IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE mm pm? OP' NOVEMBER, 2o10: Q
BEFORE:
THE HONBLE MR. ..}"{}STICE s.N.sA1YANgg1_2A¥A3~1A~
M.F.A.No.6849 or 2906 s , *
CM
M.F.A.No.6906[2006,[M_1fl
M.F.A.No.6904f20()6 (MV-3.
M.F.A 6849[ 2006:
BETWEEN:
Sri.N'arasimha, Mufthy N
8/0 late Poojappsa ' ._
Aged about .':'-O' '
Residing at C'h0wt13.ha]Ei.Vi1}f3ge,=--
Kundama__£_10biia,"" V1. __ V V' "
DevaI:ahal1i"'I'aJ§;Lk, M
Bangalore I)_£'3t1f1(:i'.. ~.._» » _ ' - ..APPELLANT
{BY sR1.N.GQupALAKRis'H='NiA; ADVDCATE)
' Sri.3ys<é§1.'1.'yi11r1us
Ls/so syed%<3a:¥a:L sab,
Vegé:t_ab1é'
Mar%,1tl'1i E<3_xie:1§3i0n,
,. § Ma11ir-Town -&"Ta1ux,
. _ _' V Efiolar Distr;fct..
A '~ M'/s.ChoIamandalam M.S.
"W\
Genera} Insurance Co.Ltd.,
9/ 1, Ulsoor Road,
Uisoor, Sivan Chetty Garden,
Bangalore ~ 560 042
Represented by its Manager. ..RESPONDENfF€;. f A'
(BY sRI.0.MAH1:sH, ADVOCATE FOR 1:21«:sP01\I'Ij"i;N'1~i[.Aj1*«'o.2,T'
RESPONDENT No.1 SERVED BUT UN_R,EI?RESENTf3D_} V'
THIS MFA FILED UNDER “»AsEcT:<:)1\{e»._'1'7§§'(1j" ii"01f<.j
M.V.ACT AGAINST THE J'UIe)Gl\/IENT AND AWAI.<';D 1;~A'1"'£',Dw
16.12.2005 PASSED IN MVC N'o.€»_444/2004V0N_ T1E{E…FILE
OF THE IV ADDL. JUDGE, MEMBER 'MACT,
METROPOLITAN AREA, BANGAL()-RE, {SCCH.–{5], PAR"['LY
ALLOWING THE CLAIM 1?ET1T:0NA _jFOR_ COMPENSATION
AND SEEKING i«'UR'rf;*:1E£-2 A .E3N.Ei'ANCEMENT OF
COMPENSATION.
MFA 110.6906/2os)6:.__
BETWEEN :
Sn’.R.Kr1’$hn.apf)a_ ‘ ”
S/0 iate RaII13i'<i'l'1' , e .4
Aged about 32 yea:'s;"-.AA " V ~-
Residing at C2′:0wdaha11i._Vi11age;”
Kur1ciamaH(‘3h_Ii; , ” _ V
Devanaha1liTai-uk,
_ Bangalpre 1:>iss;:-1c”t.~ ..APPELLANT
(By s;§I.N:’L§QéA£,AKR1s;-INA, ADVOCATE}
I .S1:i.Syed..__’Yu nfzus
_ ‘ S_/0 Syed Gafffar Sab,
” ‘A » — Vegetable Merchant,
‘ Maufuthié Extension,
Malur Town & Taiuk,
Koiar District.
2.M/s.ChOla_mandaIam M.S.
