® IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE28H DAY OF SEPTEMBER, 2016 BEFORE THE HON’BLE MRS.JUSTICE S.SUJATHA M.F.A.No.6222/2012 c/w M.F.A.Nos.6225/2012 & 6226/2012 [MV]. IN M.F.A.No.6222/2012: BETWEEN : KARNATAKA STATE ROAD TRANSPORT CORPORATION OWNER/INTERNAL INSURANCE FUND SHANTHINAGAR, K.H.ROAD BANGALORE BY ITS DIVISIONAL CONTROLLER REP. BY ITS CHIEF LAW OFFICER ...APPELLANT (BY SRI H.R.RENUKA, ADV.) AND : BELLAPPA S/O PUTTAMADAPPA AGED ABOUT51YEARS R/O MELAJIPURA VILLAGE BADANAGUPPE POST KASABA HOBLI CHAMARAJANAGARA TALUK-571313. …RESPONDENT (BY SRI M.Y.SREENIVASAN, ADV.) THIS M.F.A. IS FILED UNDER SECTION1731) OF M.V.ACT AGAINST THE JUDGMENT
AND AWARD DATED1403.2012 PASSED IN MVC NO.106/2011 ON THE FILE OF THE DISTRICT JUDGE, MEMBER, MACT, CHAMARAJANAGAR, - 2 - AWARDING A COMPENSATION OF RS.3,20,800/- WITH INTEREST @ 6% P.A. PENDETE-LITE AND FUTURE INTEREST TILL REALIZATION. IN M.F.A.No.6225/2012: BETWEEN : KARNATAKA STATE ROAD TRANSPORT CORPORATION OWNER/INTERNAL INSURANCE FUND SHANTHINAGAR, K.H.ROAD BANGALORE BY ITS DIVISIONAL CONTROLLER REP. BY ITS CHIEF LAW OFFICER ...APPELLANT (BY SRI H.R.RENUKA, ADV.) AND : BELLAPPA S/O PUTTAMADAPPA AGED ABOUT51YEARS R/O MELAJIPURA VILLAGE BADANAGUPPE POST KASABA HOBLI CHAMARAJANAGARA TALUK. …RESPONDENT (BY SRI M.Y.SREENIVASAN, ADV.) THIS M.F.A. IS FILED UNDER SECTION1731) OF M.V.ACT AGAINST THE JUDGMENT
AND AWARD DATED1403.2012 PASSED IN MVC NO.107/2011 ON THE FILE OF THE DISTRICT & SESSIONS JUDGE, MEMBER, MACT, CHAMARAJANAGAR, AWARDING A COMPENSATION OF RS.13,444/- WITH INTEREST @ 6% P.A. PENDETE-LITE AND FUTURE INTEREST TILL REALIZATION.-. 3 - IN M.F.A.No.6226/2012: BETWEEN : KARNATAKA STATE ROAD TRANSPORT CORPORATION OWNER/INTERNAL INSURANCE FUND SHANTHINAGAR, K.H.ROAD BANGALORE BY ITS DIVISIONAL CONTROLLER REP. BY ITS CHIEF LAW OFFICER ...APPELLANT (BY SRI H.R.RENUKA, ADV.) AND : BELLAPPA S/O PUTTAMADAPPA AGED ABOUT51YEARS R/O MELAJIPURA VILLAGE BADANAGUPPE POST KASABA HOBLI CHAMARAJANAGARA TALUK. …RESPONDENT (BY SRI M.Y.SREENIVASAN, ADV.) THIS M.F.A. IS FILED UNDER SECTION1731) OF M.V.ACT AGAINST THE JUDGMENT
AND AWARD DATED1403.2012 PASSED IN MVC NO.108/2011 ON THE FILE OF THE DISTRICT & SESSIONS JUDGE, MEMBER, MACT, CHAMARAJANAGAR, AWARDING A COMPENSATION OF RS.4,02,910/- WITH INTEREST @ 6% P.A. PENDETE-LITE AND FUTURE INTEREST TILL REALIZATION. THESE APPEALS HAVING BEEN HEARD AND RESERVED FOR JUDGMENT
ON2209.2016, COMING ON FOR PRONOUNCEMENT OF JUDGMENT
, THIS DAY, THE COURT DELIVERED THE FOLLOWING: - 4 -
Since these matters arise out of same accident and against common Judgment, the same are heard together and disposed of by this common Judgment.
2. These matters arise against the Judgment and award passed by the Motor Accident Claims Tribunal, Chamarajanagar, (‘Tribunal’ for short) in MVC106 107 and 108 of 2011.
3. Facts in brief are that the injured/claimant filed a petition before the Tribunal contending that on 01.05.2011, while he was riding his motorcycle bearing registration No.KA-02/Q-1807 along with his wife deceased Jayamma and son deceased Mahadevamurthy met with road traffic accident owing to the actionable negligence of the driver of KSRTC bus bearing registration No.KA-09/F-3989, as a result of which the claimant sustained injuries and his wife and son - 5 - succumbed to the fatal injuries. The Corporation- appellant contested the matter. The Tribunal after appreciating the evidence on record awarded compensation as under: MVC No.106/2011 – Rs.3,20,800/- MVC No.107/2011 – Rs.13,444/- MVC No.108/2011– Rs.4,02,910/- Interest at the rate of 6% p.a. was awarded on the compensation amount. Being aggrieved, the corporation is in appeal challenging the liability.
