Karnataka High Court
Bangalore Metropolitan Transport vs Munner Begum on 28 May, 2024
Author: Jyoti Mulimani
Bench: Jyoti Mulimani
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NC: 2024:KHC:17754
MFA No. 657 of 2015
C/W MFA No. 1404 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
MISCELLANEOUS FIRST APPEAL NO. 657 OF 2015 (MV-D)
C/W
MISCELLANEOUS FIRST APPEAL NO. 1404 OF 2015
IN MFA NO. 657 OF 2015
BETWEEN:
BANGALORE METROPOLITAN
TRANSPORT CORPORATION,
K.H.ROAD, BANGALORE,
BY ITS MANAGING DIRECTOR,
REPRESENTED BY ITS CHIEF LAW OFFICER.
...APPELLANT
(BY SMT. H.R.RENUKA., ADVOCATE)
AND:
1. MUNNER BEGUM
W/O SHAIK ANWAR HUSSAIN,
Digitally signed by
AGED ABOUT 52 YEARS,
THEJASKUMAR N
Location: High 2. SHAIK ANWAR HUSSAIN
Court of
Karnataka S/O LATE PEERAN SAHEB,
AGED ABOUT 60 YEARS,
R/O #15/80/2, DASTAGIRAPETA,
ZINNA ROAD, PRODDATUR TOWN,
KADAPA-516 360.
ANDRAPRADESH STATE,
ALSO AT C/O REDDY NO.83/1,
2ND MAIN, GANGANAGAR,
BANGALORE-560 062.
KARNATAKA STATE.
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MFA No. 657 of 2015
C/W MFA No. 1404 of 2015
3. M/S. GANESH TRAVELS
PROPRIETOR, ADULT,
NO.9, PAMPAMAHAKAVI,
SHANKARAPURAM,
BANGALORE-560 004.
(OWNER OF CAR BEARING NO.KA 01 D 8227)
4. THE ORIENTAL INSURANCE COMPANY LTD.,
OFFICE AT NO.19/1, I FLOOR,
III CROSS, CHIKKANNA GARDEN,
SHANKARAPURAM,
BANGALORE-560 004.
...RESPONDENTS
(BY SRI. BRIJESH CHANDER GURU., ADVOCATE FOR C/R1;
SRI. R.GUNASHEKAR., ADVOCATE FOR R4;
R2 AND R3-SERVED AND UNREPRESENTED)
IN MFA NO. 1404 OF 2015
,
BETWEEN:
THE ORIENTAL INSURANCE CO. LTD.,
NO.19/1, 1ST FLOOR, III CROSS,
CHIKKANNA GARDEN,
SHANKARPURAM,
BANGALORE-560 004.
REPRESENTED BY ITS AUTHORIZED OFFICER,
REGIONAL OFFICE, NO.44/45,
LEO COMPLEX, RESIDENCY ROAD,
BANGALORE-560 025.
...APPELLANT
(BY SRI. R.GUNASHEKAR., ADVOCATE)
AND:
1. MRS. MUNEER BEGUM
W/O MR. SHAIK ANWAR HUSSAIN,
AGED ABOUT 53 YEARS,
2. MR. SHAIK AWAR HUSSAIN
S/O LATE PEERAN SAHIB,
AGED ABOU 60 YEARS,
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MFA No. 657 of 2015
C/W MFA No. 1404 of 2015
BOTH ARE RESIDING AT NO.15/80/2,
DASTAGIRIPETA, ZINNA ROAD,
PRODDATUR TOWN, KADAPA-516 360.
ANDHRA PRADESH STATE
(LR'S OF DECEASED S.AMEENA)
ALSO C/O REDDY, NO.83/1, II MAIN,
GANGA NAGAR, BANGALORE-560 062.
KARNATAKA STATE.
3. M/S. GANESH TRAVELS
PROP. SHANKAR.K,
NO.9, PAMPA MAHAKAVI ROAD,
SHANKARAPURAM, BANGALORE-560 004.
(RC OWNER OF CAR BEARING
REGN.NO.KA-01/D.8227).
4. THE MANAGING DIRECTOR,
B.M.T.C, K.H.ROAD,
BENGALURU-560 027.
(OWNER AND INSURER OF
BUS BEARING REGN.NO.KA.01/F.8707).
