Jayalaxmi Shedthy vs Chandra Mohan Nayak

S. Sujatha, J. - This appeal is directed against the Judgment and Order passed by the Motor Accident Claims Tribunal, Kundapura, [the Tribunal'', for short] in MVC No. 823/2011.

Briefly stated the facts are:

That the claimants, legal heirs of the deceased Chandrashekar Shetty who died in the road traffic accident which occurred on 13.5.2011, instituted a claim petition before the Tribunal seeking compensation for the death of Chandrashekar Shetty. The claimants contended that the accident occurred solely due to the actionable negligence of the driver of the truck bearing registration No. KA-20-4996 [offending vehicle] which was insured with the respondent No. 2 herein. The Tribunal, after analysing the evidence on record, awarded the total compensation of Rs. 6,77,000, however attributing contributory negligence at 50% on the part of the deceased, held that the claimants shall be entitled to compensation of Rs. 3,38,500 with interest at 6% per annum. Being aggrieved, the claimants are before this Court.

The solitary ground of challenge made by the appellants is as much as attributing 50% of the contributory negligence on the part of the deceased.

The learned Counsel appearing for the appellants assailing the impugned Judgment and Award, inter alia, contends that the Tribunal grossly erred in not appreciating the evidence of the eye-witness i.e., PW.2 in the right perspective. No evidence was led by the respondents to establish the factum of contributory negligence on the part of the deceased. Despite the same, the Tribunal merely for the reason that the accident was a head on collision, attributed 50% negligence on the driver of the Marathi Omni car i.e., on the deceased which is contrary to the evidence available on record.

Per contra, learned Counsel appearing for the Insurer justifying the impugned Judgment and Award has held that the Tribunal has rightly appreciated the evidence, more particularly, Exhibit.P3 - spot mahazar which clearly establishes that the accident in question occurred due to the head-on-collision; the road was about 18 feet wide and the accident occurred on the middle of the road i.e., at about 9 feet, both the drivers of the vehicles had left much space on the left side of the road, which caused the accident. In such circumstances, it is glaring on the face of the record that the accident occurred due to the contributory negligence of the deceased. The burden lies on the claimants to establish the negligence on the part of the driver of the offending vehicle and there was no contributory negligence on the driver of the Maruthi Omni car i.e., the deceased. No fault can be found with the Insurer or the owner of the vehicle for not adducing any evidence in support of their defence. The Tribunal, after considering all these aspects fixed the contributory negligence at 50% on the part of the deceased which cannot be found fault with.

Heard the learned Counsel for the parties and perused the material on record.

It is well established principle of law that the contributor negligence has to be proved by direct or corroborative evidence. It is discerned from the records that PW 2 was the eye-witness to the incident. PW 2 had categorically stated in his testimony that the said accident occurred due to the actionable negligence of the driver of the truck duly insured with the insurer/respondent No. 2 herein. No positive material is elicited in the cross-examination of PW 2. On the other hand, no evidence is led by the Insurer to support the defence that the accident occurred due to the contributory negligence of the deceased at 50%.

It is also settled legal position that the driver of the heavy vehicle has to be more cautious while driving and should allow the other vehicles plying on the road to move comfortably. If due care and caution had been taken by the driver of the truck, the accident would have been averted. Applying the theory of heavy vehicle versus small vehicle also, the negligence attributed at 50% on the part of the deceased is unsustainable.

Yet another aspect required to be examined by this Court is the charge sheet filed against the driver of the truck. The charge-sheet filed by the Police authorities fixing the negligence on the part of the driver of the truck is not challenged and has attained finality which clearly establishes the negligence on the part of the driver of the truck. One more factual aspect which instills credence by this Court is the complaint lodged by the complainant immediately after the accident alleging negligence on the part of the driver of the truck. If all these material evidence available on record are examined comprehensively, it can be clearly held that though the accident was a head-on-collision, fixing 50% of the contributory negligence on the part of the driver of the Maruthi Omni car i.e., the deceased is unfair and unsustainable.

In the circumstances, this Court is of the considered opinion that ends of justice would be met if the contributory negligence on the part of the deceased is fixed at 10% considering the head on collision and the other evidence available on record.

Accordingly, the impugned Judgment and Award is modified fixing the contributory negligence at 10% on the deceased and 90% on the driver of the truck i.e., the offending vehicle. Since no arguments is advanced by the learned Counsel for the appellants/claimants as regards the quantum of compensation awarded by the Tribunal, the compensation quantified by the Tribunal is confirmed. The liability shall be fastened on the respondents 1 and 2 to make the payment of the quantified amount to the extent of 90% of Rs. 6,77,000 with interest at 6% per annum from the date of petition till realization.

The appeal stands disposed of in terms of the above.