Karnataka High Court
The Managing Director vs Smt Lavanya on 25 October, 2018
Author: Krishna S Dixit
Bench: Krishna S.Dixit
1
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 25TH DAY OF OCTOBER, 2018
BEFORE
THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT
M.F.A. NO.5156/2011 (MV)
C/W
M.F.A. NO.6775/2011 (MV)
IN M.F.A.NO.5156/2011 (MV)
BETWEEN:
The Managing Director,
KSRTC,
Shantinagar,
K.H.Road,
Bengaluru.
Represented by its
Chief Law Officer. ... Appellant
(BY Sri. F.S.Dabali, Advocate)
AND:
1. Smt. Lavanya,
W/o. Late Shri Vasudevamurthy,
aged about 28 years.
2. Master Jnenesh
S/o. Late Shri Vasudevamurthy,
aged about 4 years,
Since minor represented by
m/g and mother the
Respondent No.1.
3. Smt. Susheelamma
W/o. Vasudevaiah,
Aged about 62 years,
2
The Respondent Nos.1 to 3 are r/at
P/R Upparahosahalli Village,
Shanthigrama Hobli,
Hassan Taluk and District,
Now R/at Bengaluru,
No.6/2, Inpay Thope C. Beedhi,
Halsoor, Bengaluru - 560 008.
4. The Manager,
The National Insurance
Company Limited,
Regional Office,
No.144, Subrama Complex,
M.G.Road,
Bengaluru - 560 001.
5. K.H. Ravikumar
S/o. K.R.H.Swamy,
Owner of the motor cycle bearing
No.KA-02-HA-2987,
#200, 2nd Main,
Mahalakshmi Layout,
Bengaluru-560 086.
6. The Regional Manager,
M/s. National Insurance Company Ltd.,
No.114, Subharan Complex,
M.G.Road,
Bengaluru-560 001. ... Respondents
(By Sri. K.N.Suresh, Advocate for R-1 to R-3;
R-2 minor represented by R-1;
Sri. B.A.Ramakrishna, Advocate for R-4;
Sri. A.N. Krishnaswamy, Advocate for R-6)
This M.F.A. is filed under Section 173(1) of MV Act
against the judgment and award dated 22/01/2011
passed in MVC No.254/2009 on the file of the XII
Additional Small Causes Judge, Member MACT,
Bengaluru, awarding a compensation of Rs.6,70,000/-
with interest @ 6% p.a. from the date of petition till
realization.
3
IN M.F.A.NO.6775/2011 (MV)
BETWEEN:
Regional Manager,
National Insurance Company Ltd.,
Regional Office,
Subharam Complex, 144,
M.G.Road,
Bengaluru - 560 001. ... Appellant
(BY Sri. A.N.Krishnaswamy, Advocate)
AND:
1. Smt. Lavanya
W/o. Late Vasudevamurthy,
Now aged about 28 years.
2. Master Jnenesh
S/o. Late Vasudevamurthy,
Now aged about 4 years,
Represented by his natural guardian
Mother the 1st respondent herein.
3. Smt. Susheelamma
W/o. Vasudevaiah,
Now aged about 62 years,
All P/R of Upparahosahalli Village,
Shanthigrama Hobli,
Hassan Taluk and District,
Now R/at No.6/2,
Inpay Thope C. Beedhi,
Halsoor, Bengaluru - 560 038.
4. The Managing Director,
KSRTC, Shanthinagar,
K.H.Road,
Bengaluru - 560 027. ... Respondents
(By Sri. F.S.Dabali, Advocate for R-4;
R1 & R-3 served;
R-2 minor represented by R-1)
4
This M.F.A. is filed under Section 173(1) of MV Act
against the judgment and award dated 22/01/2011
passed in M.V.C. No.254/2009 on the file of the XII
Additional Small Causes Judge, Member MACT,
Bengaluru, awarding a compensation of Rs.6,70,000/-
with interest @ 6% p.a. from the date of petition till
realization.
These appeals coming on for Admission this day,
the Court delivered the following:-
JUDGMENT
The appeal in M.F.A.No.6775/2011 by the insurer and the appeal in M.F.A. No.5156/2011 by the owner of the offending vehicle i.e., KSRTC call in question the judgment and award dated 22.01.2011 made by the MACT, Bengaluru, allowing the claim petition in M.V.C.No.254/2009, whereby a compensation of `6,70,000/- with interest at the rate of 6% per annum, subject to a usual condition of bank deposit, has been awarded. The challenge by the insurer is on the ground of liability and challenge by the KSRTC is on the ground of quantum.
