Nagappa and Others vs Annappa Sebi and Others

N.K. Patil, J.—These two appeals respectively by the injured claimant and Insurer are directed against the same impugned judgment and award dated 27th February 2009, passed in MVC No. 201/2007, by the Civil Judge(Sr. Dn), Motor Accident Claims Tribunal, Holalkere, (for short, ''Tribunal'').

While the injured claimant has filed the appeal seeking enhancement of compensation, on the ground that the compensation awarded for the grievous injuries sustained by him is on the lower side; the Insurer has filed the appeal seeking to set aside the impugned judgment and award passed by Tribunal, on the ground that the Tribunal is not justified in saddling the liability of indemnifying the award passed by it to the Insurer.

On account of the grievous injuries sustained by the injured claimant in the road traffic accident, he filed the claim petition, before the Tribunal, seeking compensation of a sum of Rs. 4,70,000/-, against the driver cum owner and Insurer of the offending Autorickshaw bearing Registration No. KA-17/TRT-183/2006-07. The said claim petition was numbered as M.V.C. No. 201/2007 and had come up for consideration before the Tribunal on 27th February, 2009. The Tribunal, after considering the relevant material available on file and after appreciation of the oral and documentary evidence, and taking into consideration the age, avocation, nature of injuries sustained, nature and duration of treatment, functional and whole body disability suffered by the claimant, etc. allowed the claim petition in part, awarding a sum of Rs. 2,19,750/- under different heads, with 6% interest per annum, from the date of petition till the date of realization and directed the Insurer to indemnify the award amount. Not being satisfied with the quantum of compensation awarded by Tribunal, the injured claimant has filed the appeal, seeking enhancement of compensation and being highly aggrieved by the impugned judgment and award passed by Tribunal, saddling liability on the Insurer, the Insurer is in appeal before this Court, seeking to set aside the said direction, by modifying the impugned judgment and award passed by Tribunal.

We have heard Shri. R. Shashidhara, learned counsel appearing for the injured claimant and Shri. O. Mahesh, learned counsel appearing for Insurer, for quite some time.

Shri. R. Shashidhara, learned counsel appearing for the injured claimant, at the outset vehemently submitted that, the Insurer is bound to indemnify the award passed by Tribunal and pay the compensation to the injured claimant, being a third party, and if there are any violation of the terms and conditions of the policy or if the vehicle did not have the permit to ply on the road, then, it is very much open to the Insurer to initiate appropriate proceedings against the owner of the said vehicle. Further, he submitted that, the grounds taken by the Insurer in the objections are that the driver did not possess a valid and effective driving licence and that the vehicle was not duly registered as on the date of accident. The said grounds cannot be the basis for not indemnifying the award passed by Tribunal and to set aside the direction to pay the compensation. The Tribunal, after critical evaluation of the oral and documentary evidence available on file, has held that the accident occurred due to rash and negligent driving by the driver of the vehicle in question and accordingly, directed the Insurer to indemnify the award. He also submitted that the quantum of compensation awarded by Tribunal for the grievous injuries sustained by the injured claimant is on the lower side and hence, reasonable enhancement be made under all the heads, viz. injury, pain and sufferings, loss of income during treatment period, loss of amenities, discomfort and unhappiness on account of disability etc., considering the age, avocation, nature of injuries sustained, nature and duration of treatment undergone, etc., by modifying the impugned judgment and award passed by Tribunal.

As against this, learned counsel appearing for Insurer inter alia contended and submitted that the impugned judgment and award passed by Tribunal is liable to be set aside as the same is passed contrary to the material on record and the finding of the Tribunal on the question of contributory negligence on the part of the injured claimant is contrary to the relevant provisions of the Motor Vehicles Act. Further, he submitted that the Tribunal grossly erred in fastening the liability on the Insurer for the reason that the vehicle in question was not even registered as on the date of accident as required under the relevant provisions of the Motor Vehicles Act. Further, the driver of the said vehicle had no valid and effective Driving Licence to drive the said vehicle and there is violation of the terms and conditions of the policy and contravention of the relevant provisions of the Motor Vehicles Act. He further submitted that when such a specific stand has been taken in the objections filed before the Tribunal, the Tribunal ought to have framed necessary issues for consideration. Hence, the impugned judgment and award passed by Tribunal, without framing of necessary issues for consideration and deciding the matter on hyper technical ground, contrary to the documentary evidence available on file, cannot be sustained and is liable to be set aside at the threshold.

