Oriental Insurance Co. Ltd. vs Master Siddarth Bharath

K.L. Manjunath, J.—Heard the learned counsel appearing for all the parties.

Three claim petitions were lodged before the MACT, Bangalore, claiming compensation on account of death of Vaidehi and on account of the injuries sustained by the claimants Siddarth Bharath and Goutham Bharath in an accident that occurred on 5-5-2004 near Gundlupet on Ooty Bangalore road. It is the case of the parties that at about 11.00 a.m. on 5-5-2004 the claimants Siddarth and Goutham and deceased Vydehi were travelling from Oooty towards Bangalore in a car bearing No. KA 01 MA 1305. When the car was near ITI College, Gundlupet, on Ooty Bangalore Main Road the accident occurred. According to them, the bus/bearing No. KA 03 4050 was proceeding from Mysore towards Gundlupet due to head on collusion the accident occurred. Therefore, the claim petitions were lodged against the owners of the Insurance Company of both the vehicles.

The tribunal considering the evidence let-in by the parties held that the accident occurred due to the contributory negligence of the driver of the car so also the driver of the bus, the contributory negligence but apportioned equally. Therefore the present appeals are filed; by Oriental Insurance Company contending that the finding of the tribunal on the question of negligence of the driver of the bus is incorrect and liable to be set aside. The claimants have also filed separate appeals and so also the Insurance Company of the car and those matters would be considered by us separately. Accordingly they are delinked.

It is the specific contention of Mr. Krishna Swamy, the learned counsel appearing for the appellant that the tribunal while considering Ex. P-3 the spot Mahazar Ex. P-4 the sketch prepared by the police during the course of the investigation, without there being any evidence of the driver of the car has wrongly held that the accident occurred due to the contributory negligence of the driver of both the vehicles. Taking us through Exs. P-3 and P-4 he contends that the car was proceeding from Ooty towards Gundlupet from South to North and the bus was proceeding from Mysore side from North to South the accident has taken place on the Eastern extreme left edge of the road. According to him, the width of the road is 25 feet. The bus was on the eastern side. When the car was coming from opposite direction if the width of the road was 25 feet there was no need for the driver of the car to take the vehicle to the extreme right side, since the tribunal did not consider that there was no other go for the driver of the bus than to take the vehicle to his further left, as the left side wheels of the bus were on the footpath. Therefore he contends that the finding of the tribunal on the question of negligence has to be set aside.

Mr. Mahesh, the learned counsel appearing for the Insurance Company contends that the finding of the tribunal is not required to be disturbed because the sketch alone or the mahazar drawn by the police during the course of investigation cannot be the basis to hold that the accident occurred due to the rash and negligent driving of the driver of the car only. According to him, when Ex. P-4 was drawn both the vehicles were removed from the place of the accident towards the extreme left side. In the circumstances, he requests the Court to dismiss the appeal.

Having heard the learned counsel appearing for all the parties what is to be considered by us in these appeals is:

1) Whether the finding of the tribunal on the question of contributory negligence of drivers of both the vehicles requires to be inferred with?

We have perused Exs. P-3 & 4. The police have not filed the charge sheet against the driver of the bus. Ex. P-4, the sketch reveals that the bus was to the extreme left side of the road. As stated supra, as contended by Mr. Krishna Swamy, the left side wheels of the bus were found on the mud portion. When the width of the road was 25 ft. there was no need for the driver of the car to take his vehicle to the extreme right side. As contended by Mr. Krishna swamy, there was no space for the bus driver to take his vehicle to his further left as he has crossed up-to footpath, the tribunal without considering these facts has given finding as if both the drivers were responsible for the cause of the accident, which finding is perverse and liable to be set aside.

It is also brought to our notice that in the accident the driver of the car also died. There was no difficulty for the Insurance Company of the car to get admission from the claimants evidence because one of them was an eye witness. It has also come in the evidence of the claimants that the car was proceeding in a high speed. Therefore we are of the view that the finding of the tribunal on the question of negligence has to be set side. Accordingly we hold that accident occurred due to the rash and negligent driving of the driver of the car bearing No. KA-01 MA 1305, in view of the finding on the above points we have to allow these appeals.

In the result, these appeals are allowed. The liability saddled on the appellant Insurance Company in all the claim petitions are set aside dismissing the claim petitions against the appellant Insurance Company.

The amount in-deposit either before this Court or before the tribunal is ordered to be refunded to the appellant-Insurance Company.