2. The brief fact matrix of the case is: On 22/11/2008 at around 6.30 p.m., one Mr. Aravind 5 Kumar was riding his motor bike bearing Registration No.KA-02-HA-2987 with the pillion rider, Vasudevamurthy; the offending KSRTC bus bearing Registration No.KA-13-F-1697, coming from the opposite direction driven rashly and negligently caused a head-on collision with the said bike resulting in fatal injuries, to the unfortunate victims who later breathed their last.
3. The legal representatives of deceased Sri.Vasudevmurthy had filed the claim petition in M.V.C.No.254/2009 seeking compensation and the claim was resisted by both the insurer and the KSRTC by filing independent Written Statements.
4. To prove the claim, the widow of the deceased Smt. Lavanya was examined as PW-1 and one Shri. Nagaraj who was in co-employment with the deceased was examined as PW-2. In their evidence, fourteen documents came to be marked as per Exhibits P-1 to P-14 which inter-alia comprised of Police Papers, IMV Report, Ration Card and Salary 6 Certificate of the deceased. From the side of KSRTC one Shri. Sonappa, the driver of the offending bus was examined as RW-1. In his evidence, four documents came to be marked as per Exhibits R-1 to R-4 which inter-alia comprised of a copy of driving licence and insurance policy.
5. The MACT, after looking to the pleadings of the parties and after appreciating the evidence on record, has entered the impugned judgment and award, that are put in challenge by both the insurer and by the insured.
6. The learned Senior panel counsel for the KSRTC finds fault with the impugned judgment and award because:-
(a) the MACT could not have awarded the compensation in the absence of proper and necessary parties namely the owner of the bike and his insurer;7
(b) the apportionment of contributory negligence made in M.V.C. No.1112/2009 ought to have been made in this case too, since the incident is the same.
7. The learned senior panel counsel for the insurer submits that the driving licence of the driver of the KSRTC bus had expired on 03/12/2006 and that, renewal was done only on 26/11/2008; as on the date of the accident i.e., 22/11/2008, there was no valid and effective driving licence and therefore, the insurer could not have been made liable.
8. The learned counsel for the claimants submits that irrespective of a driving licence, the right that has vested by virtue of the award, in the claimants cannot be disturbed at all vide decision of the Apex Court in the case of PAPPU AND OTHERS Vs. VINOD KUMAR LAMBA AND ANOTHER AIR 2018 SC 592; the question of contributory negligence or composite negligence does not avail so far as the claim of the legal representatives of pillion rider is 8 concerned vide judgment of the Apex Court in the case of Union of India V/s. United India Insurance Company Limited reported in AIR 1998 Supreme Court 640.
9. I have heard learned panel counsel for the insurer and learned panel counsel for the KSRTC; I have also heard the learned counsel for the claimants. I have perused the appeal papers and also the decisions cited at the Bar.
10. The contention of the insurer that the liability can be fastened on the insurer only when there is valid and effective driving licence, gains qualified acceptance qua the claimants as held by the Apex Court in the case of Pappu and others (Supra). However, the liability of the insurer in the absence of valid and effective driving licence is on the principle of 'Pay and Recover'.
