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Judgment
N.K. Patil, J.—Though these matters are posted today for orders, the same are taken up for final disposal, with the consent of learned counsel appearing for both the parties.
These appeals by the Insurer and by the claimants are arising out of the same judgment and award dated 12/11/2010, passed in MVC No. 6263/2009, by the XXII Additional Small Causes Judge, Court of Small Causes and Member, Motor Accident Claims Tribunal, Bangalore, (hereinafter referred to as ''Tribunal'' for short).
By its judgment and award, the Tribunal has awarded a sum of Rs. 1,05,000/- with interest at 6% p.a., from the date of petition till the date of realization as against the claim made by the claimants for a sum of Rs. 50,00,000/-, on account of the death of the deceased Sri. Jayanna. K. in the road traffic accident. Aggrieved by the said judgment and award of the Tribunal, the Insurer has filed an appeal challenging the same on liability and whereas, the claimants have filed an appeal seeking enhancement of compensation.
The brief facts of the case of the claimants are, that on 3.4.2009 at about 4.00 p.m. deceased was riding the motor cycle bearing Reg. No. KA. 16J. 963 cautiously on Uttarahalli road and when he came near Kodipalya cross, at that time, the rider of a Pulser motor cycle bearing Reg. No. KA. 05. HC. 5542 came from opposite direction with high speed in a rash and negligent manner and dashed against the motor cycle of the deceased. Due to which, deceased fell down and succumbed to the injuries on he way to the hospital.
It is the further case of the claimants that, deceased was aged about 36 years and hale and healthy prior to the accident. He was working as Civil Engineer in Grasim Industries Ltd. (Aditya Birla Group) and earning a sum of Rs. 41,380/- P.M. and the claimant No. 1 is the handicapped sister and claimant No. 2 is the brother of the deceased and they are totally depending on the income of the deceased. On account of his untimely death, claimants have suffered mental shock and agony apart from financial distress. Therefore, they filed a claim petition before the Tribunal under Section 166 of M.V. Act, claiming compensation against the respondents.
The said claim petition had come up for consideration before the Tribunal. The Tribunal, after hearing the learned counsel for both the parties and after appreciating the oral and documentary evidence available on file, has allowed the said petition in part and awarded the compensation of Rs. 1,05,000/- with interest at 6% p.a. from the date of petition till the date of realization, holding that the owner and Insurer of the motor cycle bearing Reg. No. KA. 05. HC. 5542 are jointly and severally liable to pay the compensation with interest and directing the Insurer to deposit the compensation amount with interest.
We have heard learned counsel appearing for Insurer and learned counsel appearing for claimants.
The submission of the learned counsel Sri. H.N. Keshava Prashanth, appearing for the Insurer, at the outset is that, the direction issued by the Tribunal to the Insurer to indemnify the award amount holding that owner and insurer of the motor cycle bearing Reg. No. KA. 05. HC. 5542 are jointly and severally liable to pay the compensation is not sustainable and is liable to be set aside. To substantiate the said submission, he has taken us through the reasoning given by the Tribunal in Paras 29 and 30 of its judgment and also placed heavy reliance on the judgment of the Supreme Court and this Court as referred in the said para and submitted that, the same have not been considered by the Tribunal and by placing reliance on the decision reported in Oriental Insurance Company Limited Vs. Ramesh B. Jain and Others, (2004) ACJ 677 : (2003) ILR (Kar) 5164 : (2004) 1 KarLJ 456 : (2003) 4 KCCR 399 SN and H.G. Ramachandra Rao Vs. Master Srikantha and others, (1999) ACJ 1318 : AIR 1997 Kar 347 : (1997) ILR (Kar) 2828 : (1997) 3 KarLJ 508 , has proceeded to hold that liability of the owner and Insurer are jointly and severally. Further, he submitted that, in fact, the Insurer has taken a specific objection in his written statement filed after receipt of summons to the effect that, the driver of the motor cycle bearing Reg. No. KA. 05. HC. 5542 does not possess valid and effective DL as on the date of the accident and no issue to that effect as such has been framed and therefore, on this sole ground, the impugned judgment and award passed by the Tribunal is liable to be set aside and the matter be remitted back to the jurisdictional Tribunal for reconsideration to enable the parties to make their sincere efforts to produce necessary documents to show that the driver had no valid DL.
