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Judgment
S. Abdul Nazeer, J.—Since common questions of fact and law are involved in all these appeals, they are clubbed together, heard and disposed of by this common judgment. The Branch Manager of United India Insurance Company Limited has filed these appeals challenging the common judgment and separate awards in MVC Nos. 9569/2008, 9939/2008, 1091/2009, 1092/2009, 1364/2009 and 1365/2009 dated 29.11.2010 on the file of the Motor Vehicles Accident Claims Tribunal, Bangalore.
The above claim petitions are filed either by the legal representatives of the deceased persons or the injured persons in the accident, which had occurred on 13.10.2008. The claimants have filed the above petitions seeking compensation. The case of the claimants is that the deceased and the injured persons are the passengers in KSRTC Volvo Bus bearing registration No. KA-01 F-7383 (for short ''Volvo bus''). On 13.10.2008 at about 1.35 a.m. the said bus was driven by its driver cautiously and when it came near Mallappanahalli Gate, the driver of another bus belonging to the KSRTC bearing registration No. KA-07 F-1177 (for short ''KSRTC bus'') came from the opposite direction at a high speed and in a rash and negligent manner and dashed against the Volvo bus. Due to the impact, many passengers travelling in both the buses died in the accident and many of them were grievously injured. Therefore, they have filed the above claim petitions seeking compensation.
The Managing Director of the KSRTC has filed statement of objections contending that the accident had occurred solely due to the rash and negligent driving of the Volvo bus belonging to the Corporation, which was going from Bangalore to Chennai.
The appellant/insurer of the Volvo bus has filed the written statement admitting the issue of policy pertaining to Volvo bus. It is contended that the accident was not due to the rash and negligent driving of the Volvo bus. Hence, it is not liable to pay compensation. The Police have filed a complaint against the driver of the KSRTC bus and later, charge sheet was also filed against him.
On the basis of the pleadings of the parties, the Tribunal has framed relevant issues. On appreciation of the oral and documentary evidence on record, the Tribunal has held that the accident was due to the rash and negligent driving of the drivers of both the buses. The Tribunal has apportioned the liability in the ratio of 30:70 between the Volvo bus and the other KSRTC bus. That is why the insurer of the Volvo bus has filed these appeals challenging the finding of the Tribunal in holding that the Volvo bus is also responsible for the accident to an extent of 30%.
I have heard Sri O. Mahesh, leaned Counsel for the appellant/insurer, Sri K. Nagaraja, learned Counsel appearing for the KSRTC and also the learned Advocates appearing for the respondent/claimants.
Sri O. Mahesh, learned Counsel for the appellant/insurer submits that the accident had occurred due to the negligent driving of the KSRTC bus. The Volvo bus was driven on its proper side cautiously. The other bus came from the opposite direction and brushed the right side of the Volvo bus. In fact, the Volvo bus was driven on the extreme left side of the road. After the impact, the left wheel of the Volvo bus was sunk in the sand very close to the edge of the road. The road is 24 ft. wide, which is more than sufficient for the other bus coming from the opposite direction. He has taken me through the complaint, spot mahazar, spot sketch and the evidence of the parties in order to substantiate that it is only on account of the rash and negligent driving of the KSRTC bus the accident had occurred. The Tribunal without appreciating the oral and documentary evidence on record has apportioned the liability in the ratio of 30:70 between the Volvo bus and KSRTC bus. It is argued that since the KSRTC bus has not been insured and is covered by internal insurance, the Corporation has deliberately taken a plea that the driver of the Volvo bus was negligent with a view to avoid payment of compensation.
On the other hand, Sri K. Nagaraja, learned Counsel appearing for the Corporation has sought to justify the finding of the Tribunal in apportioning the liability in the ratio of 30:70. He has also taken me through the evidence of P.W. 5 and P.W. 7, who have stated that both the buses were driven in a rash and negligent manner. It is further contended that since the left side of the road from Bangalore to Chennai was closed for repair, the Volvo bus was permitted to pass through right half of the road. Therefore, the driver of the Volvo bus should have been more careful while driving the bus.
I have carefully considered the arguments of the learned Counsel made at the Bar and perused the materials placed on record.