After careful consideration of the submission of the learned counsel appearing for both the parties and after careful evaluation of the oral and documentary evidence available on file including the impugned judgment and award passed by Tribunal, it emerges that, occurrence of accident at about 12:30 P.M. on 06-10-2006 and the resultant injuries sustained by the injured claimant are not in dispute.

It is the specific case of injured claimant that when he and his relative were returning by walk from Basapura after attending the funeral ceremony of one Thimmappa, on NH-13 road, near Arehalli village in Holalkere Taluk, the driver of Goods Auto bearing Registration No. KA-17/TRT-183/2006-07 drove the same at a high speed, in a rash and negligent manner and dashed against the injured claimant, due to which, the injured claimant sustained grievous injuries and took treatment for the same by spending huge sums of money.

It is the specific case of the Insurer that, in spite of taking a specific stand in the written statement filed before the Tribunal that the vehicle in question was not duly registered as on the date of accident as envisaged under the relevant provisions of the Motor Vehicles Act and that the driver of the vehicle did not possess a valid and effective Driving Licence to drive the said vehicle and there is gross violation of the terms and conditions of policy and also contravention of the relevant provisions of the Motor Vehicles Act, the Tribunal has proceeded to pass the impugned judgment and award, saddling liability on the Insurer to indemnify the award amount. The said direction cannot be sustained and is liable to be set aside.

I find some force in the submission of the learned counsel appearing for Insurer. When the Insurer has taken specific grounds in the written statement filed before the Tribunal, the Tribunal ought to have framed necessary issues for consideration, answered it after appreciation of the oral and documentary evidence available on file and thereafter decided the matter in accordance with law after going through the pleadings of both the parties carefully and the case made out by each of them. Instead, the Tribunal has proceeded to pass the impugned judgment and award, concluding the proceedings, without framing necessary issues, holding that due to rash and negligent driving by the driver of the goods auto, the accident has occurred and the claimant has sustained grievous injuries and therefore, the Insurer is liable to indemnify the award. The said reasoning given by Tribunal cannot be sustained in the eye of law.

Therefore, without expressing any further opinion on the merits or demerits of the case, it would suffice for this Court, if the matter is remanded back to the jurisdictional Tribunal with appropriate direction to it to dispose of the same expeditiously, after hearing all the parties concerned.

In the light of the discussion made above, the appeals filed by the injured claimant and also the Insurer are allowed.

"The impugned judgment and award dated 27th February 2009, passed in MVC No. 201/2007, by the Civil Judge(Sr. Dn), Motor Accident Claims Tribunal, Holalkere, is hereby set aside;

The matter stands remanded back to Tribunal for reconsideration and re-determination of compensation afresh and to pass appropriate order, in accordance with law, after affording reasonable opportunity of hearing to all the parties concerned, personally or through their counsel and dispose of the same, as expeditiously as possible, on top priority basis, not later than six months from the date of appearance of the parties;

All the parties are permitted to file necessary applications, for adducing additional oral and documentary evidence to substantiate their respective prayer; within four weeks from the date of receipt of a copy of this judgment;

In case such applications are filed by the learned counsel for the parties, within the time stipulated above, the Tribunal shall receive the same and proceed further and dispose of the same as expeditiously as possible, as directed above;

Further, the injured claimant, Insurer and the owner of the offending vehicle are hereby directed to appear before the jurisdictional Tribunal on 28-04-2015 at 11:00 A.M. personally or through their counsel, to enable them to take further dates of hearing;

Further, Tribunal is directed to issue emergent notice to the owner of the offending vehicle, returnable in one week, to enable him to appear on the aforesaid date and time before the Tribunal;

Registry is directed to return the original records, if any, to the jurisdictional Tribunal, forthwith;

The amount in deposit in M.F.A. No. 2486/2009 filed by the Insurer shall be refunded to the Insurer, through its counsel or authorized Officer, forthwith;

All the contentions urged by both the parties in these appeals are left open."