Karnataka High Court
Bangalore Metropolitan vs Sri Raju on 29 July, 2024
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NC: 2024:KHC:29795
MFA No. 12 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
MISCELLANEOUS FIRST APPEAL NO. 12 OF 2015 (MV-D)
BETWEEN:
BANGALORE METROPOLITAN
TRANSPORT CORPORATION,
CENTRAL OFFICE,
K.H. ROAD,
SHANTHINAGAR,
BANGALORE-560 027.
BY ITS MANAGING DIRECTOR.
...APPELLANT
(BY SRI. D. VIJAYAKUMAR., ADVOCATE)
AND:
1. SRI. RAJU,
S/O LATE VENKATAPPA,
AGED ABOUT 46 YEARS
Digitally signed by
PRAJWAL A
Location: HIGH COURT R/AT NO.337,1ST MAIN,
OF KARNATAKA 2ND CROSS, KAMALANAGAR,
BANGALOR-79.
2. SRI. VASUDEVAN
S/O KORU,
MAJOR,
C/O SANJEEV ENGINEERING WORKS,
KAMARANAGAR,
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NC: 2024:KHC:29795
MFA No. 12 of 2015
K.G. HALLI,
BANGALORE-560 015..
...RESPONDENTS
(BY SRI. SHRIPAD V SHASTRI, ADVOCATE)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 10.09.2014 PASSED IN MVC
NO.6113/2006 ON THE FILE OF THE XXII ADDITIONAL SMALL
CAUSE JUDGE, MEMBER, MACT, COURT OF SMALL CAUSES,
BENGALURU, AWARDING COMPENSATION OF Rs.3,88,500/-
WITH INTEREST AT 6 PERCENT P.A. FROM THE DATE OF
PETITION TILL DEPOSIT.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
ORAL JUDGMENT
1. In this appeal, BMTC has challenged the judgment and award dated 10.09.2014 passed in M.V.C.No.6113/2006 on the file of the XXII Additional Small Causes Judge and Member, MACT, Bengaluru ('the Tribunal' for short).
2. The appellant was the 1st respondent, 1st respondent was the 1st petitioner, 2nd respondent was the 2nd respondent before the Tribunal. For the sake of -3- NC: 2024:KHC:29795 MFA No. 12 of 2015 convenience, the rank of the parties shall be referred to as per their status before the Tribunal.
3. Brief facts of the case are, on 11.08.2006 at 8.30 p.m. one Munikrishna, the deceased, son of petitioner while riding the motor cycle bearing registration KA-04 ED-4387 as pillion rider at 5th Cross, Railway Bridge near M.D. Block, Malleshwaram, Bangalore, met with an accident involving B.M.T.C., Bus bearing Registration No.KA-01-F-391, sustained the injuries and succumbed to death. The petitioners filed a petition under Section 163A of the Motor Vehicles Act, along with the connected claim petition MVC No.6110/2006, came to be disposed of. BMTC has challenged the said judgments before this Court in MFA No.2477/2009 and MFA No.6621/2008. This Court as per order dated 31.01.2013 allowed the appeals and remanded the matter to the Tribunal for fresh consideration. After remand the BMTC has impleaded the owner of the motor cycle as 2nd respondent who remained ex-parte before the Tribunal.
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NC: 2024:KHC:29795 MFA No. 12 of 2015
4. Before the Tribunal the parties have led their evidence. On behalf of the petitioners, 1st petitioner is examined as PW.1 and marked 8 documents as per Exs.P1 to P8. On behalf of the respondents, one witness is examined as RW.1 on behalf of the BMTC and 4 documents came to be marked as per Exs.R.1 to R.4. By impugned judgment and award, the Tribunal awarded compensation of Rs.3,88,500/- with interest at 6% p.a. and fastened the liability against the BMTC as well as the owner of the motor cycle to pay the compensation jointly and severally. Aggrieved by the same BMTC has filed this appeal on various grounds.
5. Heard the arguments of Sri D. Vijayakumar, learned counsel for the petitioner and Sri Shripad V. Shastri, learned counsel for respondents 1 and 2.
