Bombay High Court
Senior Divisional Controller, ... vs Neeta W/O Ajay Hardas And 2 Others on 2 August, 2019
Author: M.G. Giratkar
Bench: M.G. Giratkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
FIRST APPEAL (FA) NO. 1202 OF 2016
Senior Divisional Controller,
NWKRTC, Belgaum Divisional
Office, Belgaum (Karnataka). ... APPELLANT
VERSUS
1. Keyur s/o Ajay Hardas,
aged 16 years (minor), Occupation
Student, through his Natural Guardian
Mother Smt. Neeta w/o Ajay Hardas,
R/o 498-A, "Ramayana", Professor
Colony, Hanuman Nagar, Nagpur.
2. The Managing Director,
M/s Vijayanand Road Lines Ltd.,
No.3, Ekkey Complex, Hubli, Distt.
Dharwad (Karnataka).
3. The Divisional Manager,
United India Insurance Company Ltd.,
Through its Divisional Officer,
Divisional Office at Enkay Complex,
Keshawapur, Hubli, Distt. Dharwad
(Karnataka). ... RESPONDENTS
....
Shri Ashutosh Wankhede, Advocate holding for Shri V.G. Wankhede,
Advocate for the appellant.
Respondent No.1 is served.
Shri S.B. Solat, Advocate for respondent No.2.
Shri K.V. Kotwal, Advocate for respondent No.3.
....
WITH
FIRST APPEAL (FA) NO. 1203 OF 2016
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Senior Divisional Controller,
NWKRTC, Belgaum Divisional
Office, Belgaum (Karnataka). ... APPELLANT
VERSUS
1. Dr. Ajay Nilkanth Hardas,
aged 50 years, Occupation - Medical
Practitioner, R/o 498-A, "Ramayana",
Professor Colony, Hanuman Nagar,
Nagpur.
2. The Managing Director,
M/s Vijayanand Road Lines Ltd.,
No.3, Ekkey Complex, Hubli, Distt.
Dharwad (Karnataka).
3. The Divisional Manager,
United India Insurance Company Ltd.,
Through its Divisional Officer,
Divisional Office at Enkay Complex,
Keshawapur, Hubli, Distt. Dharwad
(Karnataka). ... RESPONDENTS
....
Shri Ashutosh Wankhede, Advocate holding for Shri V.G. Wankhede,
Advocate for the appellant.
Respondent No.1 is served.
Shri S.B. Solat, Advocate for respondent No.2.
Shri K.V. Kotwal, Advocate for respondent No.3.
....
WITH
FIRST APPEAL (FA) NO. 1231 OF 2016
Senior Divisional Controller,
NWKRTC, Belgaum Divisional
Office, Belgaum (Karnataka). ... APPELLANT
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VERSUS
1. Neeta w/o Ajay Hardas,
aged 42 years, Occupation - Medical
Practitioner, R/o 498-A, "Ramayana",
Professor Colony, Hanuman Nagar,
Nagpur.
2. The Managing Director,
M/s Vijayanand Road Lines Ltd.,
No.3, Ekkey Complex, Hubli, Distt.
Dharwad (Karnataka).
3. The Divisional Manager,
United India Insurance Company Ltd.,
Through its Divisional Officer,
Divisional Office at Enkay Complex,
Keshawapur, Hubli, Distt. Dharwad
(Karnataka). ... RESPONDENTS
....
Shri Ashutosh Wankhede, Advocate holding for Shri V.G. Wankhede,
Advocate for the appellant.
Respondent No.1 is served.
Shri S.B. Solat, Advocate for respondent No.2.
Shri K.V. Kotwal, Advocate for respondent No.3.
....
CORAM : M.G. GIRATKAR, J.
DATED : 02ND AUGUST, 2019.
ORAL JUDGMENT :
All these appeals are arising out of the judgments and orders dated 05th May, 2012 passed by the learned Member, Motor ::: Uploaded on - 05/08/2019 ::: Downloaded on - 16/04/2020 02:49:16 ::: 4 fa1202.16 Accident Claims Tribunal-3, Nagpur in MACP Case Nos.1149 of 2005; 1150 of 2005; and 1156 of 2005 respectively filed by the family members (claimants/injured) for compensation in respect of their injuries sustained in the same accident. Hence, the present appeals are being decided by the common judgment.