It is not in dispute that the Volvo bus was insured with the appellant/insurer during the relevant point of time. The KSRTC bus is covered by internal insurance of the KSRTC. There is no dispute as to the occurrence of the accident on 13.10.2008 at 1.35 a.m. It was a midnight. The accident had occurred on NH4 near Mallappanahalli Gate. The entire road is 48 ft. wide. The road is divided by a divider and each side is 24 ft. wide. One side of the road (left side of the road from Bangalore to Chennai) was under repair. Therefore, the vehicles were permitted to ply only from the right side both from Bangalore to Chennai and from Chennai to Bangalore.
One Sri Venkataramu was travelling in the Volvo bus. He was also injured in the accident. He was taken to R.L. Jalappa Hospital, Kolar. At 5.30 a.m. the Police have recorded his statement wherein he has stated that the KSRTC bus was driven by its driver in a rash and negligent manner and dashed against the Volvo bus. On account of the accident, many passengers died and many of them sustained grievous injuries. This statement of Venkataramu was treated as a complaint, on the basis of which FIR at Ex. P1 was registered. After investigation, Police have filed a charge sheet as per Ex. P2 alleging that the driver of the KSRTC bus is responsible for the accident A mahazar was drawn by the Police as per Ex. P3. The spot sketch at Ex. P4 would clearly indicate that the Volvo bus was going from Kolar towards Mulabagilu side and the KSRTC bus was coming towards Kolar from Mulabagilu side. The width of the road is 24 ft. The Volvo bus has stopped at the extreme left of the road. It appears that the KSRTC bus after hitting the right side of Volvo bus has stopped after some distance and it has virtually blocked the entire road. Ex. P5 is the IMV report, which shows that all the damages to the Volvo bus are on the right side. Similarly, damage to the other KSRTC bus is also on its right side. It is also clear that wheels of the Volvo bus had sunk in the mud on the extreme left side of the road. It is thus clear that the Volvo bus was driven on the proper side of the road.
It is to be noticed here that due to the accident, driver of the Volvo bus had died. Sri Anjaneya Prasad, the Conductor-cum-additional driver of the KSRTC bus was examined as R.W. 1. In his evidence, he has clearly stated that he is giving evidence because he was asked to give evidence by the Corporation. He has stated that the driver of the Volvo bus was driving the bus in a rash and negligent manner. Similarly, Subbarayappa, the driver-cum-conductor of the Volvo bus was examined as R.W. 2. He has stated that he did not receive any summons from the Court to give evidence and he is giving evidence at the instance of the Manager of the KSRTC. He has also stated that the accident had occurred on account of the rash and negligent driving of the driver of the Volvo bus. K. Nagaraj was the driver of the KSRTC bus. He is the best witness, who could have stated the cause for the accident strangely, he has not been examined by the Corporation. P.W. 5 and P.W. 7 have stated in their evidence that they are unable to say which driver was at fault. However, they have stated that both the buses were going at a high speed. As stated above, the best person to state the cause for the accident was the driver of the KSRTC bus. He has not been examined. The driver of the Volvo bus has died in the accident. R.W. 1 and R.W. 2 have come to the Court and have given their evidence as per the instructions of the Manager of the KSRTC. As stated earlier, the Volvo bus was insured with the appellant. It appears that the Corporation has deliberately taken a stand that the driver of the Volvo bus, who is no more, was responsible for the accident with a view to avoid payment of compensation because the KSRTC bus was internally insured. P.W. 5 and P.W. 7 were not in a position to say as to who was at fault. The documentary evidence coupled with the complaint, FIR, the charge sheet and the spot sketch would clearly indicate that the driver of the KSRTC bus alone is responsible for the accident. When both the buses were permitted to ply on one side of the road, the drivers of both the buses have to take care while driving their respective buses. In the instant case, the driver of the KSRTC bus was rash and negligent and has caused the accident. I am of the view that the Tribunal is not right in apportioning the liability in the ratio of 30:70 between the Volvo bus and the KSRTC bus. I hold that the appellant-Insurance Company is not liable to pay any portion of the compensation determined by the Tribunal and that the KSRTC is liable to pay the entire compensation. In the result, the appeals succeed and they are accordingly allowed. The judgment and award of the Tribunal directing the appellant-Insurance Company to pay 30% of the compensation amount is hereby set aside. The respondent-Corporation is directed to deposit the entire compensation determined by the Tribunal within a period of six weeks from the date of receipt of a coy of this order. The amount deposited by the appellant/insurer in all these appeals shall be returned to the appellant/insurer. No costs.