11. The contention of the KSRTC that the driving licence had expired on 03/12/2006 but the 9 same having been renewed on 26/11/2008, it is not a case of absence of licence. It is a big difficult to accept in the absence of the material particulars as to when the renewal was sought for. The other contention as to the plea of the contributory/composite negligence is concerned, the same does not avail for the KSRTC, in view of the decision of the Apex Court in the case of Union of India V/s. United India Insurance Company Limited (Supra). At para-8 of the said decision, it is stated as under
"8. There is a well-known principle in the law of torts, called the 'doctrine of identification or 'imputation'. It is to the effect that the defendant can plead the contributory negligence of the plaintiff or of an employee of the plaintiff where the employee is acting in the course of employment. But, it has been also held in Mills v. Armstrong, (1988) 13 AC 1 (HL) (also called The Bernina case) that that principle is not applicable to a passenger in a vehicle in the sense that the negligence of the driver of the vehicle in which the passenger is 10 travelling, cannot be imputed to the passenger. (Halsbury's Laws of England 4th Ed., 1984 Vol. 34, page 74) (Ratanlal and Dhirajlal, Law of Torts (23rd Ed. 1997 p.511)) (Ramaswamy Iyer, Law of Torts, 7th Ed., p.447). The Bernina case in which this principle was laid in 1888 related to passengers in a steamship. In that case a member of the crew and a passenger in the ship Bushire were drowned on account of its collision with another ship Bernina. It was held that even if the navigators of the ship Bushire were negligent, the 'navigators' negligence could not be imputed to the deceased who were travelling in that ship. This principle has been applied, in latter cases, to passengers travelling in a motor- vehicle whose driver is found guilty of contributory negligence. In other words, the principle of contributory negligence is confined to the actual negligence of the plaintiff or of his agents. There is no rule that the driver of an omnibus or a coach or a cab or the engine driver of a train, or the captain of a ship on the one hand and the passengers on the other hand are to be 'identified' so as to fasten the latter with 11 any liability for the former's contributory negligence. There cannot be a fiction of the passenger sharing a 'right of control' of the operation of the vehicle nor is there a fiction that the driver is an agent of the passenger'. A passenger is not treated as a backseat driver. (Prosser and Keeton on Torts, 5th Ed., 1984 p. 521-522). It is therefore clear that even if the driver of the passenger vehicle was negligent, the Railways, if its negligence was otherwise proved-could not plead contributory negligence on the part of the passengers of the vehicle. What is clear is that qua the passengers of the bus who were innocent, the driver and owner of the bus and, if proved, the railways-can all be joint tort-feasors. "
12. The counsel of the KSRTC contends that it is an eminent case of composite negligence, wherein the owner of the bike and bike's insurer were necessary parties and therefore, now an application is made seeking their impleadment and consequently, matter needs to be remanded for consideration afresh so for as the issue of composite negligence is 12 concerned. He banks upon the decision of this Court in the case of Ganesh V/s. Syed Munned Ahamed and others reported in ACJ 2000(2) 1463 in support of his contention. The three Judge Bench of this Court in the said case at para-70, page 1499 has observed as:-
"Further, since section 110-F of the Act takes away the jurisdiction of the civil court to entertain any question relating to any claim for compensation, which may be adjudicated upon by the Claims Tribunal, once the liability of the joint tort-feasors is fixed proportionate to the extent of negligence caused by each of the joint tortfeasors, it is open to the joint tortfeasor, who satisfies the award when their liability is made joint and several to proceed against the other joint tortfeasors to recover the balance amount in terms of the award passed in the same proceedings. It is open to the Tribunal, while passing the award, to make the said position clear when both the joint tortfeasors are made as parties to the proceedings. In cases where both the joint tortfeasors are not made as parties to the proceedings, such of the joint tortfeasor, i.e., 13 driver, owner and insurer of the vehicle, who satisfies the award, can continue the same proceedings by impleading the driver, owner and insurer of the other vehicle, which has caused the accident on account of the negligence of the driver of the said vehicle. This procedure, in my view, is permissible in proper understanding of section 110-F of the Act, and it would also subserve the very object of Chapter VIII of the Act which intends to give expeditious and effective relief to the victims of the motor accidents or the legal representatives of the persons who are killed in such accidents."
Therefore, the issue of composite negligence needs to be remanded to the MACT for consideration afresh after affording opportunity to both the sides concerned.
In the above circumstances, these appeals are disposed off; the important judgment and award are retained as they are; it is open to the insurer to put this judgment in execution seeking contribution/recovery from the KSRTC vide decision 14 of the Apex Court in the case of National Insurance Company Limited Vs. Challa Upendra Rao & Others reported in (2004) 8 SCC 517.
However, it is open to the KSRTC to resist the execution by placing cogent evidence on record to show that its driver had a valid and effective driving licence as on the date of accident.
So far as the issue of composite negligence is concerned, the matter is remanded to the MACT for re-consideration afresh, after affording opportunity to the owner of offending motor cycle and its insurer, if any.
The amount in deposit shall be transmitted to the jurisdictional MACT for being disbursed as compensation to the claimants, forthwith.
Sd/-
JUDGE KG