Amrut IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO.30 OF 2015 Karnataka Road State Transport Corporation, Hubli Rural Bus Depot No.2, Hubli, Karnataka. … Appellant Versus

1. Smt. Fatima Shaikh, Major of age, housewife, 2. Kum. Taira Shaikh, Major of age, student, 3. Kum. Kader Shaikh, Major of age, student, All Indian Nationals, Residents of H.No.896, E.W.S., Rumdamoll, Layamati – Davorlim, Margao, Salcete Goa.

4. Shri Maruti Badiger, Driver- Bus No.KA-25 – F- 2106, C/o Karnataka Road State Transport Corporation (K. R. S. T. C.)

Hubli, Karnataka.

5. The Managing Director, Karnataka Road State … Respondents Transport Corporation.

WITH FIRST APPEAL NO.29 OF 2015 Karnataka Road State Transport Corporation, Hubli Rural Bus Depot No.2, Hubli, Karnataka. ...Appellant Versus

1. Shri Tanvir Shaikh, Major of age, student, Indian National, Resident of H.No.896, E.W.S., Rumdamoll, Layamati – Davorlim, Margao, Salcete Goa.

2. Shri Maruti Badiger, Driver- Bus No. KA-25 – F- 2106, C/o Karnataka Road State Transport Corporation (K. R. S. T. C.)

Hubli, Karnataka.

3. The Managing Director, Karnataka Road State Transport Corporation. ...Respondents Mr. Shivan Desai, Advocate for the Appellant.

None for the Respondents.

CORAM: M. S. SONAK, J.

RESERVED ON : 18th August 2022 PRONOUNCED 19th August 2022 ON:

JUDGMENT

1. Heard Mr. Shivan Desai, learned counsel for the Appellant in both these appeals. The Respondents, though served, were neither present nor represented.

2. Mr. Desai agrees that a common judgment and order can dispose of both these appeals since the principal issue raised in both these appeals is common. Besides, both the appeals arise out of claim petitions concerning the late Akbar Shaikh, who died in a vehicular accident on 31.05.2008.

3. First Appeal No.30 of 2015 arises from the impugned award in Claim Petition No.214/2009. This claim petition was instituted by a widow and the two minor children of late Akbar Shaikh.

4. First Appeal No.29 of 2015 arises out of the impugned award in Claim Petition No. 215/2009 instituted by Tanvir Shaikh, son of late Akbar Shaikh, for his injuries in the above accident on 31.05.2008. Therefore, it is only appropriate that a common judgment and order dispose of both these appeals.

5. Mr. Desai made it clear that the Appellant was neither challenging the factum of the accident nor the quantum of compensation determined by the Tribunal. However, Mr. Desai submitted that the finding recorded by the Tribunal in both the matters that the accident was caused due to rashness and negligence on the part of the bus driver is entirely perverse and unsustainable for several reasons. Mr. Desai submitted that if this finding is reversed, no liability can be imposed on the Appellant, even vicariously.

6. Mr. Desai has submitted that the finding recorded by the Tribunal on the rashness and negligence of the bus driver was hit by the principle of res judicata. He presents that in Claim Petition No. M.V.C. No.104/2009 instituted by a passenger from the Appellant's bus driven by Maruti Badiger, the MACT at Karwar, upon due consideration of the oral and documentary evidence, returned a finding that this very accident was on account of rash and negligent driving of the lorry by late Akbar Shaikh. He submits that Smt. Fatima Shaikh, the widow of Akbar Shaikh, was a party in M.V.C. No.104/2009 before the MACT, Karwar. He presents that the claimants in the two claim petitions in which the awards impugned in these appeals have been made are the legal representatives of late Akbar Shaikh. Therefore, he submits that the finding recorded by Karwar Tribunal operates as res judicata, and the MACT, North Goa (Goa Tribunal) was not justified in taking a contrary position and holding that this very accident took place due to the rashness and negligence of Maruti Badiger, the bus driver. He submits that though this plea was raised before the Goa Tribunal, the same was summarily rejected, and such rejection is contrary to law.

7. Mr. Desai submit