Anjanappa and Others vs The Managing Director, K.S.R.T.C. and Others

N.K. Patil, J.

This appeal by the appellants-claimants is directed against the impugned judgment and award dated 19/06/2007 passed in MVC No. 2096/2003, by the VI Additional Small Causes Judge and Motor Accident Claims Tribunal, Bangalore (SCCH-2), (hereinafter referred to as ''Tribunal'' for short).

The Tribunal by its judgment and award has awarded a sum of Rs. 4,12,500/- under different heads with interest at 7% per annum from the date of evidence i.e. 1.3.2005 till the date of deposit, on account of the death of the deceased Sri. A. Manjunath, in the road traffic accident and directed the respondent No. 2 to act upon regarding deposit of award amount in accordance with the provisions of Section 168(3) of the Act.

In brief, the facts of the case are:

The appellants being the parents of the deceased have filed a claim petition before the Tribunal under Section 163-A of M.V. Act, claiming compensation against the respondents, contending that, on 6.12.2003 at about 12.45 p.m. deceased Manjunath was traveling on Motorcycle bearing Reg. No. KA. 08. E. 900 as a pillion rider towards Kolar and when they came near Kammandahalli Tank bund curve, at that time, one KSRTC bus bearing Reg. No. KA. 01. F. 6754 came from the opposite direction and dashed against the two wheeler. Due to which, deceased sustained grievous injuries and died on the spot.

It is the further case of the appellants that deceased was aged about 28 years, hale and healthy prior to the accident, working as agriculturist and earning Rs. 3,000/- per month, looking after the welfare of the family and due to his untimely death they have lost their future hopes and security and it has also affected the social and economic condition of the family. The said claim petition had come up for consideration before the Tribunal. The Tribunal, in turn, after appreciating the oral and documentary evidence and other material available on file, has allowed the said claim petition in part, awarding the compensation of Rs. 4,12,500/- under different heads with interest at 7% p.a., from the date of evidence i.e. 1.3.2005 till the date of deposit and directing the respondent No. 2, owner of the motor cycle bearing Reg. No. KA. 08. R900 to act upon regarding deposit of award amount in accordance with the provisions of Section 168(3) of the Act.

Being aggrieved by the direction issued by the Tribunal to the respondent No. 2, owner of the motor cycle to indemnify the entire award amount, the appellants have presented this appeal for modification, on the ground that, the Tribunal has fastened entire liability on the respondent No. 2, owner of the motorcycle instead of fastening liability jointly and severally on the part of respondent Nos. 1 and 2 as two vehicles were involved in the accident as the petition is filed under Section 163-A of M.V. Act and contrary to the evidence available on record and the decisions of the Apex Court and this Court. During the pendency of this appeal, appellant No. 1 has died and appellant No. 2 has been treated as legal representative of appellant No. 1.

I have heard the learned counsel appearing for the appellants and learned counsel for respondent No. 1.

The submission of learned counsel Sri. Jagadish G. Kumbar for Sri. N. Gopalknshna, appearing for the appellants at the outset is that, the Tribunal has grossly erred in dismissing the claim made against the respondent No. 1 on the ground that the chargesheet was filed against the rider of motor cycle bearing Reg. No. KA. 08. R900 in which the appellants'' deceased son was a pillion rider and no negligence should be attributed to the driver of the bus bearing Reg. No. KA. 01. F. 6754 belonging to respondent No. 1 and it ought to have appreciated that the appellants have made their claim specifically under Section 163-A of M.V. Act, 1988 and a claim under Section 163-A is irrespective of proof of negligence on the part of the drivers of the vehicles involved and the Tribunal having accepted the fact that the vehicle KA. 08. E. 900 and KA. 01. F. 6754 were the two vehicles involved in the accident, ought to have proceeded to pass award in respect of amount payable by fastening liability on the all the respondents jointly and severally and hence, the award passed against the respondent No. 2 alone is bad in law and the same is liable to be modified. To substantiate his submission, he placed reliance on para-4 of the judgment of the Division Bench of this Court dated 17th March 2010 passed in M.F.A. Nos. 7415/2004 (M/s. United India Insurance Company Ltd., Vs. Radha A. Kamath and others) and connected matter and submitted that, the provisions of Section 163(a) of the Motor Vehicles Act disclose that in a case of composite negligence of two vehicles the owners and insurers of both the vehicles would be liable to pay the compensation and therefore, in terms of the said Section, respondent No. 1 and respondent No. 2 owners of both the vehicles i.e. the bus and the motor cycle are liable to pay the compensation in the ratio of 50:50. Therefore, he submitted that the impugned judgment and award passed by the Tribunal is liable to be modified by setting aside the direction issued to the respondent No. 2 to indemnify the entire award amount by issuing a direction to both the respondent Nos. 1 and 2 who are the owner of the bus and the Motor cycle to indemnify the award amount at the rate of 50% each.

