Karnataka High Court
The Managing Director vs Shivappa S/O Bankappa Barigidad on 30 October, 2012
Author: S.N.Satyanarayana
Bench: S. N. Satyanarayana
1
®
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 30TH DAY OF OCTOBER 2012
BEFORE
THE HON'BLE MR.JUSTICE S. N. SATYANARAYANA
MFA NO.20083/2009 (MV)
BETWEEN:
The Managing Director,
N.W.K.R.T.C.
Gokul Road, Hosu,
Hubli.
Reptd. By Chief Law Officer,
Central Office, Hubli. ...APPELLANT
(By Sri.Shivakumar S. Badawadagi, Adv.)
AND:
Shivappa s/o Bankappa Barigidad.
Age: 30 years, Occ: Business.
R/o Shiggaon,
Presently residing of
Ranebennur, Tq: Ranebennur,
Dist: Haveri. ...RESPONDENTS
(By Sri.B.S. Sangati, Adv.)
THIS MFA IS FILED U/SEC 173(1) OF M.V. ACT
AGAINST THE JUDGMENT AND AWARD DATED 4.11.2008,
PASSED IN MVC.No.493/2002 ON THE FILE OF MACT,
RANEBENNUR, AND ETC.
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THIS MFA COMING ON FOR ORDERS THIS DAY, THE
COURT, DELIVERED THE FOLLOWING:
JUDGMENT
The respondent-Transport Corporation in MVC.493/2002 on the file of MACT, Ranebennur, has come up in this appeal impugning the judgment and award dated 4.11.2008 passed therein, saddling the liability to pay compensation to the respondent in a sum of Rs.1,06,200/- with interest at 6% p.a. from the date of petition till the date of deposit of the entire amount.
2. The fact that the claimant was inmate of the bus belonging to the appellant herein is not in dispute. It is also not in dispute that he fell down from the moving bus and suffered serious injuries i.e. fracture of tempo-parietal bone and fracture of patella. The case of the appellant herein is that though the accident is not in dispute and the fact that claimant was traveling in the bus, it is their specific contention that at the relevant time of the accident, the claimant was an unauthorized 3 passenger not having possessed valid ticket to travel in the bus and he was sitting on the roof top of the bus without the consent of either the conductor or the driver of the bus. It is their case that, when the said bus was moving the claimant who was sitting on the roof top of the bus not having proper grip to hold, he fell down and suffered the alleged injuries. Hence, the plaintiff being a gratuitous unauthorized passenger, he is not entitled to claim compensation. It is further contended that though there was sufficient space inside the bus, the claimant unauthorisedly has chosen to climb and sit on the top of the bus at his own risk and therefore, he being gratuitous unauthorized passenger is not entitled to seek compensation in these proceedings.
3. On service of notice of this appeal, the respondent-claimant has entered appearance and he tried to substantiate that the claimant was not sitting on the top of the bus and was sitting inside the bus. So far 4 as the contention that he was an authorized passenger in the bus, the learned Counsel appearing for the claimant is unable to state whether the claimant possessed a valid ticket and whether it was produced at the time of his evidence to substantiate that he was traveling as an authorized passenger.
4. However, it is the contention of the respondent-claimant that in the light of the Full Bench decision of this Court in the matter of N.E.K.R.T.C. vs. Vijayalaxmi and others, reported in 2012 ACJ 1968, in which it has been held that even in case where the passenger traveling on the rooftop of the bus suffering injury or death without there being negligence on his part, he/or his legal representatives will be entitled to seek compensation from the Corporation subject to the extent of contribution on the part of the driver and conductor of the bus. No contributory negligence or fixed percentage of contribution could be 5 attributed to the passenger merely because he was travelling on the rooftop of the bus. In that view of the matter, it is submitted that in the light of the aforesaid judgment the claimant is entitled to compensation as awarded by the Tribunal, if not enhanced compensation by this Court.