General Insurance CO.Ltd.,
9/ 1, Ulsoor Road,
Ulsoor, Sivan Chetty Garden,
Bangalore — 560 042 j ” ”
Representeci by its Manager. .§RESPON’I_)£*3§N'{‘S_ _ A’
(BY sI21.O.MAHEsH, ADVOCATE FOR’».PRESPONm:1\:’r I\i’O’.*2,”*
RESP()NDEN’.1’No.1 SERVED BI’IT«~IfNREPRE3SEN1′{§D}…, . *
THIS MFA IS FILED UNDER”S.ECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT’ – AND–._AWARD “DATED
16.12.2005 PASSED IN ‘am/’jc: NO.€i514-5;’23004.»»()N THE FILE
OF THE IV ADDL. J[JD<}E.,? __M-F11'-.([vBER, MACT,
METROPOLITAN AREA, B,ANOAL()m3,' "'{sC<:H~6), PARTLY
ALLOWING THE ;;j:LA_1M PE'1'1TION'~..'F()R 1':OMPENsAT1.ON
AND SEEKING mRi1*HER ENHANCEMENT OF
C()MPENSATI{)1'I;
M.F.A 690 A”g2c.Vi:_(‘:_~§; ‘:2; ”
BEYWEEN; ‘V
Sri.Ar1}a.nappa=, ‘ ._ ~’
S / 0 late: ‘ Chikkaf1il1_fliSha,IIE€ipp3
, Aged 3u~EI.:QL1t.32 years’, A _____ .. v
. F<esidi11g at-; 'C1"iOwdaha1li Viilage,
Heblié,
{3eVa.nah:11Ii'– «.'_Falufi:,V
Ban-gaiore Disigricfi. ..APPELLANT
V -(BY sn5"I.n;.GOPA1A1:R1sz-INA, ADVOCATE)
AND:
1. .Sri .Syed Yunnus
S / 0 Syed Gaffar Sab,
Vegetable Merchant,
Maruthi. Extension,
Malur Town & Taiuk,
Kola: District.
2.M/S.Ch0lamanda1arn M.S.
General In.Sura.n.ce C0.Lt(i.,
9/1, Uisoor Road, –
UIS001′, Sivan Chetty Garde
Bangaiore — 560 042
Represenuzd by its Managexj.
7
5;_;R1ES1éoN13E§\1TS”
(BY SR1.o.1~AA1e1I«:S1~1, ADVCCA1′:«;,%’Q12 :’R1ajS1§0NDENT No.2,
% RESPONDENT N0. 1SERVED”BU’1*.U1qREPmS«ENTEI>)
TI–IIS Mm 5f:-E,JUDG-MVI$N’r_ AND AWARD DATED
16.12.2005 pA.SSEi::1′ IN Mvtz No_.6z14i5/2004 ON THE FILE
OF’ ‘I’HE””‘ MEMBER MACT,
ME’l’ROF1OLI_’£’AN=.”A.REA, ‘«.BfxN_(}AL.ORE (SCCH–6}, PARTLY
ALLOWING THE_C£;A{M.1_PEf1’ITION FOR COMPENSATEON
AND SEEKING “«FUR”1–‘.1_{1:ER ENHANCEMENT 014’
COMPENSA’I}~Q1\1’v. -_ A
Vv1.MISC£i3LLANEO[IS FIRST APPEALS COMING
O,’N,F~-SR .1#1N.A1. HEARING TRIS BAY, THE COURT
‘=I)ELIVERE_1)” T1vz,1_5;R0LL0w11eG:
W1
J U DGMENT
The claimants in MVC 6444/2004, 64454/’2.t)oé1;i,tA’
6446/2004 are impugning common Judgment _a;i1d *
dated 1612.200-5 on the file of Motor__ AccieIetits’;v.Ciai’ms
‘l’ribur1aI, Bangalore wherein while 7-I’
for compensation. the couit ‘~..t)eiow~.. has iiiapijmftioried
contributory negligence to the claiiiia,i1tsV_at 3O%.i_a”.r1c1 saddled
the liability on the owner iIi._sui’e.t ‘Gif’good_s auto involved
in the accident at 70°/0. ‘V
2. ‘I’};;e’ these appeals are as
urider:– ….