...RESPONDENTS
(BY SRI. BRIJESH CHANDER GURU., ADVOCATE FOR
SRI. H.N.VASANTH KUMAR., ADVOCATE FOR R1;
R2-SERVED AND UNREPRESENTED;
NOTICE TO R3-DISPENSED WITH V/O DATED: 20.03.2015;
SMT. H.R.RENUKA., ADVOCATE FOR R4;)
THESE MISCELLANEOUS FIRST APPEALS ARE FILED
UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988,
AGAINST THE JUDGMENT AND AWARD DATED:26.09.2014
PASSED IN MVC NO.1639/2013 ON THE FILE OF THE MEMBER,
PRINCIPAL MACT, BANGALORE.
THESE MISCELLANEOUS FIRST APPEALS ARE COMING ON
FOR DICTATING JUDGMENT, THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
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MFA No. 657 of 2015
C/W MFA No. 1404 of 2015
JUDGMENT
"Walk with care and with all sense. Never assume
that the driver has seen you when you are about to cross
the road, it is your responsibility to save yourself."
Smt.H.R.Renuka., learned counsel for the appellant,
Sri.Brijesh Chander Guru., learned counsel for respondent
No.1, and Sri.R.Gunashekar., learned counsel for respondent
No.4 have appeared in person.
Notice to the respondents was ordered on 10.04.2015. A
perusal of the office note depicts that respondents 2 and 3 are
served and unrepresented. They have neither engaged the
services of an advocate nor conducted the case as a party in
person.
Sri.R.Gunashekar., learned counsel for the appellant,
Sri.Brijesh Chander Guru., learned counsel on behalf of
Sri.H.N.Vasanth Kumar., for respondent No.1 and
Smt.H.R.Renuka., learned counsel for respondent No.4 have
appeared in person.
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Notice to the respondents was ordered on 20.03.2015. A
perusal of the office note depicts that respondent No.2 is
served and unrepresented. He has neither engaged the services
of an advocate nor conducted the case as a party in person.
2. For the sake of convenience, the parties are
referred to as per their status and rankings before the Tribunal.
3. The brief facts are these:
The claimants are the parents of the deceased S.Ameena.
They contended that on the Second day of December 2012 at
about 6:30 a.m., S.Ameena was crossing the Hebbal Main Road
on her way to the office. She was crossing the road from East
to West slowly and cautiously near CBI Flyover, Ganganagar,
Bengaluru. It is contended that, Avinash.H.C S/o Chandrappa
the driver of the Mahindra Xylo Car bearing Registration
No.KA-01-D-8227 came in a rash and negligent manner and hit
her, as a result, she fell, and at that time, a BMTC Bus bearing
Registration No.KA-01-F-8707 ran over her head and she died
on the spot. The claimants filed a claim Petition seeking
compensation.
In response to the notice, the respondents appeared
through their respective counsel and filed separate statements
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of objections denying the petition averments. They specifically
denied the negligence on the part of the drivers. Among other
grounds, they prayed for the dismissal of the Claim Petition.
Based on the above pleadings, the Tribunal framed
issues, parties led evidence, and marked the documents. The
Tribunal vide Judgment dated 26.09.2014 partly allowed the
Claim Petition. The Tribunal concluded that the deceased
contributed 25% of negligence, the driver of Mahindra Xylo Car
contributed 25% of negligence and the driver of the BMTC bus
attributed 50% of negligence to the accident. The Tribunal
directed the Insurance Company and BMTC to pay the
compensation amount. The BMTC and the Insurance Company
of the Car have assailed the Judgment of the Tribunal in these
appeals on several grounds as set out in the Memorandum of
Appeals.
4. Learned counsel for the respective parties has
urged several contentions.
Smt.H.R.Renuka., learned counsel for the Corporation in
presenting her arguments contended that the deceased was
crossing the road on a flyover. She argued by saying that a
flyover is not meant for pedestrians to cross the road; the
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accident happened on a flyover, where there was no occasion
to control the speed of the vehicles. She therefore, submits
that the Tribunal has erred in fastening liability to the extent of
50% on the part of the driver of the BMTC bus. Counsel
therefore, submits that fastening the liability on the Insurance
Company may be exonerated and an appropriate order may be
passed.
Sri.Gunashekar.R., learned counsel for the Insurance
Company contended that the Tribunal has erred in fastening
the liability on the Insurance Company to the extent of 25%.
He argued by saying that the deceased S.Ameena was crossing
the road on a flyover. He submits that there is no negligence on
the part of the driver of the Mahindra Xylo Car. Counsel
therefore, submits that fastening the liability on the Insurance
Company may be exonerated and an appropriate order may be
passed.
By way of reply to this contention, learned counsel
Sri.Brijesh Chander Guru. submits that the deceased was
constrained to walk and cross the road on a flyover since the
subways are not safe for women folk. Counsel therefore,
submits that an appropriate order may be passed.