2. All three injured/claimants were proceeding in the bus owned by the appellant. On the day of accident i.e. on 17.05.2004, all the injured/claimants were coming from Belgaum and proceeding towards Saundatti (Karnataka) in NWKRTC (North West Karnataka Road Transport Corporation) bus bearing No. KA-22/F-797 (appellant's bus) and when the said bus reached near village Aravalli, that time bus bearing No. KA-25/A-1732 came from opposite direction rashly and negligently in excessive speed and gave heavy dash to the bus of appellant i.e. bus No. KA-22/F-797 resulting into all the claimants/injured (family members) sustained grievous injuries. Other passengers also sustained injuries and four passengers were succumbed to the injuries in the said accident. Some passengers were from Maharashtra and some passengers were from Karnataka. ::: Uploaded on - 05/08/2019 ::: Downloaded on - 16/04/2020 02:49:16 :::
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3. The Claim Petitions were filed in the Court of Motor Accident Claims Tribunal at Nagpur, because all the claimants (related to each other) are the residents of Nagpur. Some of the injured/legal heirs of the deceased had also filed claim petitions in the State of Karnataka.
4. In the claim petitions filed by injured Dr. Ajay Hardas and others, the Tribunal has recorded its findings that the bus belonging to the appellant and also the bus owned by respondent No.2, insured by respondent No.3, are equally liable for the accident and, therefore, directed them to pay amount of compensation in the ratio of 50:50.
5. The appellant/NWKRTC, Belgaum has filed all these three appeals against the judgment of MACT, Nagpur contending that the driver of the bus belonging to the appellant did not drive the said bus rashly or negligently. There was no fault on the part of the bus driver of the appellant. Because of the rash and negligent driving of the driver of bus of respondent No.2, accident took place. Therefore, the appellant is not responsible to pay the amount of compensation. ::: Uploaded on - 05/08/2019 ::: Downloaded on - 16/04/2020 02:49:16 :::
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6. Heard Shri Ashutosh Wankhede, Advocate holding for Shri V.G. Wankhede, learned Counsel appearing on behalf of the appellant, Shri S.B. Solat, learned Counsel appearing on behalf of respondent No.2 and Shri K.V. Kotwal, learned Counsel appearing on behalf of respondent No.3.
7. Shri Wankhede, learned Counsel for the appellant has pointed out the FIR and spot panchnama in respect of the accident in question. He has further pointed out the judgment of High Court of Karnataka in M.F.A. No. 12572 of 2006 filed by the present appellant against respondent Nos.2 and 3 and others. He has submitted that the judgment of Karnataka High Court is in respect of the same accident in which all the claimants in these appeals were injured.
8. Shri Wankhede, learned Counsel has further submitted that the judgment and award dated 21.07.2006 passed in MVC No. 2093 of 2004 on the file of the Civil Judge, Senior Division and Member, Additional MACT, Hukkeri was challenged before the Karnataka High Court. Learned MACT, Hukkeri had held responsible both the buses for the accident and, therefore, both, owners and insurance company were ::: Uploaded on - 05/08/2019 ::: Downloaded on - 16/04/2020 02:49:16 ::: 7 fa1202.16 directed to pay 50:50 per cent amount of compensation. The Division Bench of Karnataka High Court, after verifying all the records and evidence, has come to the conclusion that the appellant is held responsible only because the said bus was involved. It is further held by the Karnataka High Court that the bus owned by respondent No.2 and insured by respondent No.3 was driven rashly and negligently and dashed to the bus of the appellant. Therefore, the judgment of MACT, Hukkeri came to be quashed and set aside and liability is fastened on respondent No.3/United India Insurance Company Limited.