on –.16.{)5′;i5′{g’f):{l .iat«ja’nsz)aoi~t 7.30 RM. all the three
claimants weyelltravelliiig motorcycle which met with an
aecidefitiv against goodsévearrying auto bearing No.KA–08»
theéésaid accident, the claimants suffered injuries
V _co1n;iex1sa._tion;”
for filed aforesaid claim petitioas seeking
‘W1
person sits in a place meant for only two it would definitely
cause difficulty for the rider and discomfort to pillion rider:s”;»i
6. Considering the fact that the accident 4′
place on a village road. which is narrow and 8 feet_vvinfw~idth l’
with 4 feet mud road on its
accident being twilight hour, the
exposing themselves to accident
such knowledge, all the (ria,i.rriants”‘iia3k:e’ Vt.’rav’e:led on
the said motorcycle wiiichllhas It is
also seen that due to collision
of the said autorickshaw.
The mahazar available on record
does notiisay. xvaseiifficient street light available in
the place oi’ig,;(:cidei2t:’Vr.’. “tIn;:ler that circumstances greater
care ircautioln required to be used by both the
rr,ioto_rcycl’e:sririer..and driver of the autorickshaw, when both
aiie passiiig’ each other in a narrow road at such
it _ hour;””–«Incid’emf:’al1y there is no sketch prepared and produced
hy..the police in the said proceedings. Therefore the way in
\«1«”‘
10
which the accident has taken place will have to be
understood by the pleadings and also police documents.
available on record. The police documents FIR,
does not clearly establish that the driver of the 1
has come to the extreme right sidefof the road’
caused accident to the motorcycle on”v__vh’ich the’V_’claj.m’a.n.’:s”‘v
were travelling.
7. Per contra, fr.ev;3o_I’t which is
produced and Ҥi.svvno1l:lsible marks of
collision on tol.:dueirnoVnstrlrégteVV_there was collision
between said sautorickshaw. Under
the circiiri1star1cesll’t:«l<;j:r:1gConsideration all these aspects
the court. below lhasl"ri_g.ht.ly the contributory negligence
_ on the aatorickshawflat 7():% and on the claimants at 30%.
V appearing for the claimants would
subr1ait”llthat”‘xeeveii assuming that there is contributory
_ ‘4 ‘negligenoevlon the part of the drivers of both the vehicles, the
cannot be extended to the pillion rider. This court is
“W1
11
not willing to accept this line of argument for the reason that
admittedly the capacity of the motorcycle to carry passenger
is two personsw one rider and one pillion rider, if “~ 3
wouid sit thereby it would canse inconvenience ‘iiot only to’ l
the driver, but also to pillion. Tne 1en”at;z:r< :¥i_seornfoiftl«ee.:z:;sed
to them is bound to refiect in the ride,:'–_nl€;re
road is as narrow as 16 feet "of. feet
is meant for the use of citcnnistences a
small Iniscalculation eithief the driver of the
motorcycle or__ definitely result in
accident.
‘Ft:erefore:’-.fi1e'”contention of the petitioner that
imposing cont1’i_b1n,oI:y’V.lyneéfigence on the part of the pillion
wrong}, ’tisinotéiaecepted. If only one of the piliion
hndciestrained himself from boarding the motorcycie
:’tI’1ei.1_it been convenient to the rider to ride the
motorcycle all care and caution so as to prevent any
W H ” a:ecitienVt”either by himself or to third party.
