The Chairman vs Shrikant Subhash Tangadi

K.N. Phaneendra, J.—The appellant who is aggrieved respondent No. 2 before the trial Court in M.V.C. No. 1601/2003 preferred this appeal challenging the judgment and award passed by the Additional M.A.C.T., Belgaum in the said motor vehicle case and fastening the liability on the appellant to the extent of 75% to be payable by him and also exonerating the liability of the respondent No. 3-Insurance Company.

I have heard the arguments of learned counsel for the appellant-Sri S.S. Bawakhan and the counsel for the respondent No. 3. For the purpose of convenience I would like to keep rankings of the parties as per their ranks before the trial Court. The claimant Sri Shrikar Subhash Tangadi filed a claim petition against the respondents on the allegation that he sustained injuries in a motor vehicle accident. It is the case of the claimants before the trial Court that on 26.06.1999 he was travelling in a tempo bearing its reg. No. KA-23/5741 for which the appellant is the owner, in order to go to Kannur from Nippani. According to the claimant the driver of the said tempo drew the vehicle in a rash and negligent manner while overtaking the motorcycle he dashed against the another vehicle which was coming from the opposite direction a truck bearing No. MH-04/H-4760 and due to the impact of the accident he suffered certain injuries. Owners of both the vehicles were made as respondents in the said case. First respondent is the owner of the truck bearing No. MH-04-4760 and second respondent-appellant herein is the owner of the tempo bearing reg. No. KA-23-5741. It is an undisputed fact that both the vehicles were covered by insurance and the third respondent is the insurer of both the vehicles. The contention of the learned counsel for the appellant is that the trial Court has committed serious error in fastening the responsibility on the owner, i.e., the appellant and exonerating the liability of the Insurance Company. Secondly, he contends before this Court that the apportionment and negligence between the two vehicles is also not proper and the same is not based on evidence on record. The trial Court has committed serious error in apportioning 75% negligence on the part of the driver of the vehicle bearing No. KA-23-5741 and only 25% on the driver of the another vehicle MH-04/H-4760. It ought to have apportioned negligence to the extent of 50% each. Therefore, on these two counts the learned counsel for the appellant is before this Court.

On perusal of the records and also the observation of the trial Court the factual matrix as placed before the Court shows that one Anand Ishwar Patil has filed a complaint explaining as to how the incident happened as per Ex. P. 1. He gave details in the complaint regarding the manner in which the accident has occurred. According to the contents of Ex. P.1 the said goods tempo bearing reg. No. KA-23/5741 was moving from the direction of Nippani to Sadalaga. The first informant was also sitting in the said tempo and he has categorically stated that the driver of the tempo was driving the vehicle in a rash and negligent manner. While driving so, in overtaking of motorcycle moving in front of the tempo, the driver of the tempo drove the vehicle to the right side of the road and dashed against the vehicle which was coming from the opposite direction, i.e., MH-04-H-4760, a truck. According to him three persons including the driver of the tempo died in that accident and he and some other persons have sustained grievous injuries. The said person was also examined before the Court and in fact he reiterated the contents of Ex. P.1 and categorically stated that the driver of the tempo has in fact overtook the motorcycle and while doing so he dashed against the vehicle which was coming from the opposite side.

Looking to the above said facts and circumstances, nobody has spoken about the negligence on the part of the vehicle (truck) which was coming from the opposite side as to how the driver of the said vehicle drove the vehicle, what was his contribution to the accident, etc. because of the reason that both the vehicles were plying on the same road. Perhaps the driver of the vehicle bearing No. MH-04-H-4760 if he would have taken care, would have avoided the accident by applying the doctrine of last opportunity, that some negligence is also there on the part of the driver of the said vehicle. Therefore, looking to the facts and circumstances of the case it is crystal clear the entire negligence is fastened on the driver of vehicle No. KA-23/5741 at the initial stage while lodging the complaint and in fact charge sheet is also laid against the said driver, but considering the evidence which is on record the trial Court has come to the conclusion that 25% of the negligence has to be fastened on the vehicle of the other side. In fact, the owner of the truck (respondent No. 1) has not challenged the trial Court judgment in fastening the negligence to an extent of 25% on the driver of the vehicle MH-04/H-4760. Looking to the above said facts and circumstances of the case I do not find any strong reasons to deviate myself from the observations and the judgment rendered by the trial Court with regard to apportionment of the negligence to the respective drivers of the vehicle.

The next question raised by Mr. Bawakhan is also not tenable before this Court. Though the respondent No. 3-Insurance Company has admitted that both the vehicles were insured but it never admitted its liability. So far as the appellant is concerned, it is the specific case of the Insurance Company that the claimant was an unauthorized passenger in the goods vehicle without there being any goods with him in the said vehicle. Moreover the nature of the vehicle is also to be taken into consideration it is a goods vehicle in which the milk was being transported. It is not the case of the claimant that he was the owner of the milk which was being transported in the said vehicle. The trial Court has also categorically on the basis of the claim, has come to the conclusion that the claimant was travelling in the said vehicle as an unauthorized passenger. He was not carrying any goods along with him. The petitioner has not claimed even in the claim petition that he was transporting any goods in the said vehicle. Therefore, holding that he was an unauthorized passenger and carrying on unauthorized person violates the terms of the policy, the liability was fastened on the owner of the vehicle, I do not find any strong reasons to interfere with such an observation made by the trial Court based on the pleadings and evidence led by the parties. Therefore, on these counts the appellant cannot succeed. Therefore, the appeal is devoid of merits and the same is liable to be dismissed. Accordingly, it is dismissed.

The amount in deposit before this Court is ordered to be transmitted to the trial Court for disbursement in accordance with law.