Karnataka High Court
The Managing Director vs Pabhakar on 23 August, 2018
Author: Krishna S Dixit
Bench: Krishna S.Dixit
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF AUGUST, 2018
BEFORE
THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT
MFA No. 7704/2015 C/W
MFA Crob. No. 92/2016 (MV)
C/W
MFA No. 7705/2015 C/W
MFA Crob. No. 91/2016 (MV)
In M.F.A.No. 7704/2015:
Between:
The Managing Director
KSRTC Division,
Central Office,
K.H.Road,
Shanthinagar,
Bengaluru - 560 027.
Rep. by its Chief Law Officer.
...Appellant
(By Sri. F.S. Dabali, Advocate)
And:
1. Prabhakar
S/o Late Ramappa,
Aged about 36 years
Native of:
Hemaralahalli Village & Post,
Sidlaghatta Taluk,
Chikkaballapura Dist - 562 105.
Presently R/at:
C/o Muniraju, No. 95,
2nd Floor, 1st Cross,
Nanjuppa Garden,
Babusab Palya,
2
Kalyanagar Post,
Bangalore - 560 043.
2. Michael, S/o Lazar,
Age - major,
No. KG-159
Situated at II Phase,
1st Stage, Hennur Bellary Road,
Layout, K.R.Puram,
Bangalore - 560 036
(R.C.Owner of the Mini Bus)
(Exparte)
3. The Manager
Iffco Tokio Gen. Inus. Co. Ltd.
Regional Office, No. 141,
Shanthi Tower, IV Main,
IV Cross, NGEF Layout
Kaustarabanagar,
Bangalore - 560 016.
(Insurer of the Mini Bus)
...Respondents
(By Sri. P. Suresh, Advocate for R1. Sri. E.I. Sanmathi,
Advocate for R3. Memo for paper publication in respect of
R2 accepted.)
This MFA is filed under Section 173(1) of MV Act
against the judgment and award dated 10.07.2015 passed
in MVC No. 959/2013 on the file of the Member, MACT,
Bangalore City, awarding compensation of Rs. 1,03,000/-
with interest @ 9% p.a. from the date of petition till the
date of payment.
In M.F.A. Crob. 92/2016
Between:
Prabhakar
S/o Late Ramappa,
Aged about 37 years
Native of:
Hemaralahalli Village & Post,
3
Sidlaghatta Taluk,
Chikkaballapura Dist - 562 105.
Presently R/at:
C/o Muniraju, No. 95,
2nd Floor, 1st Cross,
Nanjuppa Garden,
Babusab Palya,
Kalyanagar Post,
Bangalore - 560 043.
...Cross Objector
(By Sri. P. Suresh, Advocate Cross Objector.)
And:
1. The Managing Director
KSRTC Division,
Central Office,
K.H.Road,
Shanthinagara,
Bangalore - 560 027.
2. Michael, S/o Lazer,
No. KG-159
Situated at II Phase,
1st Stage, Hennur Bellary
Road Layout, K.R.Puram,
Bangalore - 560 036
(Owner of the Mini Bus)
3. Iffco Tokio General
Insurance Co. Ltd.
Regional Office, No. 141
Shanthi Tower, IV Main
IV Cross, NGEF Layout
Kasturbanagar,
Bangalore - 560 016.
(Insurer of the Mini Bus)
...Respondents
(By Sri. F.S. Dabali, Advocate for R1. Sri. B. Pradeep,
Advocate for R3.)
4
This MFA Crob. in MFA No. 7704/2015 is filed under
Order 41 Rule 22 of CPC against the judgment and award
dated 10.07.2015 passed in MVC NO. 959/2013 on the file
of the XVI Additional Judge, Member, MACT, Court of
Small Causes, Bangalore, partly allowing the claim petition
for compensation and seeking enhancement of
compensation.
In M.F.A.No. 7705/2015:
Between:
The Managing Director
KSRTC Division,
Central Office,
K.H.Road,
Shanthinagar,
Bengaluru - 560 027.
Rep. by its Chief Law Officer.
