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A.S. Manjunathaiah and anr. Vs. M.V. Nanjundaiah and K.S.R.T.C. - Court Judgment

LegalCrystal Citation
SubjectInsurance;Motor Vehicles
CourtKarnataka High Court
Decided On
Judge
Reported in1(1985)ACC19
AppellantA.S. Manjunathaiah and anr.
RespondentM.V. Nanjundaiah and K.S.R.T.C.
Excerpt:
.....the front right tyre of the bus in question. the post mortem report clearly states the head of the girl was smashed. 13. the evidence on record clearly establishes that the bus was coming from the opposite direction and the girl was going on the left side of the road. 14. we have no hesitation to hold that the circumstantial evidence brought on record clearly establishes that the bus came on the off-side of the road viz. 15. these circumstances would clearly render the evidence of the eyewitness probable on the facts of the case and they would render improbable the evidence of the driver. the nature of the injury observed in the post mortem report would clearly show that this is a case of bus running over the head of the girl. normally, in the case of death of a child, compensation is..........who was on the left side of the road. the bus ran over the girl causing instantaneous death of the girl. the girl was intelligent and she was studying 5th standard. she was learning dancing and she had bright future prospects and they claimed rs. 25,000/- as compensation for the death of the girl roopa.3. the respondents denied the liability. they contended that the death of the girl was not on account of rash and negligent driving of the bus and that the amount of compensation claimed by the claimants was exorbitant.4. the tribunal raised the following issues as arising for its consideration :(1) do the petitioners prove that a.m. roopa died in a motor accident as alleged in the petition?(2) do the petitioners prove that the accident was due to the negligence of the 1st.....
Judgment:

G. N. Sabhahit, J.

1. This appeal by the claimants is directed against the Judgment and award dated 2-12-1977 passed by the Claims Tribunal, Hassan, in Miscellaneous (M.V.C.) 22 of 76 on its file, dismissing the claim petition. The claimants are the parents of the deceased girl Roopa, aged about 9 1/2 years.

2. It is the case of the claimants that their daughter Roopa was coming home from the school on 8-11-1975 at about 2.30 P.M. on the B.H. Road. The bus bearing No. MYF 2234 owned by the 2nd respondent and driven by the first respondent was coming from the opposite direction. It was driven in a rash and negligent manner and the bus came and dashed against the girl, who was on the left side of the road. The bus ran over the girl causing instantaneous death of the girl. The girl was intelligent and she was studying 5th standard. She was learning dancing and she had bright future prospects and they claimed Rs. 25,000/- as compensation for the death of the girl Roopa.

3. The respondents denied the liability. They contended that the death of the girl was not on account of rash and negligent driving of the bus and that the amount of compensation claimed by the claimants was exorbitant.

4. The Tribunal raised the following issues as arising for its consideration :

(1) Do the petitioners prove that A.M. Roopa died in a Motor accident as alleged in the petition?

(2) Do the petitioners prove that the accident was due to the negligence of the 1st respondent-driver?

(3) What is the amount of compensation to which the petitioners are entitled and from whom it is recoverable? and

(4) To what relief are the parties entitled?

5. During hearing, the claimants examined four witnesses including the first claimant, and got marked Exhibits P. 1 to P. 3. Ext. P. 1 is the certified copy of the mahazar and Ext. P. 2 is the Motor Vehicle Inspector's report and Ext. P. 3 is the P.M. Report. As against that, the first respondent-driver of the vehicle in question was examined as D.W. 1.

6. The Tribunal appreciating the evidence on record while holding that Roopa died on account of the injuries sustained in the motor accident in question, recorded its finding that the claimants did not prove that the accident was the result of rash and negligent driving of the vehicle in question. In that view, the Tribunal dismissed the petition of the claimants. Aggrieved by the said judgment and awarded, the claimants have instituted the above appeal before this Court.

7. The learned Counsel for the appellants strenuously urged before us that the learned Member of the Tribunal was not justified in thinking that the facts of the case did not present a case of res ipsa loquitur. He further submitted that the learned Member of the Tribunal was not justified in disbelieving the eye-witness and upholding the version of the driver. He further argued that the compensation suggested by the Tribunal was very much on the lower side and he prayed that the compensation should be awarded as prayed for.

8. As against that the learned Counsel for the contending respondents argued supporting the judgment and award of the Tribunal.

9. The points, therefore, that arise for our consideration in this appeal are:

(1) Whether the Tribunal was justified in holding that the claimants failed to establish that the accident in question was the result of rash and negligent driving of the bus?

(2) If not, what is the compensation to which the claimants are entitled and

(3) What order?

