ORIENTAL INSURANCE COMPANY LIMITED MYSORE NOW Vs. V.K. KUTTAN S/O. KUNHAPPAN, VELIYATH PARAMBIL HOUSE, MADAKKARA, NENMENI P.O., S. BATHERI TALUK, WAYANAD DISTRICT, PIN

JUDGEMENT

(1.) The above appeals are instituted against a common award passed by the Motor Accidents Claims Tribunal, Wayanad, Kalpetta. The Tribunal had passed the impugned common award in six claim petitions, which arose out of one and the same accident, which occurred on 23.01.2008 during night at about 12.45 at Mysore, exactly at Mysore-Banglore Ring Road Junction. The accident was a collision between one KSRTC bus bearing Reg.No.KL 15/4906 and a mini lorry bearing Reg.No. KA 09/8085. The appellant in 5 of the above appeals, except in M.A.C.A.No. 2890/2015, is the insurer of the mini lorry involved in the accident. In all the 5 appeals filed by the said insurance company, the challenge is mainly against the finding of the Tribunal fixing contributory negligence on the part of the driver of the mini lorry, to the extent of 70%. The insurance company is also challenging the quantum of compensation awarded in some of the cases. The appellant in M.A.C.A. No. 2890/2015 is the driver of the KSRTC bus, who is the claimant in O.P.(MV) No. 394/2008. The claimants in the other four cases were the passengers in the KSRTC bus, who sustained injuries. In M.A.C.A. No. 2890/2015, the appellant is challenging the finding of the Tribunal that there was contribution of negligence on his part to the extent of 30%. The appellant in that case is also seeking enhancement of the compensation awarded, contending that the amounts awarded under different heads are insufficient, inadequate and disproportionate.

(2.) We heard Sri. Mathews Jacob, learned senior counsel who appeared for the appellants in 5 of the appeals and for the 3rd respondent in M.A.C.A. No. 2890/2015. We also heard counsel appearing for the appellant in M.A.C.A. No. 2890/2015, who is the 1st respondent in M.A.C.A. No. 1204/2013, and also the counsel for the 1st respondent in M.A.C.A. Nos. 1311/2013 and 1224/2013.

(3.) The main dispute involved in all these appeals is with respect to the finding of the Tribunal on the aspect of negligence. It is revealed that the accident took place at a junction, which is the point of intersection of two roads, one being the National Highway leading from Mysore to Banglore and the other road intersecting at the junction is named as "KRS-Bannure Ring Road". The junction where the accident took place is named as Mysore-Banglore Ring Road Junction. With respect to the accident, the Police authorities at NR Traffic police station, Mysore had registered a case as Crime No. 25/2008, based on a report filed by an Assistant Sub Inspector of Police, who was on duty at that traffic junction at the relevant time. In the FIR itself, the driver of both the vehicles were cited as accused. Evidence is to the effect that, the Police after completing investigation of the case, had filed charge sheet against the drivers of both the vehicles (Ext.B1 series). From the discussions in the impugned award it is revealed that, the KSRTC bus was proceeding from south to north through the National Highway. The mini lorry came from east through the ring road hit on the bus which was proceeding from south to north. Learned senior counsel pointed out that, the oral evidence adduced before the Tribunal through examination of PW1 to 3 cannot be accepted, because their version that the mini lorry had hit on the right side of the KSRTC bus was proved to be not correct based on the fact that no damage was noted on the right side of the KSRTC bus, whereas the damages were only on the front portion of the bus. Therefore it was contended that the KSRTC bus had entered the junction only after the entry of the lorry into the main road. But the Tribunal noticed that, going by the Police records it is revealed that, after the accident both the vehicles had proceeded to the western direction after dashing on an electric post. The Tribunal found that the mini lorry was coming from east towards western direction. The movement of the vehicles to the western direction, after the collision, would indicate that the lorry came at a tremendous speed with high velocity, is the findings of the Tribunal. The Tribunal further found that, if the KSRTC bus was at a high speed it would have pushed the lorry towards northern direction, which was not happened. Based on analysis of the factual situation prevailing, the Tribunal found that, any vehicle which is entering into a junction at a road intersection has got an obligation to stop the vehicle at the junction in order to ascertain as to whether any other vehicle is coming from any of the roads, before proceeding further. Had the driver of the KSRTC bus stopped the vehicle before entry into the junction, the collision could have been avoided, is the finding. Tribunal had pointed out Rule 8 of the Rules of the Road Regulation, 1989 in support of the above finding. But at the same time, the Tribunal found that the KSRTC bus was proceeding through the NH, whereas the mini lorry was coming from a bye-pass road. It was found that the driver of the mini lorry, which entered the road intersection, ought to have given way to the vehicles proceeding along the NH, as per the mandate contained in Rule 9 of the above said Regulations. Therefore it was held that, the driver of the mini lorry was more rash and negligent in driving the lorry to the intersection of a major road, without caring for the ongoing traffic through the national highway. Thus, the Tribunal found that, even though there was negligence which can be attributed against the driver of the KSRTC bus, more rashness and negligence is on the part of the driver of the mini lorry. Hence fixed his contribution at 70%.