1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF OCTOBER 2020 PRESENT THE HON’BLE MR.JUSTICE ALOK ARADHE AND THE HON’BLE MR.JUSTICE H.T.NARENDRA PRASAD MFA NO.2994 OF 2016(MV) BETWEEN: Royal Sundaram Alliance Insurance Company Limited, Raghavendra Complex, Ground floor, No.186/7, I Cross, Hosur Main Road, Wilson Garden, Below Sundaram Finance Ltd., Bangalore-560 027. By Royal Sundaram Alliance Company Ltd., Subramaniam Building, II Floor, No.1, Club House Road, Annsasalai, Chennai-600 002. By its Manager. …. Appellant (By Sri.O.Mahesh, Adv.) 2 AND 1. Smt.Shariff Ayesha Noorulla, @ Ayesha, W/o Late. Asif Javeed, Aged about 31 years. 2. Saadiya Fathima, D/o Late. Asif Javeed, Aged about 9 years. 3. M.R.Javeed Iqbal, S/o Late. Syed Athaulla, Aged about 68 years. 2nd Respondent is minor by her M/G Smt. Shariff ayesha Noorulla. All are residents of No.28, 9th ‘A’ Main, B.T.M. 1st stage, Bangalore-560 029. 4. Hombe gowda, S/o Thimme gowda, 24, Harsha Layout, 2nd Cross, 2nd Main, Yelachenahalli, K.R.Puram Road, Bangalore-560 062. …Respondents (R1 & R3 are served: R2 is minor Represented by R1: Notice to R4 is dispensed with v/o dated:27.01.2020) This MFA is filed under section 173(1) of MV Act against the judgment and award dated: 31.12.2015 passed in MVC No.6894/2010, on the file of the VIII 3 Additional Small Causes Judge and XXIII ACMM, Member, MACT, Bengaluru, awarding compensation of Rs.85,63,200/- with interest @ 6% p.a. from the date of petition till realization. This MFA coming on for admission, through video conference this day, H.T. Narendra Prasad J., delivered the following: JUDGMENT This appeal under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’, for short) has been filed by the Insurance Company being aggrieved by the judgment dated 31.12.2015 passed by the Motor Accident Claims Tribunal, Bangalore. 2. Facts giving rise to the filing of the appeal briefly stated are that on 25.05.2010, when the deceased was proceeding in a car Bearing registration No. KA-03-MD-1223 along with his family members to attend function at Tayalur, Mulabagal Hobali, Kolar District near Mulbagal and moving on extreme left side of the road near V.Guttahalli of Mulbagal taluk, at that 4 time, a goods vehicle bearing registration No. KA-05-D- 8428 being driven in a rash and negligent manner came from opposite direction and struck the Car head. Due to the impact, the deceased and his mother, Smt.Nayeemunnissa, suffered fatal injuries and succumbed to the injuries. Other family members in the car suffered grievous injuries and were hospitalised. 3. The claimants filed a petition under Section 166 of the Act on the ground that the deceased at the time of accident was employed as Senior Software Engineer and was earning Rs.2,50,000./- p.m. Due to death of the deceased, they have lost the bread earner of the family. 4. On service of summons, respondent Nos.1 and 2 appeared through their counsel and filed written statement. The respondent No.1 has pleaded ignorance as to the inmates of the car being suffered fatal injuries. He denies the petition averments and submits that the 5 driver of the canter had valid driving licence and he had policy from the respondent No.2. The respondent No.2 has denied averments made in the petition. It was pleaded that the petition itself is false and frivolous in the eye of law. It was further pleaded that the accident was due to the rash and negligent riding of the car by its driver. The income, age and avocation of the deceased and claimants is denied. It was further pleaded that the quantum of compensation claimed by the claimants is exorbitant. Hence, he sought for dismissal of the petition. 5. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimants, in order to prove their case, examined claimant No.1 as PW-1 and 8 other witnesses as PWs-2 to 9 and got exhibited documents namely Ex.P1 to Ex.P47. On behalf of respondents, three witnesses were examined as RWs-1 to 3 got exhibited 6 documents namely Ex.R1 to Ex.R4. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of contributory negligence on the part of the drivers of both the vehicles. The Tribunal further held that the claimants are entitled to a compensation of Rs.85,63,200/- after deducting 25% negligence on the part of the driver of the car along with interest at the rate of 6% p.a. Being aggrieved, this appeal has been filed by the Insurance Company. 