‘W1
12
10. Title counse} for the claimants in support of his
case would rely upon the following judgments: fiI’St of is
judgment rendered by Gwalior Bench of Madhya
High Court in the matter of l._In.ion of India VS ‘
another reported in 1997 ACJ 439,; whereinwith’i~s.’:vhelti’_’_as
unciertm I it A V ‘V l V
“it is true that it has czome 1nv.evic1enc_e that..three
boys were sitting onthe”rnoped; butathatliloy itself
does not disentitie they ciaim foiatihe death of
Veeru, which” was eiai1s’ed’ir1″”the acciti’er1’t by the
truck. It is Vnote-wo;xr1;hywthatrthei boys were going
on a smali moped ‘t0,i;h;€ te13f)v’p.i.é2″in the town of
Shivpuri, wl’1ich_’is a._bnsy”‘tow'”n_.*– Rush is also
thereon. the main road’.g_ Byta mere fall on a
cul€«}ert};or on: the”gro£;n1_d’,”d’eath could not take
place_, KI.-t5;7wa.s:_ finite exrirdent» from the facts and
circzixnstaritresijf the case that the aforesaid
——– aging driven’ at a high speed with
Iiegligentée, otherxxrise this accident could not
–.i1ave”‘take12eg pviace.’ In a market place, heavy
vel1icle”is” ~to”be’c14r.iven with great caution. It is
establishetilprinciple of law that heavier the
Vo.liicle, greater the responsibility. In this
eonte>gtTribunai was fully justified in recording
a findingbased on evidence that the accident
V laazl taken place by the truck which was being
“‘(_i£’.1A\ft3I’.l rashiy and negligently killing Veeru on
. .Vtiie’sp’ot. Therefore. the findings of the Tribunal
‘ for} this point are confirmed”.
“”1/”Lat
13
The facts and circumstances of this case are different
from the fact and cireumstahees of the aforesaid case. Iiihtifie
afore cited. case, the grant of compensation itself
challenged on the ground three persons
moped. In the instant case it is not the case..of the e1_ai-ma.i’1ts
that the right to seek eompensatiori’.is:”t1enieci§_g Here ”
compensation is awarded fort
awarding c()n1pei1sation,the co1}r’t”iia_s thevlviahility
of the driver of autorickshayv’ fastened
sum amount of ioii the part of the
eiaimants.
(ii). H _ seeond judgment it is the
judgmenttoftthet of Gujarat High Court in the
ease of Vs Suclhaben Sukethu Sutaria
»reporteci””‘i:i 1980 AC.) 178. The facts of the
“afo’reis’aisd’.this one are one and the same. Therefore
the Apfesez1_t. is also distinguished in the similar way as
‘ the earlier ‘ease was distinguished.
W:
14
(iii) Coming to the third judgment is that of the Apex
Court in the matter of T.O.Anthony Vs Karvarnan
another reported in (2()()8)3 sec 748 wherein :.t«iae’.y’Vi’X;§’§5i,.:”‘
Court has distinguished between the coinpositeiiiegligttncex
and contributory negligence in the process’ has 1i’edu:ccdw_
contributory negligence fastened on 50°’/do V
to 25%. In the instant case the iiegligence Between
of the motorcycle and that,of is the
contributory negligence on the part
of the pillioii ificiet vv’th:t: motorcycle in
travelling tyiiich is meaxit for two
persons eachhne of the rider and as
well as i’..pill.ionl.VV responsible and have
co’ntributed “to the negli_ge’nce in causing the accident which
_ has tajiiierii. place whevtweera the said motorcycle and the
7–I%lowever the ratio laid down by the Apex
nohearing to the case on hand. infact in the
said fi*i.atte’i’,. contributory negligence that is recorded by the
.’4″*..cotiI’tbelow: is not set aside it is only reduced marginally by
3-vnkwl
15
the Apex Court while distinguishing between the
contributory negligence and the composite negligejhee.
Therefore the ratio laid down by the Apex
appiy to the facts on hand.
