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Judgment
P.D. Waingankar, J.—By judgment and award dated 25.6.2013, the claim petition filed by the appellants-claimants under section 166 of the M.V. Act in MVC No. 7543/2011 came to be dismissed by Motor Accident Claims Tribunal and XIX Addl. Small Causes Judge, Bangalore. Aggrieved by the dismissal of the claim petition, this appeal is preferred by the appellant-claimants.
The brief facts which gave rise to this appeal are as under:-
Deceased Govindaraju was travelling in a car bearing registration No. KA-41-M-8829 alongwith his friend Manjunath from Bangalore towards Coimbature on 11.12.2009. At about 2.30 a.m. on 12.12.2009 early in the morning when the car was proceeding near Dhadangam flyover on Krishnagiri Salem road, a KSRTC bus bearing registration No. KA-01-F-8154 came from opposite direction in rash and negligent manner and dashed against the car driven by Manjunath, as a result, the driver of the car Manjunath and Govindraju sustained grievous injuries. Govindaraju died on the way to the hospital.
The father, mother and brother of deceased Govindaraju filed a claim petition under Section 166 of the Motor Vehicle Act in MVC No. 7543/2011 against the owner and insurer of the car and bus, contending that deceased Govindaraju was working as Sales Executive and earning monthly income of Rs. 30,000/-, he was bread earner of the family, they spent about Rs. 50,000/-towards ''transportation of dead-body'' and ''funeral expenses'' and that the accident occurred on account of rash and negligent driving of the driver of the car and driver of the KSRTC bus.
The claim petition was contested by the insurer of the car and the bus. It is the case of the insurer of the car that at the time of accident deceased Govindaraju was driving the car, Manjunath his friend was sitting by his side, that the accident occurred purely due to rash and negligent driving of the car by deceased Govindaraju, on account of his rash and negligent driving, the car dashed against the road divider in a great speed and thereafter car dashed against the KSRTC bus. As such, the insurance company has sought for dismissal of the claim petition as not maintainable as against the owner and insurer of the car since the accident occurred on account of negligence of deceased Govindraju, the driver of the car.
The Insurer of the KSRTC bus also opposed the claim petition contending that the accident occurred purely due to negligence of the driver of the car as the car against the road divider and unable to control the speed, the car dashed against the KSRTC bus.
The claim petition came up for consideration before the Tribunal, before whom, on behalf of the claimants, claimant No. 3-Sri Guruprashanth @ Guruprasad-brother of the deceased was examined as PW-1, one Siddaraju claiming to be the eyewitness to the incident as PW-2. Exs-P1 to P19 were marked. One Shivakumar, official of the insurer of the car was examined as RW-1 and the policy was marked as Ex-R1.
The tribunal upon hearing the submissions made by learned counsel appearing for the parties and upon closer scrutiny of the evidence placed on record came to the conclusion that at the time of accident, deceased Govindaraju was driving the car and it is on account of his rash and negligent driving, the accident occurred, wherein he died and as such, the claim petition filed by legal representatives of deceased Govindaraju under Section 166 of the M.V. Act is not maintainable. Consequently, the claim petition came to be dismissed by judgment and award dated 25.6.2013. Aggrieved by the dismissal of the claim petition, this appeal is preferred.
We have heard learned counsel appearing for the appellants-claimants and learned counsel appearing for the respondents-insurer of the car and insurer of the KSRTC bus. Perused the records and judgment and award passed by the Tribunal.
Learned counsel appearing for the appellants-claimants has submitted before us that at the time of accident, car was being driven by Manjunath and deceased Govindaraju was sitting by the side of Manjunath. Learned counsel further submitted that death of deceased Govindaraju was on account of composite negligence on the part of the driver of the car and the driver of the KSRTC bus, the tribunal without properly appreciating the evidence to that effect has erred in recording a finding that deceased Govindaraju was driving the car and the accident occurred on account of rash and negligent driving of the car by deceased Govindaraju. Learned counsel placed reliance on the following decisions in support of his arguments and sought to set-aside the judgment and award passed by the tribunal and to allow the claim petition:-
Zareen Bega Vs. New India Assurance Co. Ltd. and Others,
Minu Rout and Another Vs. Satya Pradyumna Mohapatra and Others,
Per-contra, learned counsel appearing for the insurer of the car and the insurer of the bus while justifying the judgment and award passed by the Tribunal have submitted that the tribunal upon consideration of evidence on record has rightly recorded a finding that deceased Govindaraju was driving the car and it is on account of his negligence, the accident occurred wherein he died and hence both the learned counsel sought for dismissal of the appeal as devoid of merits.