4. Smt. H.R.Renuka, learned counsel appearing for the appellant assailing the impugned Judgment and award, interalia contends that the motorcycle involved in the accident was driven by a minor boy, who had no driving licence to drive the vehicle; It is an admitted fact that three persons were travelling in the bike at the time of the accident, two pillion riders travelling on the bike - 6 - is in violation of Motor Vehicles Act, 1988 (‘the Act’ for short) and the Central Motor Vehicle Rules (‘CMV Rules’ for short). Placing reliance on Ex.R1, medico-legal record, wherein the history is entered as ‘patient was a pillion rider in a two wheeler triple ride which was hit by KSRTC bus’ contends that this crucial evidence was lost sight off by the Tribunal. RW-1, the driver of the bus had deposed that the accident in question caused only due to the negligence of the rider of the motorcycle viz., the minor boy. The vehicle being driven by a minor boy, who had no driving licence would itself be suffice to hold that the accident was on account of negligence of the rider of the bike. The vital evidence placed on record by the appellant-Corporation was overlooked by the Tribunal. In support of her contentions, the learned counsel placed reliance on the Judgment of the Hon’ble Apex Court in the case of NWKRTC –v- Gourabai and others in Civil Appeal No.3171/2009 DD15.2009.-. 7 - 5. Per contra, learned counsel appearing for the claimants supporting the impugned Judgment and award contends that Ex.R1 was issued by the Medical Record Officer, JSS Medical College, Mysore, the author of the said Ex.R1 was not examined by the appellant- corporation. The wound certificate issued by the Basappa Memorial hospital, marked as Ex.P13 clearly indicates the history which reads as “RTA (road traffic accident) while going by two wheeler triple ride hit by KSRTC bus.” The injured himself was riding the vehicle, though it was a triple ride, the same would not disentitle the claimant from claiming the compensation under the provisions of the Act. Section 128 of the Act prohibits the driver of two wheeler from carrying more than one person in addition to himself, in violation of the same, punitive action is prescribed under the Act and Rules. Violation of the provisions of Section 128 of the Act and the Rule 123 of the CMV Rules and Rule 143 of the Karnataka Motor Vehicle Rules, 1989 do not - 8 - suggest that the contravention of the said provisions would be construed as negligent act to deny the compensation under the provisions of the Act. The injured was in a state of shock, losing his wife and son besides sustaining grievous injuries. In such a traumatic condition, the entries made in the medico- legal register would not instill any credential value, more particularly, when the author of the said document at Ex.R1 was not examined by the appellant- corporation. In support of his contentions, learned counsel placed reliance on the following Judgments:
1. Sri.Anjanappa & another –v- Sri.Raghavendra and others (MFA No.10768/2010 DD206.2013 (MV) 2. Sudhir Kumar Rana –v- Surinder Singh AIR2008SC24056. Heard the learned counsel for the parties and perused the material on record. The point that arises for consideration is, whether the Tribunal was justified - 9 - in fastening the liability on the appellant-Corporation to satisfy the award ?.
7. The challenge of liability mainly stems from Ex.R1 which is nothing but a medico-legal report. The said document reads as under: “Present history - Patient was a pillion in a two wheeler, triple ride which was hit by KSRTC bus in Chamarajanagar at around 6.30 p.m. on 1.5.2011. Past history – no history of loss of consciousness. Xxxxx Provisional Diagnosis – Head injury.” 8. It is an undisputed fact that it was triple riding on a two wheeler. Ex.R1 is the case record of JSS hospital, Mysuru. Though the said document indicates that there was no loss of consciousness, the shock and trauma faced by the injured/claimant sustaining grievous injuries besides losing the wife and child can - 10 - not be ignored. The sudden death of the kith and kin would obviously disturb the mind of any person though he might have not lost the sense or the consciousness, loss of tranquility of mind is obvious. Immediately after the accident the claimant was shifted to the hospital for medical treatment and at that time, taking the history by the concerned medical officer/any authorized person would not be viewed with suspicion, casting any aspersion, at the same time, the Medical Officer/any authorized person going wrong in recording the history of injury either by inadvertence information given by the injured or some other persons accompanying him to the hospital or recording by inadvertence of the Medical Officer himself/any person cannot be ruled out. The author of the Ex.R1, if examined by the Corporation, then the truth would have been discerned. The more significant aspect is, the said document do not bear the signature of any person. Provisional diagnosis disclosed ‘head injury’. The Judgment relied upon by the learned - 11 - counsel appearing for the appellant in the case of Gourabai (supra), no way assists the Corporation. The Hon’ble Apex Court has rendered the Judgment in the context of the reference made to the evidence of the doctor, who had admitted the deceased to the hospital, that the deceased had suffered head injury due to fall from the height of 8-10 ft. of his own house. It was further observed that the brother of the injured had stated that he did not know what was written in the document and his signature was taken on one page. In such circumstances, it was held that a doctor will not take a signature on a piece of paper mentioning something which is not correct, Ex.R1 establishes beyond shadow of doubt that the injuries sustained were not on account of any vehicular accident. But in the present case, the document Ex.R1 does not bear the signature of any person. It was issued by the medical record officer of J.S.S. Medical College & Hospital, - 12 - Mysuru on 11.08.2011. No witness was examined in support of the said document. Hence, the said judgment of Gourabai’s case (supra) is not applicable to the facts of the present case.
