218 & 233 - FA 30-15 & 29-15.DOC

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

Transport Corporation.

… Respondents

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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 : 18

th August 2022

PRONOUNCED

ON:

19

th August 2022

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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

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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