...Appellant
(By Sri. F.S. Dabali, Advocate)
And:
1. Naveen Kumar
S/o D.K. Venkateshappa,
Aged about 26 years,
Native of No. 48,
Devanahalli,
Sidlaghatta Taluk,
Chikkaballapura Dist - 562 105.
Presently R/at:
C/o Muniraju, No. 95,
2nd Floor, 1st Cross,
Nanjuppa Garden,
Babusab Palya,
Kalyanagar Post,
Bangalore - 560 043.
2. Michael, S/o Lazar,
Age - major,
5
No. KG-159
Situated at II Phase,
1st Stage, Hennur Bellary Road,
Layout, K.R.Puram,
Bangalore - 560 036
(R.C.Owner of the Mini Bus)
(Exparte)
3. The Manager
Iffco Tokio Gen. Inus. Co. Ltd.
Regional Office, No. 141
Shanthi Tower, IV Main
IV Cross, NGEF Layout
Kaustarabanagar
Bangalore - 560 016.
(Insurer of the Mini Bus)
...Respondents
(By Sri. P. Suresh, Advocate for R1. Sri. E.I. Sanmathi,
Advocate for R3. Service of Notice to R2 is held sufficient.)
This MFA is filed under Section 173(1) of MV Act
against the judgment and award dated 10.07.2015 passed
in MVC No. 958/2013 on the file of the MACT, Bengaluru,
awarding the compensation of Rs. 83,000/- with interest at
9% p.a. from the date of petition till the deposit.
In M.F.A. Crob. 91/2016
Between:
Naveen Kumar
S/o D.K. Venkateshappa,
Aged about 27 years,
Native of No. 48,
Devanahalli,
Sidlaghatta Taluk,
Chikkaballapura Dist.
Presently R/at:
C/o Muniraju, No. 95,
2nd Floor, 1st Cross,
6
Nanjuppa Garden,
Babusab Palya,
Kalyanagar Post,
Bangalore - 560 043.
...Cross Objector
(By Sri. P. Suresh, Advocate.)
And:
1. The Managing Director
KSRTC Division,
Central Office,
K.H.Road,
Shanthinagara,
Bangalore - 560 027.
2. Michael, S/o Lazer,
No. KG-159
Situated at II Phase,
1st Stage, Hennur Bellary
Road Layout, K.R.Puram,
Bangalore - 560 036
(Owner of the Mini Bus)
3. Iffco Tokio General
Insurance Co. Ltd.
Regional Office, No. 141
Shanthi Tower, IV Main
IV Cross, NGEF Layout
Kasturinagar,
Bangalore - 560 016.
(Insurer of the Mini Bus)
...Respondents
(By Sri. B. Pradeep, Advocate for R3.)
This MFA Crob. in MFA No. 7705/2015 is filed under
Order 41 Rule 22 of CPC against the judgment and award
dated 10.07.2015 passed in MVC NO. 958/2013 on the file
Member, MACT, 16th Additional Judge, Court of Small
7
Causes, Bengaluru, partly allowing the claim petition for
compensation and seeking enhancement of compensation.
These MFAs along with Cross Objections coming on
for admission, this day, the court delivered the following:
JUDGMENT
The appeal in MFA No.7704/2015 & MFA No.7705/2015 by the KSRTC and the Cross Objections in MFA Crob.No.92/2016 & 91/2016 respectively filed by the claimants challenge the judgment and awards dated 10.07.2015 made by the MACT, Bangalore, (SCCH-14) allowing the claims petitions in MVC No.959/2013 and 958/2013 respectively, whereby two sums of compensation i.e, Rs.1,03,000/- and Rs.83,000/- with interest @ 9% per annum have been awarded.
2. Brief facts of the case are: In a vehicular accident that happened on 03.12.2012 because of head-on collision between the mini Bus bearing Registration No.KA-13-B- 4545 and KSRTC Bus bearing Registration No.KA-07-F- 1440, these two claimants were grievously injured. Their claim petitions in MVC No.958 and 959/2013 respectively were resisted by the KSRTC and offending mini Bus by filing Written Statement.