6. The learned counsel for the Insurance Company has contended that the Tribunal ought to have seen that the claim petition was not maintainable either in law or on facts and was bad for non-joinder of proper and necessary parties, that is, Driver, owner and insurer of car if any, when two vehicles were stated to have been involved in the alleged accident and that too when spot mahazar (Exhibit P-2) and spot sketch with 7 Mahazar (Ex.R-2 and Ex.R-4 photographs) clearly established that two vehicles were involved and alleged accident occurred when car in question was moving in prohibited direction of our lane High way (bifurcated by a divider in between) from West to East of Chennai- Bengaluru lane meant for vehicle moving from East to West direction only. The finding of the Tribunal on issue of negligence to certain extent as to entry of car from prohibited direction is proper but so far as contribution to cause of alleged accident by respective car driver and lorry driver is not just and proper for having made proper observation as to position of two vehicles in paragraphs 26 and 27 of its judgment with reference to evidence of both drivers and spot Mahazar and sketch. The Tribunal in the circumstance having held and also found to be that entry of the car was improper and so also it’s direction on four lane highway and also considering respective damages to left side of both vehicles, was not justified in holding that driver of car 8 contributed to cause of accident in question to an extent of 25% and driver of lorry to an extent of 75% is highly prejudicial besides being erroneous and illegal in the circumstances of the claim on hand. The Tribunal ought to have held that car driver was negligent to an extent of 100% if not to an extent 75%, since it was established that car driver entered dedicated lane from prohibited direction illegally and in contravention of road Regulations. Further, the provisions of Section 134(c) and 158(6) of MV Act are not complied with. Regarding quantum of compensation, even though the claimants claim that the deceased was employed as Senior Software Engineer and was earning Rs.2,50,000./- p.m. and produced salary particulars as per Ex.P-43, they have not examined the employer of the deceased. Therefore, the compensation awarded by the Tribunal is excessive. Hence, he sought for allowing the appeal. 9 7. Respondents are served and unrepresented. 8. We have considered the submissions made by the learned counsel for the appellant and have perused the records. 9. The case of the claimants is that on 25.05.2010, when the deceased was proceeding in a car Bearing registration No. KA-03-MD-1223 along with his family members to attend function at Tayalur, Mulabagal Hobali, Kolar District near Mulbagal and moving on extreme left side of the road near V.Guttahalli of Mulbagal taluk, at that time, a goods vehicle bearing registration No. KA-05-D-8428 being driven in a rash and negligent manner came from opposite direction and struck the Car head. Due to the impact, the deceased and his mother, Smt.Nayeemunnissa, suffered fatal injuries and succumbed to the injuries. Other members of the family suffered grievous injuries and were 10 hospitalized. The respondents have pleaded that the accident occurred due to negligence of the car driver. 10. It is well settled in law that when an accident happens through the combined negligence of two persons, he alone is liable to the other who had the last opportunity of avoiding the accident by reasonable care, and who then knew or ought to have known of the danger caused by the other’s negligence. [See: SALAMOND ON THE LAW OF TORTS, TWELFTH EDITION 1957 PAGE 439-441]. The general rule is that the vehicle should be driven at a speed which enables the driver to stop within the limits of his vision and failure to do this will almost always result in the driver being held, in whole or in part, responsible for the collision. [See: CLERK AND LINDSELL ON TORTS, ELEVENTH EDITION, 1954 PAGES 368-370]. It is equally well settled legal proposition that burden of proving negligence lies on the person who alleges it. 11 However, facts of the accident may by themselves constitute evidence of negligence and to such a case the Doctrine of res ipsa loquitor apply which means the things speak for itself. The aforesaid rule is one of the exception to the general rule that burden of proving negligence lies on the person who alleges it. The Supreme Court in ‘MUNICIPAL CORPORATION OF GREATER BOMBAY VS. LAKSHMAN IYER AND ORS.’ AIR 2003 SC 4182 held that the crucial question in case of contributory negligence is whether either party could by reasonable care, have avoided the consequences of other’s negligence. 