9. Shri Wankhede, learned Counsel for the appellant has pointed out the evidence of all the injured, FIR and spot panchnama and submitted that the accident took place due to rash and negligent driving of the bus owned by respondent No.2 and insured by respondent No.3/United India Insurance Company Limited. Hence, in view of the judgment of Karnataka High Court, the appellant is not liable to pay amount of compensation.
10. Shri Solat, learned Counsel for respondent No.2 has pointed out the admission of one of the claimants Dr. Ajay Hardas and ::: Uploaded on - 05/08/2019 ::: Downloaded on - 16/04/2020 02:49:16 ::: 8 fa1202.16 submitted that as per his admission, there was head on collision between two vehicles and, therefore, both the vehicles are equally responsible. Hence, the judgment of MACT, Nagpur is perfectly legal and correct. Therefore, appeal is liable to be dismissed. In support of his submission, he has placed heavy reliance on the judgment of the Hon'ble Apex Court in the case of Administrator, Bihar SRTC .v. Ranjana Majhi and others (reported in 2006(6) SCC, 67).
11. Shri Kotwal, learned Counsel for respondent No.3/United India Insurance Company Limited has strongly supported the impugned judgment of the Tribunal. He has submitted that the accident took place because of the contributory negligence of the drivers of both the buses and, therefore, the Tribunal has rightly fixed the liability of 50:50 per cent between two offending vehicles. In support of his submission, he has also placed heavy reliance on the judgment of Hon'ble Apex Court in the case of Administrator, Bihar SRTC .v. Ranjana Majhi and others (cited supra). Learned Counsel has further submitted that respondent No.3 has not filed any appeal and, therefore, the judgment of MACT, Nagpur cannot be reversed.
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12. There is no dispute that all the claimants i.e. Dr. Ajay Hardas and his family members were travelling in the bus belonging to the appellant. They were travelling from Belgaum to Saundatti (Karnataka). There is also no dispute that along with the injured claimants, other passengers were also travelling in the bus belonging to the appellant. In the said accident, four passengers were died. Some of the claimants who were residing in Karnataka, filed their respective claims in the State of Karnataka. The legal heirs of Gopal Gadad namely Shobha Gopal Gadad and others had filed claim petition in respect of the same accident before the Member, Additional MACT, Hukkeri (Karnataka). The said MACT, Hukkeri recorded its findings that the bus belonging to the appellant and the bus belonging to respondent No.2 were equally responsible for the accident and, therefore, both were held liable to pay compensation 50:50.
13. The judgment of Hukkeri Court was challenged before the Karnataka High Court. The Division Bench of Karnataka High Court in MFA No. 12572 of 2006 verified all the records and evidence and come to the conclusion that the report was lodged by one of the injured namely Durgappa Basappa Mageri shows that the bus belonging to the ::: Uploaded on - 05/08/2019 ::: Downloaded on - 16/04/2020 02:49:16 ::: 10 fa1202.16 appellant was going in a slow speed. The bus belonging to respondent No.2 driven by its driver was in rash and negligent manner in a high speed and gave dash to the bus of the appellant. It is also observed that as per spot panchnama, there was ample space to pass the bus of respondent No.2 but because of the high speed, the driver could not control and gave dash to the bus of the appellant. It is further held by the Karnataka High Court that because of the bus of appellant involved in the accident, the appellant was held responsible even though there was no fault on the part of the bus driver belonging to the appellant. Therefore, Karnataka High Court has reversed the judgment of MACT, Hukkeri and fastened the liability on respondent No.2 (respondent No.3 in these appeals)/United India Insurance Company Limited.
