Managing Director, KSRTC vs Ramakrishna J.S.

B. Manohar, J.—The Managing Director, KSRTC has filed this appeal challenging the legality and correctness of the judgment and award dated 18-2-2011 made in MVC No.1197/2010 passed by the Motor Accident Claims Tribunal, Bangalore (hereinafter referred to as the Tribunal for short) fastening liability on them to compensate the claimant to an extent of ?rd of the compensation amount awarded by the Tribunal.

The first respondent herein had filed a claim petition contending that he was working as a cleaner in the Canter lorry bearing Registration No. KA-53/8633. On 20-12-2009, after loading the goods at Bangalore while proceeding towards Mangalore, near Jogipura, Bangalore-Mangalore Road, Chennarayapatna Taluk, the driver of the Canter lorry drove the vehicle in a rash and negligent manner and dashed against the stationed lorry bearing Registration No. KA-04/B-4855 which had collapsed on the road in view of the accident between the said lorry and a KSRTC bus bearing Registration No. KA-06/F-0498. In the claim petition, it was contended that in view of the said accident, the claimant has sustained injuries all over the body. Immediately after the accident, he was shifted to Government Hospital at Hassan and thereafter he had taken treatment in Abhaya Hospital at Bangalore. In the accident he had sustained three fractures in addition to cut and lacerated wounds all over the body. He was inpatient from 20-12-2009 to 30-12-2009, he has spent huge money for his treatment. Due to the rash and negligent driving of the canter lorry which dashed against the stationed lorry, the accident had occurred. Hence, the insurer as well as the owner of the canter lorry are liable to compensate the claimant and sought for compensation of Rs.20,00,000/-.

In response to the notice issued by the Tribunal, the insurer of the canter lorry i.e. the National Insurance Company filed written statement denying the entire averments made in the claim petition and also contended that the lorry was parked on the National Highway without indicators. In the night time, stationed vehicle could not be seen, hence, the canter lorry dashed against the said lorry, Due to the negligent act of the driver, parking the lorry on the national highway without indicators, the accident had occurred. Hence, the insurance company is not liable to compensate the claimant.

Whereas, the Oriental Insurance Company filed the written statement contending that due to the rash and negligent driving of the canter lorry, the accident had occurred. In view of the accident between the lorry as well as the KSRTC bus, the lorry was collapsed on the road side, the driver of the canter lorry without noticing the road situation, drove the vehicle in a rash and negligent manner and dashed against the stationed lorry. Hence, the Oriental Insurance Company is not liable to compensate the claimant.

The KSRTC filed written statement contending that while the bus was proceeding from Mangalore to Bangalore near Jogipura on Bangalore-Mangalore Road, due to the rash and negligent driving of he lorry bearing Registration No.KA-04/B-4855, it dashed against the KSRTC bus and collapsed on the road. However, the driver of the canter lorry without noticing the said lorry dashed against the stationed lorry from hind side. In view of that, the cleaner working in the canter lorry sustained injuries and the KSRTC bus has not been involved in the accident. Hence sought for dismissal of the claim petition as against KSRTC.

On the basis of pleadings of the parties, the Tribunal framed necessary issues.

The claimant in order to prove his case got examined himself as P.W.1, and also examined the doctor who treated him as P.W.2 and got marked the documents as Ex.P1 to Ex.P13. On behalf of the KSRTC, the driver of the KSRTC bus was examined as R.W.1 and one of the officials of the Oriental insurance company was examined as R.W.2. However, no document has been marked.

The Tribunal, after appreciating the oral and documentary evidence let in by the parties and taking into consideration IMV report, spot mahazar, copy of he complaint, wound mark on the road, held that all the three vehicles have contributed for the accident. The Police have registered a case against the drivers of all the three vehicles. When there is an accident on the national highway, the duty casts upon the driver or cleaner or conductor to give indication to other moving vehicles. In the instant case, the driver or conductor or cleaner have not taken any steps to give indication to the on coming vehicles. Further, the driver of he canter lorry has also not taken sufficient care while moving on the national highway, due to his negligence, the accident had occurred. Hence the drivers of all the three vehicles have contributed for the accident and ?rd liability was fastened on the KSRTC, Oriental Insurance company insofar as lorry in concerned and National Insurance Company insofar as canter lorry is concerned.

Taking into consideration the injuries sustained and suffering undergone, the Tribunal awarded a sum of Rs.2,35,400/- with interest at the rate of 6% p.a. The liability was fastened on all the three vehicles. The KSRTC being aggrieved by the said judgment and award fastening liability on them to compensate the claimant to an extent of ?rd of the compensation amount has filed this appeal mainly contending that the KSRTC bus was not involved in the accident, whereas the claimant was working as a cleaner in the canter lorry which dashed against the stationed lorry. The liability fastened on the KSRTC is contrary to law.

On the other hand, Sri. E. R. Diwakar, learned counsel appearing for the Oriental insurance company and Sri. K. Sridhar, learned counsel appearing for the National insurance company argued in support of the judgment and award passed by the Tribunal.

The records clearly discloses that the lorry bearing Registration No. KA-04/B-4855 and Canter lorry bearing Registration No. KA-53/8633 were proceeding from Bangalore to Mangalore. However, the KSRTC bus was proceeding from Mangalore to Bangalore. The KSRTC bus and lorry colluded each other at Jogipura on B.M. Road at about 1.45 p.m. At that time, the conductor of the KSRTC bus was taking care of the passengers of the bus, 15 minutes thereafter, the canter lorry bearing Registration No. KA-53/8633 came from Bangalore side without noticing the accident occurred between the KSRTC bus and the lorry, drove the canter in a rash and negligent manner and dashed against the stationed lorry from hind side. Due to that the cleaner in the canter lorry fell down and sustained injuries. Hence, he filed the claim petition. In the said accident, the KSRTC bus was not involved and the accident is between the canter lorry and the stationed lorry. In those circumstances, the liability fastened on the KSRTC is contrary to law. The Oriental insurance company as well as the National insurance company have not challenged the judgment and award passed by the Tribunal fastening liability on them to compensate the claimant to an extent of ?rd each and also the quantum of compensation. Since the KSRTC bus was not involved in the accident the question of fastening the liability on them does not arise. The KSRTC bus driver was examined as R.W.1 and he had explained the occurrence of accident. The evidence of R.W.1 and also P.W.1 corroborates that due to the rash and negligent driving of the canter lorry which dashed against the stationed lorry, the accident had occurred and the claimant in the canter lorry sustained injuries. An officer of the Oriental insurance company who was examined as R.W.2 is not the eye-witness to the accident, hence his evidence cannot be believed. considering the totality of the matter, the judgment and award passed by the Tribunal fastening the liability on the KSRTC has to be set aside and the KSRTC has to be exonerated from its liability. In view of the above, the liability is fastened on the Oriental insurance company and National insurance company to an extent of 50% each.

Accordingly, I pass the following:

ORDER

The appeal is allowed. The judgment and award dated 18-2-2011 made in MVC No.1197/2010 passed by the Motor Accident Claims Tribunal, Bangalore is modified. The KSRTC is exonerated from its liability. The Oriental insurance company and National insurance company are liable to compensate the claimant to an extent of 50% each.

The amount in deposit before this Court is directed to be refunded to the appellant-KSRTC.