Balappa vs Yallappa

K.N. Phaneendra, J.—The appellants, who are Respondent Nos. 1 & 2 before the trial Court in MVC No. 172/2001 on the file of the III Addl. Civil Judge (Sr. Dn.) and CJM, Dharwad, have preferred this appeal challenging the judgment and award dated 27.04.2007 passed by the trial Court awarding compensation of Rs. 1,71,800/- in favour of the petitioner/claimant namely Yallappa, son of Vithal Sunagar along with interest at 6% p.a. and fastening the entire liability on the appellants/Respondent Nos. 1 & 2 and also dismissed the petition against Respondent No. 3-Insurance Company.

For the purpose of convenience, the ranking of the parties herein are referred to as per their ranking in the trial Court.

The brief factual matrix of the case are that, the claimant-Yallappa filed a claim petition stating that, on 26.11.2000 at about 7.30 p.m., when he was proceeding on his Yamaha Motor cycle bearing Registration No. CTB 6476, along with his friend-Sri. Sachin, on P.B. Road, opposite to the Navalur Railway Station Cross, Dharwad, a tractor trailer bearing Registration No. MEZ-4691/4692 came in a rash and negligent manner without giving any signal and blowing the horn, from Navalur Station Cross Road, from Dharwad Side and dashed against Yamaha motor cycle, on which the claimant and his friend were travelling. Due to the accident, the Yamaha Motor Cycle completely damaged and both the rider and pillion rider sustained grievous injuries. Both of them were shifted to Civil Hospital and after wads to the hospital of Dr. Dilip Deshpande and thereafter, they were shifted to Vivekananda Hospital and Duggam Hospital for further treatment. They had sustained severe injuries due to the impact of the accident.

It is specifically contended that the accident happened mainly due to the rash and negligent driving of the driver of the Tractor. The owner, driver of the said tractor (the appellants herein respectively) and Respondent No. 3-New India Insurance Co. Ltd. contested the proceedings. As there was no insurance to the said vehicle and policy was not in force, the trial Court has dismissed the petition against the Insurance Company. It is not the case of the appellant/owner before this Court that the said tractor was insured with any Insurance Company. On the other hand, it is the case of the appellants that the accident was mainly due to the rash and negligent driving of the motor cycle ridden by the claimant himself and therefore, the trial Court ought to have fastened the liability on the claimant as well as on the insurer of the motor cycle.

On these rival contentions, the trial Court after framing of certain issues proceeded with the case. On the side of the claimant, the claimant was examined himself as PW.1 and he examined the Doctor, who has treated him as PW.2 and got marked Ex. P.1 to Ex. P.160. On the side of the respondents, RW.1/Owner of the vehicle and RW.2-Babusaheb Dadasaheb Desai of Narendra were examined. RW. 1 is none other than the younger brother of RW.2, who is alleged to be present as he was travelling in the said tractor on the very date, along with the driver of the said tractor. The trial Court after analyzing the entire materials on record, came to the conclusion that the accident was due to the rash and negligent driving of the tractor by its driver. Therefore, it fastened the liability on the owner and the driver of the tractor, against which judgment, the present appeal is preferred.

Learned counsel for the appellants has strenuously contended that, though the criminal case has been foisted against the driver of the tractor, in fact, the evidence has been elaborately led before the trial Court to show that it was due to the negligence of the rider of the motor cycle, the accident-in-question has happened. Though lengthy cross-examination has been adverted to so far as PWs. 1 & 2 are concerned, the whole case of the appellants is that, on that particular date of the incident, the driver of the tractor-trailer was very careful in driving the vehicle and he was moving the said tractor on the left side of the road. But the rider of the motor cycle itself came and in a hurry to over take the tractor, dashed to the front side portion of the tractor and caused the accident, due to which, he sustained injuries.

The sum and substance of the cross-examination and suggestions made to that effect are, RW. 1 is not an eyewitness to the incident; He is the owner of the tractor; He deposed before the court that the accident was not happened due to the rash and negligence of his brother. RW.2 was Respondent No. 1 before the trial Court, who was driving the tractor on that particular day. Though it is stated that the said contention is taken in the criminal case, the above said contention of the owner of the vehicle in my opinion false on the grounds that though elaborate evidence has been led and cross-examination has been adverted to RW. 1 & 2, nevertheless, the criminal case foisted against the driver of the tractor had ended in conviction of the driver of the tractor before the Appellate Court beyond all reasonable doubt and the court came to the conclusion in C.C. No. 57/2001 on the file of the Principal, Chief Judicial Magistrate, Dharwad, that the accident was occurred due to the rash and negligent driving of the driver of the tractor. Whatever may be the evidence that is led before the Tribunal, in my opinion, it would not come to the help of the appellant/owner herein or to the driver of the tractor, because of the simple reason that immediately after the accident or even prior to filing written statement before the trial Court, no effort has been made either by the driver of the tractor or by the owner of the tractor to lodge any criminal complaint against the rider of the motor cycle alleging that the accident was happened due to the negligent riding of the motor cycle by the claimant. On the other hand, immediately after the accident, the complaint was lodged against the driver of the tractor and in fact after due investigation, the police submitted the charge sheet in C.C. No. 57/2001 before the Principal CJM, Dharwad. After due contest, the criminal case ended in conviction of the driver of the tractor.