14. The observation of the Karnataka High Court in paras 14 and 15 are reproduced below :-
"14. The claimants have produced Ex.P-6, the scene of offence/Panchanama in the case. The recitals in Ex.P- 6/scene of offence - Panchanama reveal that the road at the spot of accident i.e., the tar portion of the road has a width of 16'. The bus belonging to the Corporation was ::: Uploaded on - 05/08/2019 ::: Downloaded on - 16/04/2020 02:49:16 ::: 11 fa1202.16 proceeding from Bailhongal to Belavadi i.e., from north to south. The bus owner by the 1st respondent and insured with the 2nd respondent was proceeding from south to north i.e. from Belavadi to Bailhongal. Further, the recitals in the spot panchanama/Exh.P-6 reveal that the road to an extent of 13' had been left, to the right side of the Corporation bus in the direction in which it was proceeding. If 13' width road has been left to the right side of the Corporation bus, the bus owned by the 1 st respondent involved in the accident had sufficient space to pass on the said road, if it were to be on its left side. In view of the material on record, having regard to the recitals in the spot panchanama/Ex.P-6, applying the principles of res ipsa loquitor, it has to be held that the bus owned by the 1 st respondent and insured with the 2nd respondent has come to the off-side of the road and has dashed against the bus belonging to the Corporation.
Therefore, the contention of the 2nd respondent/ insurer that the accident has not taken place due to the fault of the driver of their bus cannot be upheld.
15. Apart from this, the 2nd respondent/insurer in their objection statement have not taken the contention that the accident has taken place on account of the fault of the driver of the KSRTC bus. Their specific contention ::: Uploaded on - 05/08/2019 ::: Downloaded on - 16/04/2020 02:49:16 ::: 12 fa1202.16 taken in the written statement is to the effect that the accident has not taken place due to the fault of the driver of the bus insured with them. In respect of the other contentions, they have said that the interest component be limited to only 6% per annum. Therefore, having regard to the contention that they have taken in their written statement and in the absence of any evidence to show that the accident has not taken place due to the fault of the driver of their bus, in view of the recital in Ex.P-6, it has to be held that the bus belonging to the 1 st respondent, insured with the 2nd respondent/insurer has gone to the off- side of the road and has dashed against the appellant/ Corporation bus. The Tribunal without appreciating the material on record, has come to the wrong conclusion in holding that the accident has taken place on account of the composite negligence of the drivers of both the buses and accordingly, it has erred in fixing the negligence at 50% each and the liability to pay compensation at the ratio of 50% each, which in our view, cannot be sustained. Therefore, from the material on record, as the accident has taken place solely on account of the fault of the driver of the bus insured with the 2nd respondent, the liability to pay compensation to the extent of 50% fastened on the appellant/Corporation cannot also be sustained. Accordingly, both the findings in respect of negligence and the liability to pay the compensation at the ratio of 50% ::: Uploaded on - 05/08/2019 ::: Downloaded on - 16/04/2020 02:49:16 ::: 13 fa1202.16 fastened on the appellant/Corporation is set aside."
15. The present appeals are in respect of the same accident in which the findings of Karnataka High Court are also recorded that it is not the bus of appellant but the bus of respondent No.2 was driven in rash, negligent and high speed and dashed to the bus of the appellant and, therefore, the appellant is exonerated from the liability to pay compensation.
16. Shri Kotwal, learned Counsel for respondent No.3/United India Insurance Company Limited and Shri Solat, learned Counsel for respondent No.2 are relying on the judgment of Hon'ble Apex Court in the case of Administrator, Bihar SRTC .v. Ranjana Majhi and others (cited supra). It is held by the Hon'ble Apex Court that, "the Claims Tribunal directed to pay awarded amount in equal shares. One of the said two parties filed appeal in respect of quantum but other not filed any appeal. In such circumstances, the High Court could not make out a new case and direct the appellant to pay the whole amount awarded."
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17. From the said judgment, it is clear that without any submission/evidence, the High Court in appeal, set aside the judgment of Tribunal and directed one of the parties to pay entire amount of compensation. In the present matters, above cited judgment of Karnataka High Court in respect of the same accident involving in these appeals, shows that it is the bus of respondent No.3 which was solely responsible for the accident. Therefore, cited judgment is not applicable to the case in hand.