6. Sri Vijayakumar, learned counsel for BMTC has contended that in MFA No.2477/2009 and MFA No.6621/2008, this Court has recorded a finding that -5- NC: 2024:KHC:29795 MFA No. 12 of 2015 there is negligence on the part of the rider of the motor cycle, while remanding the matter directed the petitioner to implead the owner of the motor cycle. Before the Tribunal, petitioner has not impleaded the owner of the motor cycle. The BMTC has impleaded the owner, but he remained ex-parte. The finding recorded by this Court about negligence on the part of the rider of the motor cycle is not challenged by the petitioner. When there is no negligence on the part of the BMTC, the Tribunal has erroneously fastened the joint liability along with the owner of the motor cycle. The petitioner is at liberty to recover the compensation from the owner of the motor cycle and not from the BMTC and sought for interference. Learned Counsel further submits that as per the order of this Court 50% of the compensation is already deposited by BMTC.
7. Per contra, counsel for the petitioner has contended that the claim is under Section 163A of the Motor Vehicles Act. The Tribunal has considered the judgment of this -6- NC: 2024:KHC:29795 MFA No. 12 of 2015 Court in MFA No.2477/2009 and MFA No.6621/2008 and fastened the joint liability against the owner of the Motor Cycle and the BMTC. BMTC cannot direct the petitioner to proceed against the owner of the motor cycle alone. Let the BMTC deposit the compensation, work out remedy to recover the same from the owner of the motor cycle by establishing complete negligence on the rider of the motor cycle.
8. I have given my anxious consideration to the arguments advanced by learned counsel for both the parties and perused the material on record.
9. There is no dispute as to the accident, cause of the accident, claim arising out of the said accident and entitlement of the petitioners as parents of the deceased Munikrishna. The claim is under Section 163A of the Motor Vehicles Act. Question of considering the negligence either on the part of the rider of the motor cycle or on the part of the driver of the BMTC bus does not -7- NC: 2024:KHC:29795 MFA No. 12 of 2015 arise. The finding recorded in MFA No.2477/2009 and MFA No.6621/2008 was in the absence of the owner of the motor cycle. Post remand, the owner of the motor cycle has been impleaded and the Tribunal has considered the case on merits. In the light of the observations made by this Court, the Tribunal has held the owner of the motor cycle as well as the BMTC are jointly and severally liable to pay the compensation to the petitioner.
10. I do not find error or illegality in the finding of the Tribunal, but the point that arises for consideration is :-
"Among the owner of the motor cycle and BMTC, who has to shoulder the responsibility and to what extent?"
The Tribunal did not point out the percentage of compensation that the BMTC has to pay and the owner of the motor cycle. Under such circumstances, both owner of the motor cycle and BMTC both will have to shoulder the responsibility and pay the compensation. In fastening the -8- NC: 2024:KHC:29795 MFA No. 12 of 2015 joint liability, the Tribunal has relied on the judgment of UNITED INDIA INSURANCE COMPANY LTD., Vs. SUNIL KUMAR AND ANOTHER. The Hon'ble Supreme Court is in Civil Appeal No.9694/2013 referring to Section 163A of the Motor Vehicles Act, 1988, held that claim is under no fault liability and there is no provision to prove the contributory negligence or wrongful act of the deceased and there is no provision for apportionment of liability among any one. In this background, the apportionment of the liability as addressed by the Tribunal is joint and several. Therefore, both the owner of the motor cycle and the BMTC has to equally shoulder the responsibility. The submission made by the learned counsel on behalf of the BMTC is not objected by the learned counsel for the petitioner. Hence, the appeal deserved to be allowed to that extent. In the result, the following :-
ORDER
(i) The appeal is allowed in part.
(ii) The impugned judgment and award is modified. -9-
NC: 2024:KHC:29795 MFA No. 12 of 2015
(iii) The owner of the motor cycle and BMTC both are equally liable to pay the compensation, whereas the petitioner is at liberty to recover 50% of the compensation from the owner of the motor cycle and BMTC shall deposit 50% of the compensation with accrued interest from the date of petition till deposit, within eight weeks from the date of receipt of certified copy of the judgment.
(iv) The amount in deposit including the statutory deposit shall be transmitted to the Tribunal for disbursement to the petitioner in terms of the order of the Tribunal.
SD/-
(T.G. SHIVASHANKARE GOWDA) JUDGE NG List No.: 1 Sl No.: 32