Learned counsel for the appellants has produced before this court a certified copy of the judgment in the appeal passed by the learned Principal Sessions Judge, Dharwad in Crl. A. No. 57/2002, against the judgment of conviction and sentence passed in C.C. No. 57/2001 against the Accused No. 1 & 2, the driver and the owner of the tractor-in-question.

I have also carefully perused the said judgment passed by the Principal Sessions Judge, Dharwad, vide its judgment dated 24.04.2003. The learned Judge, in fact, elaborately discussed and evaluated the evidence on record once again and ultimately at Page-16 of the judgment he has come to the conclusion that the driver of the tractor was in fact negligent and due to his negligence, the accident happened. It is worth here to extract the portion of the observations made by the learned Sessions Judge in the said appeal:-

"The theory canvassed by the driver of the Tractor cannot be accepted. Admittedly he was entering the National High Way from Navalur Railway from Navaloor Railway Station Road. While doing so, he should have given preference to the vehicles which are coming from his right side. No doubt, in the instant case, there is an indication to show that the driver of the tractor had taken his vehicle almost to the center of the P.B. Road. However, he wants to take turn to the right side for the purpose of going back to Dharwad. While doing so, he should have been more cautious. However, in the instant case, the materials placed on record, gives an indication that the accused has not exercised such due care or precautionary measures, on the contrary there is an indication to show that the tractor driven by him was facing west, soon after the impact. If he had taken turn to right with a view to proceed towards Dharwad and at that moment, the bike ridden by PW.2 had hit his vehicle, the Tractor should have faced North only, i.e., towards Dharwad Side. However the materials placed on record as recorded in Ex. P5 do not reflect so. Therefore, I am of the considered opinion that the contention of the learned Counsel for the accused in this regard will not hold any water. Therefore, I find no reason to interfere with the finding given by the trial Court that the driver of the Tractor was rash and negligent in driving his vehicle on the day in question. Since the prosecution has failed to establish that Accused No. 1 was the driver of the tractor involved in the accident. - Therefore, the trial Court has acquitted Accused Nos. 1 & 2 for the offences punishable under Sections 279, 337, 388 of IPC and Section 187 of the M.V. Act, etc."

The above said observation made by the Appellate Court clearly discloses that the driver of the Tractor was negligent in driving the vehicle and due to his negligence, the accident-in-question happened. Therefore, so far as the offences in the said criminal case are concerned, the prosecution has to proved its case beyond all reasonable doubt. Insofar as the civil matters are concerned, the fact of accident can be proved by means of preponderance of probabilities. The criminal court in the said criminal case in C.C. No. 57/2001 after due deliberations and corroborated its finding with regard to the rash and negligent driving of driver of the tractor and which has been confirmed by the appellate Court. It goes without saying that the negligent act of the driver in driving the tractor has been proved beyond all reasonable doubt. It is noticed that the Appellate Court has come to the conclusion that the prosecution has failed to prove the identity of Accused No. 1 as the person who was driving the tractor on that particular date and on that sole ground, the appellate court has acquitted Accused No. 1 in the said case. But, if I analyze the objections taken by the owner of the Tractor and the evidence given by RWs. 1 & 2 before the Tribunal, which clearly goes to show that, on that particular date, Respondent No. 2 was actually driving the tractor. But, according to RWs. 1 & 2, he was not negligent in driving the vehicle and the rider of the motor cycle was negligent. So, it goes without saying that, what has not been proved before the Appellate Court and the gap which was there before the Appellate Court is properly filled-up in the evidence of RWs. 1 & 2, clearly establishing the fact before the Tribunal that on the date of the accident, RW.2 was actually driving the tractor. But, they have taken up a contention that, not due to the negligence of the driver of the tractor the accident has taken place. But, this has been falsified by the judgment of the Criminal Court and the Appellate Court. Therefore, looking from any angle, it cannot be said that the Appellants have proved any negligence on the part of the claimants, more so, the judgments passed in the said criminal case, affirmed by the Appellate Court, can not be easily brushed aside. Therefore, I am of the opinion that this court cannot take up any other view even though if it is possible on the same evidence, from that of the opinion expressed by the Tribunal. Therefore, I do not find any strong reasons to come to the conclusion that the rider of the motor cycle was negligent in riding the vehicle and due to his negligence, the accident has happened. Therefore, the appeal deserves no merit and the same is liable to be dismissed.

Though the appellants have taken up the contention that the award passed by the trial Court is exorbitant, but the main ground urged in the memorandum of appeal is with regard to the negligence on the part of the motor cycle rider. At Para-18, in only one sentence, the appellants have stated that the award passed by the trial Court is on higher side. But, it is not stated therein as to what would be just and reasonable compensation that the trial Court ought to have been awarded and as to how the amount awarded is exorbitant, is not explained. But on perusal of the order of the trial Court, it is noticed that the trial Court has taken into consideration the documents produced before the court with regard to the injuries sustained by the injured person and also the evidence of the Doctor-PW.2, who categorically stated that the petitioner had suffered several fractures and there was disability to the extent of 15% etc. On considering the medical expenses and loss of earning capacity of the claimant, the trial Court has awarded reasonable compensation of Rs. 1,71,800/-. I do not find any abnormality in passing such award. Therefore, on this ground also, the judgment and award passed by the trial Court need not be interfered with. Therefore, the following order is passed:-

The appeal is dismissed.

The office is directed to release the amount in deposit, in favour of the claimant/Respondent No. 1 herein.