Munirathna and Others vs Hari K. and Others

P.S. Dinesh Kumar, J—The judgment and award dated 4.1.2014 in MVC No. 4875/2012 on the file of III Addl. Senior Civil Judge & MACT., Bengaluru (Tribunal'' for short) is called in question both by the Insurer and the claimants with regard to liability and quantum.

MFA No. 2578/2014 is filed by the Insurer and MFA No. 3164/2014 by the claimants.

For the sake of convenience, parties shall be referred as per their status in the claim petition.

Brief facts of the case are, on 18.7.2012 at about 1.30 a.m. a transport vehicle of Canter make bearing registration No. TN-24-K-1959 ran over the victim Subramani killing him on the spot on the Hosur road (NH-7) in Attibele Hobli, Yadavanahalli, Anekal Taluk, Bengaluru. His wife and other legal representatives filed the instant claim petition claiming Rs. 30 lakhs contending inter alia that the victim was dashed against by the Canter vehicle; he was working as a fitter earning Rs. 11,200/- per month and the family has lost the bread winner and the head of the family.

Owner of the Canter, it''s insurer, owner of a 407 tempo (KA-51-2748) and it''s Insurer are arrayed as party respondents in the cause title of the claim petition. However, there is no specific pleading with regard to the tempo in the body of the petition.

First respondent, owner of Canter contested the petition refuting the averments and contending that the sketch prepared by the police indicated that his vehicle dashed against an ambulance and the FIR indicated that his vehicle, Canter dashed against the Tempo and the said Tempo inturn dashed against the ambulance injuring the ambulance staff. It is admitted that the victim came under the wheels of his vehicle and died on the spot. While describing the claim petition as false, he has prayed for dismissal of the same.

Second respondent, Insurer of Canter, contesting the claim petition has taken different stands. It has denied the very occurrence of the accident in paragraph No. 10 and admitted in paragraph No. 13. In paragraph No. 14, it is stated that accident took place due to the negligence on the part of the other vehicles involved in the accident. While concluding with a prayer to dismiss the petition, the Insurer has also prayed to restrict the rate of interest to 4% p.a. in the event of Tribunal passing any award.

Fifth respondent, insurer of Tempo has stated in it''s objections that liability to indemnify the third respondent is subject to the terms and conditions in the policy; that in the face of the pleadings contained in the claim petition that deceased Subramani was dashed against by the Canter vehicle, it is neither a proper nor necessary party and accordingly prayed for dismissal of the petition for misjoinder.

On consideration of the material on record, the Tribunal has awarded a sum of Rs. 17,10,000/- payable with 8% interest from the date of the petition holding Respondent Nos. 1 and 2 liable. Petition against respondents No. 3 to 5 has been dismissed. Hence, these appeals.

We have heard Sri O. Mahesh, learned Counsel for the appellant - Insurer; Sri R.L. Udaya Kumar, learned Counsel for respondent Nos. 1 and 2 to 6; Smt. A. Manjula, learned Counsel for respondent No. 7. Notice to R8 & R9 has been dispensed with vide order dated 8.7.2015 in MFA No. 2578/2014.

We have heard Sri R.L. Udaya Kumar, learned Counsel for the appellants, Sri O. Mahesh, learned Counsel for respondent No. 2 in MFA No. 3164/2014. Notice to R1, R3, R4, R5 has been dispensed with vide order dated 8.7.2015.

Sri O. Mahesh, learned Counsel for the appellant in MFA No. 2578/2014 has urged following contentions:-

"(i) that the Tribunal failed to consider the fact that the deceased was earlier injured due to use of Tempo in the middle of the highway and an ambulance was at the spot improperly stationed to shift the injured for medical help and in the said process alleged accident had taken place. Therefore, the first offender is the driver of the Tempo;

(ii) that the eyewitnesses including the complainant Krishnamurthy were not examined;

(iii) that P.W. 2 has admitted involvement of Tempo and an ambulance in the accident and therefore the liability saddled against insurer of canter is bad in law as more than one vehicle is admittedly involved but there is no finding with regard to liability against other vehicles."

In sum and substance, he submits that the driver of the Tempo is the principal offender. Three vehicles were involved in the accident and therefore the Tribunal was not right in saddling the liability against Insurer of the Canter and prays for allowing the appeal.

Per contra, learned Counsel for the claimants while supporting the judgment and award of the Tribunal submits that no efforts were made by the first respondent - insurer to substantiate its stand before the Tribunal. With regard to the quantum, he submits that the quantum awarded is grossly inadequate considering Ex. P8, the salary certificate. Tribunal erred in taking the earning capacity of the deceased at the rate of Rs. 250/- per day without any rationale. The compensation awarded on other conventional heads is also inadequate and it requires re-consideration. Accordingly, he prays for dismissing the appeal filed by the insurer and to allow the appeal filed by the claimants.

We have carefully considered the submissions made by the learned Counsel for the claimants and the first respondent and examined the material papers.

The complainant is one Krishnamurthy. Ex. P1, FIR with complaint has been marked through the wife of deceased Munirathna. Ex. P2 is the Panchanama. Complainant is also one of the panch witnesses. Complainant has not been examined before the Tribunal.

In the charge sheet, C.W. 2 is shown as an eyewitness and C.Ws. 3, 4 & 5 are shown as injured witnesses. Out of the said four witnesses, only C.W. 3 -Veerabhadrappa has been examined. Therefore, the Tribunal did not have the benefit of depositions of complainant, eyewitness - S. Shivakumar and other two injured witnesses.

Action has been brought by the legal representatives of a deceased for compensation. The first respondent - insurer has resisted the claim before the Tribunal and continued the legal battle in this Court by calling in question the impugned judgment and award of the Tribunal.

The principal contention urged on behalf of the first respondent - insurer is denial of the very occurrence of the accident and involvement of insured vehicle namely, Canter - Lorry bearing No. TN-24-K-1959. Tribunal has held the first respondent liable to satisfy the award. In order to consider the grounds of appeal urged on behalf of the Insurer, in our considered view, the award of the Tribunal is vulnerable for want of evidence of eyewitnesses as also the complainant. In the absence of evidence of said witnesses, it would be inappropriate for us to express our opinion one way or the other.

In the circumstances, we deem it expedient to remit the matter to the Tribunal for fresh consideration after affording reasonable opportunity to all the parties concerned. Since the accident is of the year 2012, it is necessary that this lis is disposed of at an early date by the Tribunal.

In the result, we pass the following:-

"ORDER

(i) Judgment and award dated 4.1.2014 in MVC No. 4875/2012 on the file of III Addl. Senior Civil Judge & MACT., Bengaluru, is set aside and the matter is remitted back to the Tribunal for fresh disposal in accordance with law;

(ii) The Tribunal is directed to grant opportunity to all parties to lead evidence and thereafter to hear them and dispose of the claim petition as early as possible and at any rate within a period of six months from the date of appearance of the parties;

(iii) All contentions of respective parties are left open;

(iv) Parties are directed to appear before the Jurisdictional Tribunal on 14.9.2015 at 11.00 a.m without notice and shall appear on all such further adjourned dates;

(v) The statutory deposit made by the Insurance Company in MFA No. 2578/2014 shall be transmitted to the Jurisdictional Tribunal, forthwith and the Tribunal, inturn is directed to invest the same in any nationalized/scheduled Bank, until disposal of claim petition after the remand.

(vi) Appeal Nos. 3164/2014 & 2578/2014 stand disposed of in the above terms."

No costs.