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Heard, the contentions urged on behalf of the respective
parties and perused the appeal papers and the records with
utmost care.
5. The questions that would arise for my consideration
are:
1. Whether the drivers are negligent.
2. Whether the Drivers of both the vehicles are
liable to an action for compensation.
3. Whether the claimants are entitled to the
compensation.
6. The facts are sufficiently stated and do not require
reiteration. This is a classic case of the unsafe crossing
behavior of a pedestrian. The issue revolves around the alleged
negligent act of the drivers and the negligent behavior of a
pedestrian.
Before I answer the contentions, it is relevant to
understand the meaning of negligence. In Halsbury's Laws of
England Third Edition (28), the meaning of Negligence is
defined as under:
Negligence is a specific tort and in any given
circumstance is the failure to exercise that care
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which the circumstances demand. What amounts to
negligence depends on the facts of each particular
case and the categories of negligence are never
closed. It may consist in omitting to do something
which ought to be done or in doing something which
ought to be done either in a different manner or not
at all.
The claimants contended that the accident happened on
the second day of December 2012. The deceased was crossing
the road by using the open road on a Hebbal flyover in
Bengaluru.
On 02.12.2012 one M.Syed Nazeer Ahmed, P.C.No.8435,
R.T.Nagar Traffic Police Station, Bengaluru submitted a report.
In his report, he states that the deceased was crossing the road
on a CBI flyover from east to west.
Sri.Shaik Anwar Hussain - the father of deceased
S.Ameena was examined as PW1. In the chief examination, he
states as under:
"I submit that, on 02.02.2012, at around
06.30 A.M. when the deceased Ameena was
crossing Hebbal Main Road on her way to Office, she
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was crossing from east to west slowly and
cautiously, near C.B.I Fly over, Ganga Nagar,
Bangalore, (as there was no light or proper security
in the under passage, as it is early in the morning
hence inevitably she had to cross the road by using
the open road on flyover)."
In the cross-examination, he states that underneath the
flyover there is an underpass (subway), and it is meant for the
public to cross the road.
7. It is alleged by the claimants that their daughter
died in the accident due to the negligent act of the drivers of
both vehicles. I should observe that a perusal of the entire
records reveals that the deceased was crossing the open road
on a flyover as a pedestrian. I propose to say a few words
about pedestrians and a flyover. A pedestrian is a person who
travels on foot whether walking or running. It is a common
sense that pedestrians are not allowed to walk and cross a road
on a flyover. Flyover is not meant for pedestrians to cross the
road. The purpose of building a flyover is to allow the main
traffic to continue moving uninterrupted. Pedestrian crossing
formally means a marked path where people can safely walk
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across a street or a road. In the present case, the accident
happened at a place on a flyover, where there was no occasion
to control the speed of the vehicles. There was no marked path
to cross a road. Hence, a degree of care was required to be
taken by the deceased since she encountered the risk of
crossing an open road on a flyover. There is a lack of
foreseeability on the part of the deceased.
8. The deceased crossed the road by using the open
busy road on a flyover and ignored the subway which is meant
for pedestrians only. On behalf of the claimants, it has been
suggested that the subway was not safe for women folk, hence
the deceased was constrained to walk and cross a road on a
flyover. This contention cannot be accepted. The deceased
ventured to navigate around speedy vehicles on a signal-free
road instead of using the subway. I may venture to say that the
deceased was never taught about civic sense and basic safety
procedures. The drivers of both vehicles were driving the
vehicles on a flyover and as already noted above, the flyovers
are built to allow the main traffic to continue moving
uninterrupted. Therefore, there is no negligence on the part of
the drivers and hence, the Tribunal is not justified in fastening
the liability on the drivers. The deceased was negligent. It is an
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unfortunate result from the claimant's point of view, and it is
undoubtedly hard that this case fails on this ground. Therefore,
the claimants are not entitled to any compensation.
To conclude, I can say only this much that the Traffic
rules are in place to help and protect citizens. Obeying traffic
rules and using common sense are essential. Citizens may have
a good road sense, but they should have the ability to drive or
walk carefully through traffic.
In my view, the claim petition should be dismissed.
Accordingly, it is dismissed. The Judgment and the award dated
26.09.2014 passed by the Member Prl. MACT, Bangalore
(SCCH-1) in MVC No.1639/2013 is set-aside.
9. Resultantly, the Miscellaneous First Appeals are
allowed.
The Registry concerned is directed to refund/ release the
amount in deposit, if any in favor of the Corporation and the
Insurance Company after due identification.
Sd/-
JUDGE
TKN/MRP