As against this, learned counsel appearing for respondent No. 1, inter-alia, sought to substantiate that the impugned judgment and award passed by the Tribunal is just and reasonable and after due consideration of the oral and documentary evidence available on record and therefore, it does not call for interference. To substantiate his submission, he submitted that the charge sheet has been failed against the rider of motor vehicle and there is no negligence on the part of the driver of the bus belonging to the respondent No. 1-Corporation and therefore, the Tribunal, after assigning valid reasons in paras 10 and 11 of the judgment has justified in issuing a direction to the respondent No. 2, to indemnify the award amount and therefore, it does not call for interference. However, after going through the judgment of the Division Bench of this Court as referred above, he submitted that, the same may be considered in accordance with law.

After careful consideration of the submissions made by learned counsel appearing for the parties and after careful perusal of the material available on record at threadbare, including the impugned judgment and award passed by the Tribunal, it emerges that, the occurrence of the accident and the resultant death of the deceased are not in dispute. It is also not in dispute that two vehicles were involved in the accident i.e. bus belonging to the respondent No. 1-Corporation and the motor cycle belonging to the respondent No. 2 and the deceased was the pillion rider in the said motor cycle. If two vehicles were involved in the accident, as per Section 163-A of M.V. Act, the Tribunal ought to have fixed the liability in the ratio of 50% each i.e. 50% on the part of the driver of the bus belonging to the respondent No. 1 Corporation and 50% on the part of the respondent No. 2 as rightly pointed out by the learned counsel appearing for the appellants in the light of the judgment of the Division Bench of this Court dated 17th March 2010 passed in M.V.C. No. 7415/2004 (M/s. United India Insurance Company Vs. Rath A Kamath and others) and connected matter. Para No. 4 of the said judgment which is relevant reads as under:

The provisions of Section 163(a) of the Motor Vehicles Act disclose that in a case of composite negligence of two vehicles the owners and insurers of both the vehicles would be liable to pay the compensation. In other words, the liability to pay compensation would be on the owners of both the vehicles and the insurers if any. The question of apportionment of negligence does not arise under Section 163(a). It is therefore, in terms of Section 163(a) the owner of the jeep shall have to pay 50% compensation and the owner of the car and the insurer of the car have to pay 50% of the compensation awarded in both the cases. Therefore, the order of the tribunal directing the insurer of the car to pay the entire compensation is untenable. The same is set aside. 50% compensation has to be paid by the owner and the insurer of the car and 50% by the owner of the jeep. In both the cases the income of the deceased persons is stated at 40,000/- each per annum. 1/3rd is to be deducted. The loss of dependency would be Rs. 26,700/- in both the cases.

After careful perusal of the reasoning given in para-4 of the judgment of the Division Bench as referred above and having regard to the facts and circumstances of the case in hand and in terms of Section 163-A of the Act, I am of the considered view that, respondent No. 1 Corporation, owner of the bus has to pay 50% of the award amount and respondent No. 2, owner of the motors cycle has to pay the remaining 50%. Therefore, the direction issued by the Tribunal to the respondent No. 2 to pay the entire compensation is not sustainable and is liable to be set aside holding that both the respondent No. 1-Corporation, owner of the bus and the respondent No. 2, owner of the motor cycle are liable to pay the compensation in the ratio of 50:50 and accordingly, the judgment and award is liable to be modified to that effect.

In so far as the quantum of compensation awarded by the Tribunal is concerned, it emerges from the judgment that, the Tribunal, after due appreciation of the oral and documentary evidence and since the petition is filed under Section 163-A of the Act and after assigning cogent and valid reasons, has justified in awarding the compensation of Rs. 4,08,000/- towards loss of dependency, Rs. 2,500/- towards loss of estate and Rs. 2,000/- towards funeral expenses and in all, Rs. 4,12,500/- with interest at 7% p.a. from the date of evidence i.e. 1.3.2005 till the date of deposit and therefore, it does not call for interference.

For the forgoing reasons, the appeal filed by the appellants is allowed in part and the impugned judgment and award dated 19/06/2007 passed in MVC No. 2096/2003, by the VI Additional Small Causes Judge and Motor Accident Claims Tribunal, Bangalore (SCCH-2), is hereby modified.

The direction issued by the Tribunal to the respondent No. 2 to indemnify the award amount is set aside by holding that the respondent No. 1, Corporation, owner of the bus is liable to pay 50% of the award amount and respondent No. 2, owner of the motor cycle is liable to pay the remaining 50%.

The respondent No. 1-Corporation and the respondent No. 2-owner of the motor cycle are directed to deposit their respective shares with interest, within a period of three weeks from the date of receipt of a copy of this judgment and award.

Office to draw the award, accordingly.