(iv) Coming to the next judgment relied L.ipAo’r1- by”
appellant which has been renderedby the of
this Court in the matter of Basavaiali “Vs..N.S.lAs’nok”v<Kuniar
reported in 1985 ACJ xjiriiereiiiii' has held as
ElI1d€I'I-
“‘lf’h’e”leame.d”coi;nsel ‘apprzaiihg for the claimant
subrt_1ii_.ted “tha_t”thep_:11ateria.E on record is enough
_ …. ..ctoV”estat3lish that_ it w-as..the car bearing No.}\/IEB
V 73£»3;ywhi’ch catazsed the accident and that it was
–.d’river1il:3yA respondent No.2 in the petition. For
A. that he”.tjeiie’d._pu’pe’n exhibit P~2. Exhibit P~2
*contain’s_ all proceedings in C.C.No.357 of
__ 1981 before the Metropoiitan Magistrate, II
V Court:-,.._VBahgalore City. The second respondent
namely “i’v’I’u.qbooi was charge–sheeted in that
A , case for having caused the accident on
. “1.8v.Q8.~.l980 at about 9.30 a.m. The court
Wexpllained the charge to the accused and while
‘doirig so, it stated thus:
“name and address of the accused person sent
up for trial:
W
16
Muqbool S.A., s/o Kasim Sab, aged 29 years,
R/at 38/2, 13″‘ Cross, Paciarayanapli-Ara,
Bangalore, Driver of car MEB 732″: and when
the charge was put to the accused, it is-‘
him thus:
“That on 18.08.1980 at 9.30 a.Hm4.’~».at=a’bout
that time along Vth Cross, Vth Road,
Mohammadan Block : in “the, ‘1 of
Malleswaram Police Station ;the”‘acc~u.se_d, jnetedj”.
in Col.No.4, drove the car No.MEB 732; from ee.;st7
to west in a rash ai.id’i-negligent inan’r,_1er’-.s’o~’to
endanger human life “and dashed .?against a
pedestrian CW II who”‘was.._ going in_ the same
direction on the left;-:;i’t’1e of thee, road, as ‘a result
of which CW –IIffel1;down and sustained simple
injuries on his p’erso.n’.X }_?liI’fll£3I”‘__th€ accused
failed to give _rne_ci-ical. aid’ to fjhe injured and
failed tolreport the i;=1atte:r’tojthezpolice about the
accigIentj..t.i’ ‘r:.ir:he: the _ac.cused”‘fajled to produce
tli_ie’it1sur.a.iice c.ertifi_cate”‘;[ ‘
V …. V”T_h’e”1~acc1ised.._r1amely,*’Muqbool. respondent
‘ No.’2iin the c§.ai’.m_ petition, pleaded guilty to the
chargera:;nd” ‘own plea of guilty he was
‘-.convicted” and”–sjente’nced. That being so, it is
c«1earthia_t lthejczar bearing No.l\/{EB 732 was
_ driven by.’-respondent No.2 in the petition in a
V rash “and negligent manner, resulting in the
_accident causmg injuries to the claimant.
j substance of the finding of the Division
V V’ Beneh”~of this Court that is when once there is acceptance of
” t. the driver of the vehicle in. any criminal
‘ML/’rt
17
proceedings i.e., conclusive proof of rash and negiigence on
his part and based on that. the court shouid fix iiabiiitgwon
the driver. No doubt that principle is followed in ”
case on hand. Arilmittedly in this case alsomthey of
autoriekshaw in a criminal proceedings initiated agaivrisévhiih
has accepted that there is negligencevonlhis it
the accident. which is accepted;’-vi.e:.V:”0n the
court below fastened the liabi’lity. «'(lriver”V:of the
autorickshaw to pay consoriance
with the decisiyont of of this court.
However whiie” ‘icoxiértivbelowll has gone a step
further coinmitted by the claimants in
traveiiinigytogethelron which is involved in the
accident in excess of its seating capacity and thereby being a
cause. the aceident. The court below while accepting the
liability of :t.}i£§’A.&!it0I’lCkShaW driver has also fastened certain
ainoiinti oi’:’ii~eg_iiVge;nce on the part of the claimants herein in
it _ violating t’he’n?iotor vehicle rules which restricted the use of
iiiotorcyelcat. by more than. two persons. ‘ Therefore the
E…_»i,,»?
19
In that View of the matter, the court below has rightly taken
that there is contributory negligence on the part ofjjthe
claimants. This court in the light of the
discussion, finds that there is no illegaiity or 1:13
the judgment which calls for inteI’fei’e’r;1eebi1*r’ this first.:_Ea;p;V}e:3;l§VVV _
Hence the appeals fiiedsby ‘the Veiaivmehvts. are
dismissed without any order as to (fest.
SBN