Having heard the submissions made by both the learned counsel for the parties and upon perusal of the records, the following point would arise for our consideration:-
"Whether the finding recorded by the tribunal that deceased Govindaraju was driving the car and the accident occurred on account of his own negligence is just and proper"
The accident as such is not in dispute. It is also not in dispute that in the accident, deceased Govindaraju sustained severe injuries and on the way to the hospital, he died. Further, the relationship of the claimants with deceased Govindaraju is also not in dispute. The case of the claimants is that at the time of accident, deceased Govindaraju was sitting by the side of the driver Manjunath, who was driving the car and that the accident occurred on account of composite negligence on the part of driver of the car and the driver of the KSRTC bus. Whereas it is the case of insurer of both the vehicles involved in the accident that at the time of accident, Govindaraju was driving the car in a rash and negligent manner and it is because of his negligence, the car dashed against the road divider and thereafter it dashed against the KSRTC bus. Though on behalf of the claimants, claimant No. 3 Guruprasanth was examined as PW-1, he is not an eyewitness to the accident and therefore his evidence on the aspect of negligence is of no assistance to decide the issue on negligence. PW-2-Siddaraju was examined as PW-2. He claims to be the eyewitness to the accident. But if we go through the evidence of PW-2, he has admitted in his evidence that his name finds no place in the charge-sheet filed by the police. Be that as it may, there is no bar to examine an eyewitness, who is not cited as charge-sheet witness. Even if PW-2 is accepted as eyewitness to the accident, his evidence is of no help to the claimants. On the other, he supported the case of the respondents. In his cross examination, he has admitted that the driver of the car jumped the median and hit the bus. His evidence also makes it very clear that at the time of accident, deceased Govindaraju was driving the car. He has also admitted as true that by looking at the scene of accident, he came to know that the accident occurred due to the fault of the car driver, since he had crossed the road median. Further, the claimants have produced FIR in connection with the said accident marked as Ex-P1 in tamil version. English version is marked as Ex-P1(a). Ex-P2 is the spot mahazar and Ex-P2(a) is the English version of the spot mahazar. Ex-P3 is the sketch. It is evident from Ex-P1-FIR that the complaint in that connection was given to the concerned police by the driver of the bus Nagendra, wherein, he has clearly stated that the car driven by deceased Govindaraju came in rash and negligent manner and hit the divider at the centre of the road and thereafter it dashed against the bus. It is also evident from Ex-P1 that another person-Manjunath who was travelling with the deceased also sustained injuries. Further, it is evident from Ex-P1(a) that the driver of the car died on the way to the hospital. Ex-P3 sketch also reveals that the negligence is that of the driver of the car. Thus, even the evidence placed on record by the claimants does not support the case of the claimants. From the evidence placed on record by the claimants, one can easily come to the conclusion that at the time of accident, the car was being driven by the deceased Govindaraju in a rash and negligent manner. Unable to control the speed of the car on account of his negligence, the car dashed against the road divider and thereafter to the KSRTC bus. It is case of total negligence on the part of the driver of the car. The driver of the KSRTC bus has in no way contributed to the said accident. It is impossible to accept the theory of composite negligence put forth by the claimants. The best person to speak about the accident was Manjunath, who was also travelling in the said car. He has not been examined for the reasons best known to the claimants. In the decision relied upon by the learned counsel for the claimants reported in Minu Rout and Another Vs. Satya Pradyumna Mohapatra and Others, , charge-sheet was filed against the drivers of both the vehicles, but the charge-sheet against the deceased abated. The said decision cannot be made applicable to the facts of this case, for the simple reason that the police after investigation filed charge-sheet against the deceased as abated. Similarly in the decision reported in Zareen Bega Vs. New India Assurance Co. Ltd. and Others, rendered by the Division Bench of this Court, the tribunal held that the drivers of both the tractors involved in the accident were equally negligent. But in the case on hand, there was total negligence on the part of the driver of the car and that there was no negligence on the part of the driver of the bus. As such, the decisions will not come to the help of the appellants-claimants in any way. We do not find any illegality or irregularity committed by the tribunal while dismissing the claim petition. For the reasons stated above, the appeal is dismissed as devoid of merits.