The Managing Director Karnataka State Road Transport Corporation vs Padmashri and Others

B. Sreenivase Gowda

This appeal is by the KSRTC challenging the judgment and award made by the Tribunal on the ground of negligence and liability. Learned Counsel appearing for the appellant submits, on 12-5-02 when deceased Shankara was travelling in the KSRTC bus bearing registration No. KA-13-F-799 from Holenarasipur towards Bangalore, a Tipper lorry bearing registration No. KA-13-911 came from opposite direction in a rash and negligent manner and dashed against the right side rear portion of the bus. As a result, deceased sustained grievous injuries and he was shifted to District Hospital, Mandya and later to NIMHANS, Bangalore. From there, he was shifted to K.K. Hospital, Mysore, where he expired on 24-07-02. Case was registered against the driver of offending Tipper lorry and Police after investigating the complaint have also filed charge sheet against the driver of tipper lorry. It is also the case of the claimants that accident was occurred due to rash and negligent driving of tipper lorry by its driver and after three years of the accident, KSRTC came to be impleaded as respondents 5 and 6 to the claim petition, mainly on the ground that the driver of tipper lorry did not possess an effective and valid driving licence to drive the tipper lorry and insurer of tipper lorry is not liable to indemnify the owner and pay compensation to the claimant. The Tribunal is not justified in holding accident was occurred due to contributory negligence of 70% on the part of the driver of tipper lorry and 30% on the part of the driver of KSRTC bus. Therefore, he prays for allowing the appeal by setting aside the judgment and award of the Tribunal, in so far as fastening 30% of liability against the KSRTC is concerned.

Respondent No. 1 herein is the claimant. She was served and remained unrepresented. R.2 is the driver of tipper lorry and notice to him was dispensed with. Respondent No. 3 is the owner of the lorry, represented through his Counsel. Learned Counsel for R.3 submits, there is no illegality or infirmity in the findings of the Tribunal holding 70% contributory negligence on the part of the driver of tipper lorry and 30% on the part of the driver of KSRTC bus and he prays for dismissal of the appeal.

R.4 is the Oriental insurance Co. Ltd. under whom tipper lorry was insured, and insurance policy was in force from 20-4-01 to 25-4-02 as observed in Para 15 of the judgment of the Tribunal and policy was not in force as on the date of accident. Further, the driver of tipper lorry did not possess an effective and valid driving licence, as on the date of accident. authorising him to drive the tipper lorry. R.5 is the joint owner of tipper lorry. She was served and remained unrepresented.

I have perused the judgment and award of the Tribunal and heard the Counsel for the appellant and the respondent No. 3.

The point that arises for my consideration in the appeal is:

Whether Tribunal is justified in holding accident was occurred due to contributory negligence of 70% on the part of the driver of tipper lorry and 30% on the part of the driver of KSRTC bus and in fastening 30% liability against the KSRTC?

Accident was occurred on 12-5-02. Case was registered against the driver of tipper lorry. Police after investigating the case have filed the charge sheet against the driver of tipper lorry. As per the averments made in the claim petition, prior to its amendment, it is contended that the accident was occurred due to rash and negligent driving of tipper lorry by its driver. After an amendment to the claim petition, it is averred that accident was occurred due to contributory negligence of the driver of tipper lorry as well as the driver of KSRTC bus.

Claimant in support of the said contention, except examining herself, has not examined any independent eyewitness to the accident. FIR, charge sheet, mahazar, sketch. P.M. report and IMV report marked as Exs. P. 1, 2, 3, 4, 7 and 9 go to show, the accident was occurred due to rash and negligent driving of tipper lorry by its driver. The driver of tipper lorry though was represented through his Counsel in the claim petition before the Tribunal, did not enter the witness box and deny the allegation made in the claim petition. Owner of tipper lorry though was served with the notice of claim petition before the Tribunal, did not contest the claim petition and he was placed ex parte. The insurer of tipper lorry represented through Counsel, brought to the notice of the Tribunal that insurance policy issued in favour of tipper lorry was not in force as on the date of accident and driver of tipper lorry did not possess an effective driving licence to drive the vehicle as on the date of accident. That after three years of filing the claim petition, the driver of KSRTC bus and the Managing Director, KSRTC, came to be impleaded as respondents 5 and 6. They have filed written statement denying the claim of claimant, inter alia contending, accident was occurred due to sole negligence on the part of the driver of tipper lorry and driver of KSRTC bus has not contributed in any manner to the accident. Apart from that, they have examined the driver of KSRTC bus as R.W.2, who specifically deposed in his evidence that accident was occurred due to rash and negligent driving of tipper lorry by its driver and he has not contributed any thing for the accident. The Tribunal in para 14 of its judgment has observed, contents of Ex.P.3 and P.4 i.e. mahazar and sketch, clearly reveal that the driver of tipper lorry went towards wrong side and dashed against the right rear side of the bus and caused the accident. Having said so, Tribunal would not have held, accident was occurred due to contributory negligence of 70% on the part of the driver of tipper lorry and 30% on the part of the driver of KSRTC bus. Materials placed before the Tribunal clearly go to show, accident was occurred due to rash and negligent driving of tipper lorry by its driver and driver of KSRTC bus has not contributed anything towards the occurrence of accident and hold it accordingly. Accordingly, appeal is allowed and judgment and award of the Tribunal in so far as holding accident, has occurred due to composite negligence of 70% on the part of the driver of tipper lorry and 30% on the part of the driver of KSRTC bus is set aside and it is held, accident was occurred due to sole rash and negligent driving of the tipper lorry by its driver. Consequently. 30% of liability fastened against the KSRTC is also set aside and it is held that driver and joint owners of tipper lorry, namely respondents 2, 3 and 5 are jointly and severally liable to pay entire compensation awarded by the Tribunal with interest, within two months from the date of receipt of a copy of this judgment, and the claimants are entitled to recover the compensation awarded by the Tribunal from the respondents - the driver and the joint owners of offending tipper lorry.

No order as to costs.