11. A division Bench of this court in ‘SHARADABAI VS. KARNATAKA STATE ROAD TRANSPORT CORPORATION’, ILR 1987 KAR 2730 has held that in order to discharge the burden of proof with regard to contributory negligence, it is unnecessary for the propounder of that defence to adduce evidence 12 about the matter and contributory negligence can be and very often is inferred from the evidence already adduced by the claimants or from the perceptive facts. However, the finding with regard to contributory negligence has to be recorded on the basis of proper consideration of the pleadings and legal evidence adduced by both the parties and the same cannot be based merely on police records. [See: ‘MINUROUT VS. SATYA PRADYUMNA MOHAPATRA’, (2013) 10 SCC 695 AND ‘SARALA DEVI VS. ROYAL SUNDARAM ALLIANCE INSURANCE CO. LTD.,’, (2014) 15 SCC 450]. It is well settled in law that burden to prove breach of duty on the part of the victim lies on the insurance company and the insurance company has to discharge the burden. [SEE: ‘USHA RAJ KHOWA VS. PARAMOUNT INDUSTRIES’, (2009) 14 SCC 71]. In ‘MANGALA RAM VS. ORIENTAL INSURANCE CO. LTD.’, (2018) 5 SCC 656]. The Supreme Court in NATIONAL INSURANCE CO. LTD. Vs. SINITHA 13 (2012) 2 SCC 356, while dealing with nature and scope of liability under Section 163(A) of the Act, held that onus of proof of contributory negligence lies on the shoulders of the defendant, in a proceeding under Section 163(A) of the Act and in case it is found that deceased had contributed in causing the accident, the compensation under Section 163(A) of the Act may be reduced on proof of such contributory negligence. 12. In the backdrop of aforesaid well settled legal principles, we may examine the facts of the case in mind. To prove the negligence, the claimants have examined claimant No.1 as PW-1 and other witnesses and produced FIR at Ex.P-1, spot mahazar at Ex.P2, inquest mahazar at Ex.P-3. The specific case of the claimants; PW-8, eye witness to the spot mahazar and PW-2, eye witness to the accident is that the accident occurred due to the rash and negligent driving of the goods vehicle by its driver. The Insurance Company has 14 examined the driver of the goods vehicle as RW-3, who has deposed that the accident occurred due to rash and negligent driving of the car. Immediately after the accident, Ayesha.S. gave a complaint to the police and the police have registered FIR against the driver of the goods vehicle and drawn spot mahazar as per Ex.P-2 and after investigation, charge sheet has been filed against the driver of the goods vehicle. As per the Spot Sketch, there is a space of 6 ft. from the spot to the centre median. In fact impact has occurred as the Car went straight towards the Truck and both vehicles colluded head on, they have changed their direction one towards right and other towards left. The impact and injuries to the victims and death of the victims discloses that, the car driver has taken to left side of the Truck, to which, left portion of both vehicles have struck head on. The damages to the vehicle as per IMV Report discloses that front and left portion of the Car, in entirety has 15 been damaged. The Lorry left and front portion has been extensively damaged. 13. All these facts discloses that, the Car driver had ventured into right side of the road and further tried to take the Car towards extreme right. As a result, the accident has occurred. Considering the person sitting on the left to the driver and behind him were killed in the incident discloses that, entire force of the car and the Truck has transgressed towards left portion of the Car only seems that, driver and behind him one passenger along with baby are safe, rather less injured. It is also very clear from the spot sketch and the evidence of the parties that the driver of the truck drove the same at a high speed and in a rash and negligent manner. The truck was a heavy vehicle and if the driver of the truck had taken little caution, he could have avoided the accident. And it is clear from Ex.R-2 and Ex.P-2, there is no tyre marks on the road to show that the driver of the 16 truck had applied brake to avoid the accident. The police after enquiry has filed chargesheet against the driver of the truck. 14. Taking into consideration the oral and documentary evidence available on record, the Tribunal has rightly held that even the driver of the car was negligent and has contributed to the accident to an extent of 25% and the driver of the goods vehicle has contributed to the accident to an extent of 75%. Accordingly, there is no error in the finding of the Tribunal in respect of negligence is concerned. 15. In respect of quantum of compensation is concerned, the Tribunal based on the evidence of the parties and materials available on record has awarded just and reasonable compensation under all heads. In the result, the appeal is dismissed. 17 The amount in deposit is ordered to be transferred to the Tribunal for disbursement. Sd/- JUDGE Sd/- JUDGE DM/-