer to the above point is in the
affirmative for the following reasons:
(a) The appellant/NEKRTC and respondent claimants do
not dispute that one B. Manjunath Bankar died in the
road traffic accident on 25.01.2018 and also do not
dispute that the deceased was pillion rider on the
motorcycle bearing No.KA-17/EX-4855. It is also not
in dispute that the involvement of the bus bearing
No.KA-34/F-1037 belonging to NEKRTC. The
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appellant/NEKRTC has contended that the accident
was caused due to rash and negligent riding of the
motorcycle and deceased was one of the pillion
riders. The said contention is required to be rejected
as the appellant/NEKRTC has not adduced any
independent evidence before the tribunal to
substantiate the said contention. No doubt, the
appellant/NEKRTC examined its driver as RW-1.
However, he being the interested witness, no much
credence can be given to his oral testimony in the
absence of any corroborative evidence on record.
Nothing has prevented the NEKRTC from adducing
evidence of any independent witness to substantiate
its claim that rider of the motorcycle was negligent
which resulted in causing accident. In the instant
case, the deceased B. Manjunath Bankar was
admittedly a pillion rider, hence, the question of his
negligence would not arise as he was not the rider of
the motorcycle. On this count also the contention of
the appellant/NEKRTC is required to be rejected.
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(b) It would be useful to refer the decision of the Hon'ble
Supreme Court in the case of Mohammed Siddique
and another Vs. National Insurance Co. Ltd.
And others1. The relevant paragraphs are extracted
hereinbelow:
"12. It is seen from the material on record that the
accident occurred at about 2 a.m. on 5.9.2008.
Therefore, there was no possibility of heavy traffic on
the road. The finding of fact by the Tribunal, as
confirmed by the High Court was that the motor cycle,
on which the deceased was travelling, was hit by the
car from behind and that, therefore, it was clear that
the accident was caused by rash and negligent driving
of the car. In fact, the High Court confirms in para 4 of
the impugned order that the motor cycle was hit by the
car from behind. But it nevertheless holds that 3
persons on a motor cycle could have added to the
imbalance. The relevant portion of para 4 of the order
of the High Court reads as follows:
"On careful assessment of the evidence led, this
Court finds substance in the plea of the insurance
company. While it is correct that the offending car
had no business to strike from behind against the
motor cycle moving ahead of it, even if the motor
2020 ACJ 751
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cycle was changing lane to allow another vehicle to
overtake, the fact that a motor vehicle meant for
only two persons to ride was carrying, besides the
driver, two persons on the pillion would
undoubtedly have added to the imbalance."
13. But the above reason, in our view, is flawed.
The fact that the deceased was riding on a motor cycle
along with the driver and another person may not, by
itself, without anything more, make him guilty of
contributory negligence. At the most it would make him
guilty of being a party to the violation of the law.
Section 128 of the Motor Vehicles Act, 1988, imposes a
restriction on the driver of a two-wheeled motor cycle,
not to carry more than one person on the motor cycle.
Section 194-C, inserted by the Amendment Act 32 of
2019, prescribes a penalty for violation of safety
measures for motor cycle drivers and pillion riders.
Therefore, the fact that a person was a pillion rider on a
motor cycle along with the driver and one more person
on the pillion may be a violation of the law. But such
violation by itself, without anything more, cannot lead
to a finding of contributory negligence, unless it is
established that his very act of riding along with two
others contributed either to the accident or to the
impact of the accident upon the victim. There must
either be a causal connection between the violation and
the accident or a causal connection between the
violation and the impact of the accident upon the
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victim. It may so happen at times that the accident
could have been averted or the injuries sustained could
have been of a lesser degree, if there had been no
violation of the law by the victim. What could otherwise
have resulted in a simple injury, might have resulted in
a grievous injury or even death due to the violation of
the law by the victim. It is in such cases, where, but for
the violation of the law, either the accident could have
been averted or the impact could have been minimised,
that the principle of contributory negligence could be
invoked. It is not the case of the insurer that the
accident itself occurred as a result of three persons
riding on a motor cycle. It is not even the case of the
insurer that the accident would have been averted, if
three persons were not riding on the motor cycle. The
fact that the motor cycle was hit by the car from
behind, is admitted. Interestingly, the findings recorded
by the Tribunal that the deceased was wearing a helmet
and that the deceased was knocked down after the car
hit the motor cycle from behind, are all not assailed.
Therefore, the finding of the High Court that 2 persons
on the pillion of the motor cycle could have added to
the imbalance, is nothing but presumption and is not
based either upon pleading or upon the evidence on
record. Nothing was extracted from PW 3 to the effect
that 2 persons on the pillion added to the imbalance.
14. Therefore, in the absence of any evidence to
show that the wrongful act on the part of the deceased
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victim contributed either to the accident or to the
nature of the injuries sustained, the victim could not
have been held guilty of contributory negligence. Hence
the reduction of 10 per cent towards contributory
negligence is clearly unjustified and the same has to be
set aside."
9. The Hon'ble Supreme Court in the above
referred decision has clearly enunciated that unless there
is sufficient evidence on record to establish contributory
negligence of the rider of the motorcycle merely there
were two pillion riders itself would not constitute the
contributory negligence. In the case on hand, there is no
evidence whatsoever on record to come to the conclusion
that the pillion rider has contributed negligence to the
accident in question.
10. It is not in dispute that the jurisdictional police
after completion of investigation, filed charge sheet only
against the driver of the offending bus which further
demonstrates that the driver of the bus was negligent
which has resulted in causing accident. Insofar as the
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contention of NEKRTC that the rider of the motorcycle was
not possessing valid and effective driving licence on the
date of accident, the said contention is also required to be
rejected for the reason that the appellant/NEKRTC has not
made any attempt to secure any information to verify
whether the rider of the motorcycle was not possessing
valid and effective driving licence on the date of accident
by issuing notice to the claimants to produce the driving
licence or to the owner of the motorcycle or to the RTO
asking him to produce the driving licence. In the absence
of any such attempt or investigation, the contention of the
appellant/NEKRTC that the rider of the motorcycle was not
having valid driving licence is unsustainable.
11. The contention of the appellant/NEKRTC
corporation that the tribunal has committed an error in
awarding interest at the rate of 9% p.a. on the
compensation is required to be accepted. Taking note of
the rate of interest paid by the nationalised bank on the
term deposits, it would be just and appropriate to award
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interest at the rate of 6% p.a. on the compensation
amount. Accordingly, the respondent/claimants are
entitled for interest at the rate of 6% p.a. on the
compensation amount.
12. The tribunal has detailed reasons for fastening
the liability on the NEKRTC. The findings recorded by the
tribunal are based on the evidence on record, which are
neither perverse nor contrary to the evidence on record
calling for any interference.
13. Learned counsel for appellant/NEKRTC has
brought to the notice of this court that the NEKRTC has
paid the interim compensation of Rs.35,000/- to the
claimants which has been withdrawn by the claimants and
the same has been deducted by the tribunal while drawing
the award is taken note of.
14. In view of the aforementioned, we pass the
following:
ORDER
(i) The appeal is disposed of.
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(ii) The judgment and award dated
29.10.2022 passed by the Senior Civil
Judge and MACT-IX, Harapanahalli in
MVC No.743/2018 is modified only to the
extent of awarding the interest on the
compensation amount at the rate of 6%
per annum from the date of claim
petition till date of realization.
(iii) Registry to transmit the amount
deposited by the appellant/NEKRTC
along with records to the Tribunal
forthwith.
(iv) No order as to costs.
Sd/-
JUDGE
Sd/-
JUDGE
NAA