9. The Tribunal proceeded to observe that the injured Bellappa was the rider and the deceased Mahadevamurthy was the pillion rider. Moreover placing reliance on Ex.P13, wound certificate, where there is no mention inasmuch as the injured travelling as a pillion rider, the tribunal held that no contributory negligence can be attributed on the part of the victims. It is trite that breach of a rule cannot be inferred to have culminated into contributory negligence.
10. The Hon’ble Apex Court in the case of B.V.Nagaraj –v- Oriental Insurance Company reported in (1996) 4 SCC647has held thus: - 13 - “It is plain from the terms of the insurance policy that the insured vehicle was entitled to carry six workmen, excluding the driver. If those six workmen when travelling in the vehicle, are assumed not to have increased any risk from the point of view of the insurance company on occurring of an accident, how could those added persons be said to have contributed to the causing of it is the pose, added persons be said to have contributed to present case the driver of the vehicle was not responsible for the accident. Merely by lifting a person or two, or even three, by the driver or the cleaner of the vehicle, without the knowledge of the owner, cannot be said to be such a fundamental breach that the owner should, in all events, be denied indemnification. The misuse of the vehicle was somewhat irregular though, but not so fundamental in nature so as to put an end to the contract, unless some factors existed which, by themselves, had gone to contribute to the causing of the accident.” (emphasis supplied) - 14 - The said Judgment has been followed subsequently in Lakhmi Chand –v- Reliance General Insurance Company Limited reported in (2016) 3 SCC100wherein it was held that in order to avoid liability must not only establish the defence claimed in the proceeding concerned, but also establish breach on the part of the owner/insured of the vehicle for which the burden of proof would rest with the Insurance company. The breach of the policy must be fundamental in nature that it brings the contract to an end. It must be established that the accident was, in fact, caused on account of rash and negligent driving by its driver. The Hon’ble Apex Court was considering the case of the passengers travelling in the vehicle beyond the permitted load/seating capacity. Six passengers were carried in the vehicle at the time of occurrence of the accident when the permitted load in the vehicle was only 1+1, the insurer contended that there was violation of terms and conditions of insurance policy, as such not liable to - 15 - indemnify the owner. In that context, it was held that the excess passengers carried in a vehicle by itself would not be construed as breach on the part of the owner/insured of the vehicle. Moreover, when the charge sheet was filed against the driver of the opposite vehicle.
11. In the case of Sri. Anjanappa’s case (supra) , the Division Bench of this court had an occasion to consider the provisions of Section 128 of the Act and the Rule 123 of the CMV Rules and 143 of the KMV Rules vis-à-vis claim made while the deceased carrying two pillions on the motorcycle. It was almost same set of facts as the case on hand, it was held merely breach of law or duty would not create a liability to pay damages. Merely because the deceased was riding motorcycle with two persons on the vehicle though amounts to contravention of Section 128 of the Act, it does not - 16 - amount to negligent act on the part of the deceased. The rider riding the vehicle, if it is demonstrated lost control of the vehicle, he was not able to balance the vehicle or because of such contravention he dashed against the vehicle which resulted in accident, then the question of extent of breach of duty resulted in negligence would be analysed. 30% of contributory negligence foisted on the deceased solely on the ground that he was riding the motorcycle with two persons behind him was held to be not permissible in law. The police documents placed on record was considered to be reliable evidence which were prepared in discharge of their official duty and in the process of investigation, in the absence of any motive being attributed. This Judgment is squarely applicable to the facts of the present case.
12. Following the above Judgments, it would be held that even assuming that the injured was a pillion - 17 - itself would not disentitle the claimant from claiming compensation.
13. Ex-R1, the document on which much emphasis is placed by the appellant-corporation cannot be considered as gospel truth since it is not proved in accordance with law.
14. Thus, Ex.R1 do not instill any evidentiary value much against the police records which clearly speaks that the vehicle in question was driven by the injured. The police authorities in discharge of their official duty after thorough investigation have prepared the reports, which cannot be overlooked and the same has to be construed as a reliable evidence. Secondly, violation of Section 128 of the Act and relevant Rules would be amenable to punitive action but that itself would not result in breach of terms and conditions of - 18 - the insurance policy, the corporation cannot escape the liability on these grounds. For the foregoing reasons, the appeals stand dismissed as devoid of merits. Sd/- JUDGE ln.