ON

01.09.2022

AND

COMING

ON

FOR

PRONOUNCEMENT OF JUDGMENT, THIS DAY, THE COURT

DELIVERED THE FOLLOWING:

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JUDGMENT

The present appeal is filed by the insurer of the

motor cycle bearing No.KA 36/S 163 challenging the

judgment and award dated 16.4.2013 passed in MVC

No.125/2011 on the file of the Principal District Judge,

Raichur (hereinafter referred to as the 'Tribunal'),

wherein the Tribunal has directed the Appellant to pay

the entire compensation awarded.

2.

Brief facts of the case are that, on

10.6.2010 the deceased was riding on motor cycle

bearing No.KA-36/S-163 as a pillion rider and was

proceeding from Maski to Sindhanur. At that time, a

bus bearing No.KA-34/F-747 was coming from the

opposite direction in a rash and negligent manner

resulting in a head on collision between the bus and

the motor cycle, causing the accident in question, in

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which the deceased fell below the wheels of the bus

and died.

3.

The wife and son of the deceased filed

Claim Petition seeking compensation for the death of

the deceased and in the said Claim Petition the driver,

owner and insurer of both the vehicles were arrayed

as parties. The Rider, owner and insurer of the motor

cycle as well as the bus owned by NEKRTC contested

the proceedings before the Tribunal. The Claimant

No.1 examined himself as PW.1 and an eye witness as

PW.2 and marked Exs.P1 to P6. The driver of the bus

was examined as DW.1 and a representative of the

Appellant was examined as DW.2 and Exs.D1 and D2

were marked in evidence. The Tribunal upon an

appreciation of the oral and documentary evidence

available on record, recorded a finding that the rider

of the motor cycle was solely responsible for causing

the

accident

in

question,

awarded

a

sum

of

5

Rs.4,28,000/- together with interest at 6% pa., and

directed the insurer of the motor cycle to pay the

compensation awarded. Being aggrieved, the insurer

has filed the present appeal challenging the said

finding recorded by the Tribunal on contributory

negligence. No challenge is made to the quantum of

compensation awarded by the Tribunal by any of the

parties.

4.

The learned Counsel for the Appellant

contended that the Tribunal erred in holding that the

rider of the motor cycle was solely responsible in

causing the accident in question when the charge

sheet has been filed by the police authorities against

both the rider of the motor cycle as well as the driver

of the bus; that without any basis and merely on

assumptions and presumptions the said finding on

negligence has been recorded.

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5.

Per contra, the learned Counsel for NEKRTC

sought to justify the finding recorded by the Tribunal.

6.

Having regard to the contentions put forth

by the learned Counsel for the parties, the question

that arises for consideration is, 'Whether the finding

recorded by the Tribunal on negligence is required to

be interfered with?'

7.

Upon a re-appreciation of the material on

record, it is not in dispute that the police authorities

upon investigation have filed Charge Sheet (Ex.P4)

against both the rider of the motor cycle as well as the

driver of the bus. It is also to be noted that the

Claimants have examined PW.2 – an eye witness to

the accident and he has categorically stated in his

evidence that the bus was being driven in a rash and

negligent manner and the motor cycle was being

ridden cautiously at a minimum speed and when they

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reached near Jaichand Rice Mill, Sindhanur, the

vehicles which came from opposite direction and hit

each other causing the accident in question. Nothing

material is forthcoming from the cross-examination of

PW.2.

8.

The driver of the bus is examined as RW.1.

He has stated that the road was not properly

maintained and many humps, dumps and ditches were

found and any vehicle cannot move very easily and it

is very difficult to drive; when the two wheeler rider to

avoid the humps and dumps took sudden turn, he hit

against the slow moving bus; that the motor cycle was

being ridden in a rash and negligent man