18. Shri Solat, learned Counsel for respondent No.2 has placed reliance on the judgment of Hon'ble Apex Court in the case of Sri Krishna Vishweshwar Hede .v. The General Manager, KSRTC (reported in 2008(5) ALL MR, 446). Their Lordships have held that, "the accident took place between motor cycle and KSRTC bus and Tribunal holding that there was contributory negligence in the ratio of 50:50. High Court increasing liability of motor cycle driver to 75% and reduced liability of bus driver to 25%. It is further held that the judgment of Tribunal assessing liability at 50:50 was proper and High Court ought not to have interfered with it." In paragraph 4 of the judgment, Their Lordships have observed as under :- ::: Uploaded on - 05/08/2019 ::: Downloaded on - 16/04/2020 02:49:16 :::
15 fa1202.16 "4. We find that after detailed consideration of the evidence, the Tribunal held that both were liable and fixed the ratio of liability at 50% each. On the other hand, the High Court has modified the ratio by increasing the liability of appellant at 75% without much justification.
On the facts and circumstances, we are of the view that the judgment of the Tribunal assessing the ratio of liability at 50:50 is proper and the High Court ought not to have interfered with it."
19. In the present case, the FIR, spot panchnama and judgment of Karnataka High Court in respect of the same accident clearly show that the accident took place due to rash and negligent driving of the driver of bus of respondent No.2 and insured by respondent No.3. Shri Solat, learned Counsel for respondent No.2 has pointed out the admission of Dr. Ajay Hardas and submitted that as per his admission, accident took place because of the head on collision of two buses.
20. It is pertinent to note that no further clarification is brought on record in the cross-examination of this witness. Bare admission is not sufficient to prove that there was negligence on the part of both the ::: Uploaded on - 05/08/2019 ::: Downloaded on - 16/04/2020 02:49:16 ::: 16 fa1202.16 drivers. While reading the evidence, evidence as a whole is to be read. Examination-in-chief of Dr. Ajay Hardas shows that he was travelling in the bus owned by the appellant. When the bus reached near village Aravalli, their bus (appellant's bus) was going at slow speed. The bus of respondent No.2 came in high speed, rashly and negligently and gave dash to the bus of appellant and, therefore, accident took place. This particular evidence is not challenged. In the cross-examination of this witness, it is only brought on record that there was head on collision. The bus standing on the road without any movement and if the bus coming from opposite direction dashes to the stationery bus from the front side, which is head on collision, that does not mean that the stationery bus is equally responsible for the accident. Hence, the bare admission of Dr. Ajay Hardas is not helpful to the respondents. Cited decisions are on different footings.
21. It is clear from the judgment of Karnataka High Court in MFA No.12572 of 2006 and the material documents and evidence adduced by the claimants in all these appeals clearly show that the bus owned by respondent No.2 and insured by respondent No.3 was driving by its driver in rash and negligent manner and dashed to the ::: Uploaded on - 05/08/2019 ::: Downloaded on - 16/04/2020 02:49:16 ::: 17 fa1202.16 bus belonging to the appellant. Learned MACT, Nagpur has not verified the record properly and come to the wrong conclusion in fastening 50:50 per cent liability on the appellant and respondent Nos.2 and 3. The judgment of Karnataka High Court in above cited appeal is in respect of the same accident in which all the claimants in these appeals were injured, therefore, it is very much relevant to decide all these appeals together. Hence, respondent is liable to pay the amount of compensation.
22. In that view of the matter, First Appeal Nos.1202 of 2016; 1203 of 2016; and 1231 of 2016 are partly allowed. The judgments, dated 05.05.2012 passed in MACP Case Nos.1249 of 2005; 1250 of 2005; and 1256 of 2005 respectively by the learned Member, Motor Accident Claims Tribunal at Nagpur are hereby quashed and set aside in respect of the appellant/North West Karnataka Road Transport Corporation, Belgaum Division, Belgaum.
The Claim Petitions are dismissed against the appellant i.e. respondent No.3 in all the claim petitions. The entire liability to pay the compensation is saddled on respondent No.3 (respondent No.2 in ::: Uploaded on - 05/08/2019 ::: Downloaded on - 16/04/2020 02:49:16 ::: 18 fa1202.16 claim petition)/United India Insurance Company Limited.
The respondent No.3/United Indian Insurance Company Limited shall deposit the entire amount of compensation awarded to the injured/ claimants in all the appeals.
JUDGE *rrg.
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