Learned counsel appearing for the claimants, at the outset submitted that, the Tribunal has erred in not awarding reasonable compensation towards loss of estate, loss of love and affection and towards transportation and funeral expenses and what is awarded is on the lower side and is liable to be enhanced reasonably. To substantiate the said submission, he submitted that, deceased was aged about 36 years, working as a Civil Engineer in Grasim Industries Ltd. (Aditya Birla Group) and earning a sum of Rs. 41,380/- P.M. as per Ex. P21 and out of which, after deducting income tax and professional tax, and applying appropriate multiplier, reasonable compensation may be awarded towards loss of estate. He further submits that, the submission of the learned counsel appearing for Insurer that a direction may be issued to the owner of the motor cycle to indemnify the award amount cannot be sustained and there is no substance in the said submission. He has submitted placing reliance on the judgment reported in 1999 ACJ 171 (Rukmani and others Vs. New India Assurance Co., Ltd., and others that, the burden is on the Insurer to establish that the offending driver had no licence so as to exonerate it from its liability which the insurer has failed to do so and therefore, the Tribunal has justified in allowing the petition holding that owner and insurer are jointly and severalty liable to pay the compensation and directing the insurer to indemnify the award amount and therefore, it does not call for interference.
After hearing the learned counsel for both the parties, after careful perusal of the impugned judgment and award passed by the Tribunal, it emerges that, the handicapped sister and brother of the deceased are the dependants and deceased was aged about 36 years, working as Civil Engineer in Grasim Industries Ltd. (Aditya Birla Group) and earning a sum of Rs. 41,380/- P.M. It is significant to note as rightly pointed out by the learned counsel appearing for insurer that, insurer has taken a specific stand in its written statement that, the rider of the motor cycle bearing Reg. No. KA. 05. HC. 5542 does not possess effective DL as on the date of the accident and therefore, the insurer is not liable to indemnify the award amount. It is pertinent to note after microscopic evaluation of the original records available on file, specifically, the written statement filed by the Insurer that, it is a fact that, Insurer has taken objection to that effect, but, no issue as such has been framed by the Tribunal and decided the same. The Tribunal, placing reliance on the decision reported in 2004 ACJ 677 and 1999 ACJ 1318, has held that liability of the respondents are joint and several and they are jointly and severally liable to indemnify the award amount and issued a direction to the Insurer to indemnify the award amount. The said reasoning given by the Tribunal in paras 30 and 31 cannot be sustained and is liable to be set aside and the matter requires reconsideration afresh by the Tribunal and therefore, we do not propose to express any opinion on the merits and demerits of this case.
Having regard to the facts and circumstances of the case as stated above, without expressing any opinion on the merits and demerits of this case and to safeguard the interest of both the parties, it would be appropriate to direct the Tribunal to reconsider the matter afresh and to pass orders in accordance with law.
For the foregoing reasons, the appeal filed by the Insurer and the appeal filed by the claimants are allowed in part.
The impugned judgment and award dated 12/11/2010, passed in MVC No. 6263/2009, by the XXII Additional Small Causes Judge, Court of Small Causes and Member, Motor Accident Claims Tribunal, Bangalore, is hereby set aside and the matter stands remitted back to the Tribunal for reconsideration afresh, with a direction to pass appropriate order, in accordance with law, after affording reasonable opportunity of hearing to the Insurer and claimants, personally or through their counsel and dispose of the same, as expeditiously as possible, at any rate, within a period of six months from the date of appearance of the parties before the Tribunal personally or through their counsel.
The Insurer and the claimants are permitted to file necessary applications before the Tribunal to lead additional evidence both oral and documentary, within four weeks from the date of receipt of a copy of this judgment.
In the event, if such applications are filed by the parties, within the time stipulated above, the Tribunal is directed to receive the same and proceed further and dispose of the same, in terms of the above directions issued by this Court.
The Insurer, the claimants and respondent No. 3 herein are directed to appear before the Tribunal either personally or through their counsel on 13th July 2015 at 11.00 a.m. to take further dates of hearing.
Registry is directed to return the entire original records to the jurisdictional Tribunal, forthwith.
The claimants are not entitled to any interest for the delayed period of 597 days in filing the appeal, if they succeed before the Tribunal after the remand.
The amount deposited by the Insurer shall be refunded to the Insurer personally or through its counsel immediately.
In view of the disposal of the main matter, the relief sought by the Insurer in Misc. Cvl. 11 173/2011 in M.F.A. No. 4833/2011 does not survive for consideration. Hence, it is disposed of as having become infructuous. Ordered accordingly.