IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE H.P. SANDESH M.F.A.No.3244/2012 (MV) BETWEEN:
THE SENIOR DIVISIONAL CONTROLLER, KSRTC RURAL DIVISION, MYSORE.
NOW BY THE MANAGING DIRECTOR, KSRTC, CENTRAL OFFICES, K.H. ROAD, SHANTHINAGAR, BENGALURU-560 027. REPRESENTED BY ITS CHIEF LAW OFFICER. … APPELLANT (BY SRI F.S. DABALI, ADVOCATE) AND:
1. SMT. LEELAVATHI, AGED 23 YEARS, W/O LATE N.K. GIRISH.
2. YOGASHREE, AGED 6 YEARS.
D/O LATE N.K. GIRISH.
MINOR AND REPRESENTED BY R1, THE MOTHER AND NATURAL GUARDIAN SMT. LEELAVATHI.
BOTH R/AT MOODALAKOPPALU VILLAGE, HALEBEEDU POST, BILIKERE HOBLI, HUNSUR TALUK, MYSURU DISTRICT-571 105.
3. ASLAM PASHA, S/O GHOUSE PEER, AGED MAJOR, R/AT DOOR No.1606, 6TH CROSS, 1ST STAGE, RAJEEV NAGAR, MYSURU-570 001.
4. THE MANAGER, THE ORIENTAL INSURANCE COMPANY LTD., No.618, CHAMARAJA DOUBLE ROAD, MYSORE-570 001.
5. UMADEVI, W/O LATE KUMARASWAMY, AGED 48 YEARS, R/AT NARAYANAPURA VILLAGE, KASABA HOBLI, K.R. NAGAR TALUK, MYSURU DISTRICT-571 602. ... RESPONDENTS (BY SMT. SUMA KEDILAYA, ADVOCATE FOR SRI V. PADMANABHA KEDILAYA, ADVOCATE FOR R-1, SRI Y.K. SHESHAGIRI RAO, ADVOCATE FOR R-4, R-2 IS MINOR AND REPRESENTED BY R-1, R-3 AND R-5 ARE SERVED) THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 24.8.2011 PASSED IN M.V.C.NO.354/2010 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT, HUNSUR, AWARDING A COMPENSATION OF RS.3,90,000/- WITH INTERST @ 6% P.A. FROM THE DTE OF PETITION TILL REALIZATION.
THIS M.F.A. COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This appeal is filed challenging the judgment and award dated 24.8.2011 passed in M.V.C.No.354/2010 on the file of the Fast Track Court, Hunsur, allowing the claim petition and granting compensation of Rs.3,90,000/- with interest at 6% per annum and directing the appellant/respondent No.1 to pay the said compensation.
2. The main contention of the appellant/respondent No.1 in this appeal is that the Tribunal has committed an error in fastening the liability on the appellant/respondent No.1 even though the criminal records including the complaint and the charge-sheet have been filed against the driver of the lorry. The Tribunal did not consider the matter in a right perspective and ignored both oral and documentary evidence in fastening the liability on the appellant/respondent No.1. The Tribunal has erred in presuming and in holding that the lorry driven by the deceased after over taking the parked lorry came to its left side, but driver of the bus instead of taking the bus towards its left side came towards wrong side probably on the ground that as per the sketch both the vehicles were found on the northern side of the road and in front of the parked lorry. Hence, the judgment and award of the Tribunal requires to be set aside in fastening the liability on the appellant/respondent No.1.
3. The learned counsel for the appellant reiterated the grounds urged in the appeal memorandum and contended that the Tribunal has committed an error in fastening the liability on the appellant/respondent No.1.
4. On the other hand, the learned counsel for the respondent No.4 would contend that the Tribunal has not committed any error in fastening the liability on the appellant/respondent No.1. He contends that the respondent No.4 Insurance Company is not liable to pay the compensation since the very claimant itself is a tortfeasor.
5. The said argument cannot be accepted since the Apex Court in the case of SHIVAJI AND ANOTHER v. DIVISIONAL MANAGER, UNITED INDIA INSURANCE CO. LTD. AND OTHERS passed in CIVIL APPEAL No.2816/2018, while considering the petition under Section 163A of the Act, referred to the judgment in the case of UNITED INDIA INSURANCE CO. LTD. v. SUNILKUMAR AND ANOTHER reported in AIR 2017 SC 5710, and held that the said contention cannot be accepted. Hence, I do not find any force in the contention of the learned counsel for the respondent No.4 that the Insurance Company is not liable to pay the compensation.
6. The learned counsel for the respondent Nos.1 and 2 – claimants would contend that this Court in M.F.A.No.11125/2011 c/w M.F.A.Nos.3243/2012 and 5228/2013 disposed of on 18.6.2015, set aside the judgment of the Tribunal and directed the Insurance Company to satisfy the award amount. The finding of the Tribunal that the KSRTC has to pay the amount has been set aside. Consequently, the Insurance Company has already satisfied the amount. Hence, the matter requires to be disposed of in terms of the decision of this Court passed in M.F.A.No.11125/2011 c/w M.F.A.Nos.3243/2012 and 5228/2013.
7. Having heard the arguments of the learned counsel for the appellant and the learned counsel for the respondent Nos.1 and 2 and the learned counsel for the respondent No.4, the points that arise for the consideration of this Court are:
(i) Whether the Tribunal has committed an error in fastening the liability on the appellant/respondent No.1 and whether it requires interference of this Court?
(ii) What order?
Point Nos.(i) and (ii):
8. The parties have not disputed the fact that there are several claimants on account of the particular accident. The injured persons and the legal heirs of the deceased have claimed the compensation in different M.V.C. cases. The Tribunal while considering the claims made by the injured as well as the legal heirs comes to the conclusion that there was negligence on the part of the driver of the KSRTC bus and fastened the liability on the KSRTC.
9. The learned counsel for the respondent No.4 also does not dispute that this Court has already disposed of the matter in M.F.A.No.11125/2011 c/w M.F.A.Nos.3243/2012 and 5228/2013, arising out of the same accident. When this Court has already considered the matter on merits and disposed of other cases holding that negligence is on the part of the driver of the lorry and fastened the liability on the Insurance Company, the very finding of the Trial Court passed in M.V.C.No.354/2010 requires to be set aside. The fastening of the liability on the KSRTC has to be set aside since in M.F.A.No.11125/2011 c/w M.F.A.Nos.3243/2012 and 5228/2013 arising out of the same accident, the same has been set aside. In view of the said judgments, this appeal is allowed.
10. In view of the discussions made above, I pass the following:
ORDER (i) The appeal is allowed.
(ii) The impugned judgment and award of the Tribunal fastening the liability on the appellant/respondent No.1 is hereby set aside.
(iii) The respondent No.4 is directed to pay the compensation amount.
(iv) The amount in deposit, if any, before this Court and also before the Tribunal has to be refunded to the appellant.
Sd/- JUDGE MD