Circumvented Round-About To Take Immediate Turn: Karnataka High Court Reduces Compensation Citing Contributory Negligence Of Deceased

The Karnataka High Court has said that the onus is on the claimants to prove that there was rash and negligent driving only by the alleged offending vehicle driver causing the accident. However, in case if the respondent/Insurer are able to show that the road traffic accident has not occurred in the manner as agitated by the claimants, then, the Tribunal should not hesitate in fixing the contributory negligence, on the part of the deceased.

A single judge bench of Justice Dr H B Prabhakara Sastry partly allowed the appeal filed by M/s. National Insurance Company Ltd and modified the award passed by the Tribunal dated 27-01-2017, and reduced compensation amount awarded from Rs 22,03,000 to Rs 21,00,000, to the claimants.

The Insurance company had approached the court denying the manner of occurrence of the road traffic accident, as contended by the claimants.

The court on going through the records noted that the claimants, in order to prove that the occurrence of the road traffic accident, as contended by them, got examined claimant No.1 - the wife of the deceased and one K. Vadivelu Chetty, projecting him as an eye witness to the alleged road traffic accident.

Further it said that the wife has stated in her cross-examination that she was not an eyewitness to the accident. The second witness who claims to be an eyewitness, has stated that the deceased was on the centre of the Circle and was taking his bike towards the right side, by which time, the road traffic accident in question had occurred.

To which the bench said “The evidence of the alleged eye witness when read with the spot sketch at would go to show that, the deceased has not taken his Motorcycle around the Circle from its left side, but circumvented the Circle and took an immediate right turn, as such, the spot of the accident has fallen in the middle of the road.”

Further it said “Had the deceased taken a round to the said Circle, keeping himself on the left side and if still assuming that the accident has taken place, then the spot of the accident could not have been on the same spot as what is shown in the spot sketch. But it should have been much prior to that, since the rider of the Motorcycle (deceased) was intending to go to his right side by taking a turn.”

Thus it observed “Since he (deceased) has avoided to take a round of the Circle and must have tried to take a right turn immediately, thus, immediately after he took a turn to circumvent the Circle, the accident has taken place on the other side of the road.”

Following which it held “The evidence of PW-2 when read along with the documentary evidence, would go to show that, there is contribution from the deceased’s side also, as the rider of the MotorCycle for the cause of the road traffic accident.”

It added “As such, merely because a charge sheet is said to have been filed against the driver of the Maxi Cab for the offences punishable under Section 304-A of the Indian Penal Code, 1860 and Section 134(a) and (b) of the M.V. By that itself it cannot be concluded that the absolute negligence was solely on the part of the driver of the Maxi Cab only.”

Noting that the insurance company before the Tribunal has not taken a specific contention by making use of the word ‘contributory negligence’ in its Statement of Objections, however, it has categorically denied that the accident has occurred in a manner as stated by the complainants (claimants) in their claim petition, the bench opined,

“It is for the claimants to prove that there was rash and negligent driving of the alleged offending vehicle Maxi Cab by its driver. In the said process, if they are unable to prove that the sole rash and negligent driving was only on the part of the driver of the Maxi Cab and on the other hand, if the respondent/Insurer could able to show that the road traffic accident has not occurred in the manner as agitated by the claimants and could able to establish that there is some contribution on the part of the deceased rider of the Motor Cycle also, then, the Tribunal should not hesitate in fixing the contributory negligence even on the part of the deceased rider of the Motor Cycle also.”

Further it held “The circumstances of the case, the location/spot of the occurrence of the alleged road traffic accident and the nature of the vehicles would enable this Court to fix the contributory negligence on the part of the deceased rider of the MotorCycle at 20% and the remaining negligence which would be 80% upon the driver of the Maxi Cab.”

The bench also noted that the claimants have not produced any income tax returns of the deceased to prove their claim that the deceased was earning Rs 50,000 per month from his business.

It then said “Had really the deceased had such an income of Rs.50,000 per month, he should have definitely been an income-tax assessee and that the claimants should have necessarily produced his income-tax returns and other necessary documents to show his income.”

Then it held “Thus, the income of the deceased at 15,000 per month, which is taken by the Tribunal as the income of the deceased appears to be quite reasonable and just in the circumstances of the case and I retain the same as the income of the deceased.”

The bench also modified the rate of interest awarded on the compensation amount from 9% per annum and re-fixed it at 6% per annum.

Accordingly it partly allowed the appeal with a direction to the Insurance company to deposit its share of compensation with interest at the rate of `6% per annum from the date of the claim petition till the date of payment, within thirty days from today.

Case Title: M/s National Insurance Company Ltd And Mrs Asha & others

Case No: MISCELLANEOUS FIRST APPEAL NO. 2603 OF 2017

Citation: 2023 LiveLaw (Kar) 163

Date of Order: 27-03-2023

Appearance: Geetha Raj, Advocate for Appellant.

Sathisha T., Advocate for R-1 to R-3.