5. Heard the learned Counsel for the appellant and the respondent. Perused the impugned judgment and award and also the ratio laid down by the Full Bench of this Court in the aforesaid matter.
6. On going through the same, it is clearly seen that the said judgment would come to the rescue of the claimant herein only in such circumstance where he is an authorized passenger traveling with valid ticket issued by the Transport Corporation. In the instant case, there is nothing on record to demonstrate that the claimant was authorized passenger in the aforesaid bus. Though the claimant tried to substantiate that he was 6 sitting inside the bus, the FIR which is filed immediately after the accident by the claimant himself clearly discloses that at the relevant time of the accident he was sitting on the rooftop of the bus. The claimant does not state as to whether he had purchased valid ticket to travel in the said bus, he also does not say whether he had the approval or concurrence of either the conductor or driver of the bus to sit on the rooftop of the bus. It is also not his case that the bus was crowded and therefore he had to climb on to the rooftop of the bus. In the instant case, the material available on record does not disclose any acceptable reason for the claimant to climb on to the top of the bus. It also does not disclose that he was travelling as fare paid passenger in the offending bus.
7. The Judgment referred to by the Counsel appearing for the respondent-claimant is rendered by the Full Bench of this Court to which the Presiding Judge 7 of this bench is also a party. The said decision was rendered by the Full Bench to decide the contributory negligence on the part of the passenger and also the driver and conductor of the bus who are conducting the bus and the said reference arose because of conflicting view taken by two benches of this Court. While deciding the said point for reference what was in the mind of the full bench was with reference to the point which arose from a case where the passengers travelling with valid tickets climbing to the rooftop of the bus as there was no space available inside the bus. That is not the position in the present case. Admittedly, in the instant case the person who was traveling on the rooftop of the bus was not having valid ticket and further it is not his case that he climbed on the rooftop because there was no space to sit inside the bus.
8. In that view of the matter, the facts of this case are totally different from that of the case before the 8 Full Bench of this Court. In the instant case, admittedly, the person who was traveling on the rooftop of the bus was doing so without the consent or concurrence of the conductor or driver of the offending bus and further he was an unauthorized gratuitous passenger. Infact, the driver and conductor of the bus were not even aware of the claimant sitting on the rooftop of the bus, therefore, the question of fixing any contributory negligence on the part of the driver or conduct does not arise. In that view of the matter, the entire mistake in claimant sitting on the rooftop of the bus without purchasing the valid ticket is on himself. In that view of the matter, the question of fixing contributory negligence to certain extent on the claimant, driver and conductor of the bus does not arise.
9. Hence, this Court is of the opinion that the claimant himself being the tortfeaser having boarded the bus without valid ticket and having sat on the rooftop of 9 the bus without the consent of either the conductor or driver of the bus, has taken the exclusive risk of traveling in the aforesaid manner by himself and in view of the fact that his journey being totally unauthorised, to presume that the driver or conductor were aware of his presence on the rooftop of the bus and that there is contributory negligence, does not stand to reason. This Court cannot accept the aforesaid contention of the respondent-claimant before the Tribunal that there is primary liability on the part of the Transport Corporation to satisfy the compensation awarded by the Tribunal. In that view of the matter, this Court feel that the peculiar facts and circumstances of this case would not draw the ratio laid down by the Full Bench decision of this Court rendered in the aforesaid matter, in seeking to fix the contributory negligence on the part of the driver and conductor of the offending bus and to seek compensation to that extent from out of the compensation calculated by the Tribunal. 10
10. Accordingly, the appeal is allowed. The Judgment and Award dated 4.11.2008 passed by the Tribunal in fixing the liability on the part of the respondent-Corporation to pay compensation to the claimant in a sum of Rs.1,06,200/- is hereby set-aside for the reason there being no contributory negligence on the part of the driver and conductor of the offending bus bearing No.KA.17/F-214 belonging to the respondent- Corporation.
In view of the appeal being allowed, the amount in deposit is ordered to be refunded to the Appellant- Corporation.
Sd/-
JUDGE Sub/-