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3. To prove their claim, the claimant Sri Naveen Kumar and other claimant Sri Prabhakar were examined as PWs.1 and 2, respectively; Dr.S.U.Shiva Prakash who had treated both these injured claimants was examined as PW.3. In their evidence 30 documents came to be marked as Exs.P1 to P30 which amongst others, comprised of the police papers and medical records. From the side of the respondents one Mr.S.V.Shivarajappa, the driver of the offending KSRTC Bus was examined as RW.1; another Mr.Gireesha, an official of the insurer of the offending mini Bus was examined as RW.2. In their evidence, four documents came to be marked as Exs.R1 to R4 which included a judgment copy in MVC No.646/2013 and 411/2013.
4. After adverting to the pleadings of the parties and after appreciating the evidentiary material on record, the MACT has made the judgment and awards that are in challenge by the KSRTC on the ground of liability and by the claimants, on the ground of inadequacy of the compensation.
5. Learned counsel for the KSRTC submits that it is a case of composite negligence, in as much as, the accident occurred because of the collision between the two vehicles; 9 a coordinate Bench of this Court in MFA No.7015/2015 disposed of on 26.03.2018 has apportioned the liability between the KSRTC and respondent insurer of the offending mini Bus in the ratio of 60:40 and therefore, the same ratio should be made applicable as between these two here also. The counsel for the respondent insurer of the mini Bus contends that the judgment of this court cannot operate as a resjudicata since the claimants herein were not the parties to the same. So stating, he has sought for dismissal of the appeals.
6. Learned counsel for the claimants pressing into service his cross objections submits that the compensation awarded is too much lower keeping in view the duration of the hospitalization and nature of interventional treatment. The same is opposed by the counsel for the KSRTC and also counsel for the insurer of the offending mini bus stating that what has been awarded is just and proper.
7. I have heard learned counsel for the KSRTC, learned counsel for the insurer of offending mini Bus and learned counsel for the claimants. I have perused the appeal papers and also the original papers from the LCR.
8. The contention of the claimants that the compensation has been awarded on a lower scale is 10 marginally substantiated looking to the facts and circumstances of the case as emerging from the evidentiary material on record. Therefore, in MFA No.7705/2015 a marginal enhancement is made by adding Rs.17,000/- to what has been awarded by the MACT. In MFA No.7704/2015 similarly the compensation has been enhanced from Rs.1,03,000/- to Rs.1,20,000/- in as much as, the duration of hospitalization was 21 days and there was surgical intervention too.
9. The contention of the learned counsel for the KSRTC that in view of judgment rendered by a coordinate Bench of this court on 26.03.2018 in MFA No.7015/2015, there has to be apportionment of liability between the appellant/KSRTC and the respondent insurer of the offending mini bus in the same ratio of 60:40, is sustainable. Similarly, the contention that the MACT could not have awarded 9% interest is sustained and therefore, the rate of interest has to be scaled down to 6% per annum.
10. In the above circumstances, the appeals filed by the KSRTC and the cross-objections filed by the claimants are partly allowed; the impugned judgment and award in MFA No.7704/2015 are modified enhancing the 11 compensation from Rs.1,03,000/- to Rs.1,20,000/-(Rupees one lakh twenty thousand only) with interest @ 6% p.a.; the impugned judgment and award in MFA No.7705/2015 are also modified enhancing the compensation from Rs.83,000/- to Rs.1,00,000/- (Rupees one lakh only).
11. In both these appeals the judgments and awards are modified apportioning the liability between the appellant/KSRTC and respondent/insurer of the mini bus in the ratio of 60:40; however, this apportionment shall not prejudice the right of the claimants to proceed against the KSRTC or the respondent/insurer of the offending mini bus or against both on the principle of joint and several liability.
12. The amount in deposit shall be transmitted to the jurisdictional MACT for being disbursed as compensation to the claimants forthwith.
13. It is made clear that the KSRTC in the event of its discharging the entire liability, shall be entitled to have contribution from the respondent/insurer of the offending mini Bus in view of apportionment of liability aforesaid by putting the judgment and award of this Court in execution.
14. It is also made clear that the respondent/insurer of the offending mini Bus bearing registration No.KA-13-B- 12 4545 shall be entitled to recover the compensation paid from the owner of the said vehicle on the principle of pay and recover. No opinion is expressed on the merits of the claim for such recovery.
Sd/-
JUDGE Dkb