Karnataka High Court
Bangalore Metropolitan vs Sri Raju on 29 July, 2024
-1-
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,
-2-
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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
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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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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
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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
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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
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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
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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.
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(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