10. P.W.1 Chinmaya in her deposition has stated that on that fateful day, herself, Roopa, Rekha, Uma and Rajamani were all going on B.H. Road at Arsikere after attending the classes in the Convent. They were going on the left side of the road. When they were so going in front of the house of Dandurmut Basavaiah, the bus came from Banavara side at high speed and the bus ran over Roopa. Roopa died on the spot. Roopa was going on the footpath at the time of the accident and that she was going in front of them. The evidence of this witness finds corroboration particularly in the evidence of P.W. 2 Laxmanasetty. The learned Member of the Tribunal, however, appears to think that there are discrepancies in the evidence of these two witnesses and, hence, if he disbelieves the evidence of one witness he has to disbelieve the evidence of the other witness also. It is rather surprising that the learned Member of the Tribunal was not obviously aware that in India the doctrine of 'falsus in omnibus' is held untenable and that the Supreme Court of India has held that the evidence of a witness which finds corroboration, even if it is partly true, has to be accepted by the Court, considering the probabilities of the case. The learned Member of the Tribunal cannot go on to say that if he disbelieves the evidence of one witness, he has to disbelieve the evidence of the other witness also, simply because the evidence is not truthful in all respects.

11. Moreover, the accident happens in a split second. It would be difficult to accurately observe and precisely communicate what happened. Most impartial of persons are likely to misapprehend. That is why the Supreme Court, in Awadh Behari Sharma v. State of Madhya Pradesh : 1956CriLJ1372 has observed: 'The correct approach in a matter of this kind should be to determine the crucial issue not on a mere balance of oral evidence but on broader considerations and clear probabilities. In a matter of this kind, oral evidence is likely to be honestly discrepant and the question is not one of weighing the reliability of witnesses'. The Tribunal should always appreciate the oral evidence in the light of circumstantial evidence, brought on record in the case.

12. The learned Member of the Tribunal says, in the course of his judgment, that this is not a case where the doctrine of res ipsa loquitur is attracted. That clearly shows that he has not taken into consideration the circumstantial evidence at all, placed on record. The mahazar got marked in the proceeding as Exhibit-P. 1 clearly stales that there were blood marks to the front right tyre of the bus in question. It further states that there was a dent to the front right mudguard of the bus. The Post Mortem report clearly states the head of the girl was smashed. The brain substance had come out. Eye balls had protruded. If the learned Member of the Tribunal had cared to notice these, he should have held that this was a case of resipsa-loquitur, especially so, when the facts of the case established that the girl was lying on the left side of the road and it was right extreme side to bus.

13. The evidence on record clearly establishes that the bus was coming from the opposite direction and the girl was going on the left side of the road. The accident took place on the extreme left side of the road. The facts that the head of the girl was smashed, the brain matter had come out, eye balls had protruded, blood was sticking to the tyre show that the bus ran over the head of the girl, smashing her head and sticking blood to the tyre. The learned Member of the Tribunal has ignored all these and has observed that this is not a case where resipsa-loquitur is attracted, which is untenable.

14. We have no hesitation to hold that the circumstantial evidence brought on record clearly establishes that the bus came on the off-side of the road viz., on its right side, dashed against the girl and ran over her head and thus caused the accident. The driver was in the control of the bus. The bus had no business to go on its right side and dash against the girl and run over her head. That is resipsa-loquitur, the thing speaks for itself.

15. These circumstances would clearly render the evidence of the eyewitness probable on the facts of the case and they would render improbable the evidence of the driver. The driver in his deposition has stated that the girl might have dashed against the hind side of the bus. He has not explained how the blood was sticking to the right front tyre of the bus, and the dent on the right side mudguard. The version of the driver is not in consonance with the facts of the case and the circumstantial evidence in the case. The nature of the injury observed in the post mortem report would clearly show that this is a case of bus running over the head of the girl. The Doctor has noted that the head of the girl was smashed, the brain substance had come out and the eyeballs had protruded. All the injuries are not likely to be caused if the girl hit the hind portion of the bus.

16. The mahazar would further establish that the bus went further 50 metres and 70 cms. before it came to a halt. That shows that the bus was coming with high speed and there were no tyre marks on the road. That shows the driver did not care to apply brakes and it also establishes that the accident took place on account of rashness and gross negligence on the part of the driver of the bus.

17. Hence, we have no hesitation to hold that the bus was driven in a rash and negligent manner which resulted in the accident and, accordingly, we set aside the finding of the Tribunal to the contrary.

18. That leads us to the question of quantum of compensation to which the parents of the girl are entitled. Normally, in the case of death of a child, compensation is awarded under the head 'loss to the estate of the deceased'. The girl had prospects of happy future, which was cut-short by the accident. Her father has deposed that she was a brilliant girl and that she was learning dancing also. She was aged about 91/2 years She has thus crossed the uncertainties of childhood. In the circumstance, therefore, we are inclined to award Rs. 12,400/- as compensation for the death of the girl, to her parents.

19. In the result, the appeal is allowed. The judgment and award of the Tribunal are set aside. The petition of the claimants is allowed. They are granted compensation of Rs. 12,400/- from respondents. Since the K.S.R.T.C has paid Rs. 400/- ex-gratia, the respondents are directed to pay Rs. 12,000/-' with interest thereon at 6% per annum from the date of the proceeding till realisation and costs of the proceeding throughout. We further direct that 2nd respondent General Manager, K.S.R.T.C. shall pay the compensation awarded with costs and interest from out of the self insurance Fund.


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