P. Supriya and Others vs The Managing Director, Bangalore Metropolitan Transport Corporation and Others

P.D. Waingankar, J.—Both these appeals are arising out of the judgment and award dated 21.11.2012 in MVC No. 5905/2010 on the file of MACT and XXI Additional Small Causes Judge, Bangalore.

Brief facts which gave rise to these appeals are as under:

"On 09.07.2010, deceased-Praveen Kumar P was proceeding on his motor bike bearing registration No. AP-29-H-3889. At about 2.00 p.m. when he reached near G.E. Health Care Company near Vydehi Hospital, a BMTC bus No. KA-01-FA-413 driven by its driver came in a rash and negligent manner and dashed against the deceased-Praveen Kumar P from behind. As a result, deceased fell down and sustained multiple injuries. While undergoing treatment in Vydehi Hospital, he succumbed to the injuries."

His wife, minor daughter and the parents filed a claim petition under section 166 of M.V. Act in MVC No. 5905/2010 claiming compensation from the owner and insurer of the BMTC bus. The claim petition was contested by the insurer of the bus mainly on the ground that at the time of the accident, the bus was being driven by a sweeper working in BMTC as the driver had abandoned the bus and thereby the owner of the bus has committed a breach of policy conditions which disentitles the insurance company from indemnifying the owner of the bus in the event an award is passed in favour of the claimants.

The claim petition came up for consideration before the Tribunal before whom on behalf of the claimants the claimant No. 3 father of the deceased was examined as P.W. 1, One Avijith Mukherjee as P.W. 2 and one Lokesh Reddy as P.W. 3. Exs. P1 to P29 were marked. On behalf of the insurance company, three witnesses were examined as RWs. 1 to 3. Exs. R1 to R7 were marked. The respondent-BMTC has not led any evidence either oral or documentary. The claims Tribunal on appreciation of evidence rejected the contention of the insurance company and awarded a total compensation of Rs. 1,91,34,208/- and directed the insurance company to indemnify the owner of the BMTC bus by depositing the entire compensation amount.

Being aggrieved by the quantum of compensation awarded by the Tribunal the claimants have filed M.F.A. No. 2156/2013 for enhancement of the compensation. Whereas the insurance company filed M.F.A. No. 1464/2013 questioning the liability fastened on it to pay the compensation.

We have heard the submission made by the learned counsel appearing for the claimants, learned counsel appearing for BMTC and the learned counsel appearing for the insurance company. Perused the records.

During the course of argument, the counsel for the BMTC has submitted that the award came to be passed without giving an opportunity to the BMTC to lead their evidence and if for any reason the appeal filed by the insurance company is allowed and the BMTC is directed to satisfy the award amount, it would be put to great hardship since the award amount runs into crores of rupees. Further, the learned counsel would submit that generally as soon as the insurance company receives a notice from the Claims Tribunal, the insurance company itself takes the responsibility of engaging the counsel for BMTC and it is under that belief the BMTC did not engage a separate counsel being unaware of the conflicting interest between the BMTC and the insurance company. Therefore, the learned counsel sought to set aside the award and direct the Tribunal to provide an opportunity to the BMTC of being heard in the matter and dispose of the claim petition afresh.

Having heard the submissions made by the learned counsel appearing for the parties, particularly that of learned counsel appearing for BMTC and having gone through the order sheet, the point that would arise for our determination is as under:

"Whether the impugned judgment and award call for our interference in order to give an opportunity to BMTC to contest the matter?"

Admittedly, respondent No. 2 the so called driver of the BMTC bus was placed ex-parte before the Tribunal. The order sheet discloses that the BMTC appeared through its counsel when the trial of the case was almost concluded. BMTC has not cross-examined any of the witnesses examined on behalf of the claimants. Nor the BMTC led the evidence. On the other hand, the driver of the BMTC bus has been examined by the insurance company. The defence of the insurance company is that when the accident occurred, the bus which was abandoned by the driver of the bus was being driven by a sweeper having no licence and thereby the accident occurred. The evidence is also placed on record by the insurance company in order to establish the same. The amount awarded by the Tribunal is a huge amount which runs into crores of rupees. As rightly submitted by the learned counsel, if for any reason the liability fastened on the insurance company is set aside and the BMTC is directed to satisfy the award, the BMTC would be put to great hardship. It is a case where the interest of BMTC and the insurance company is conflicting. In that case, the Tribunal ought to have permitted the BMTC to purforth their contention and BMTC ought to have been permitted to cross-examine the witnesses examined by the claimants and the insurance company Of course, there is also lapse on the part of the BMTC for the reason that they did not make any sincere attempt to appear and participate in the proceedings after receipt of a notice from the Claims Tribunal. But, we find an element of truth in the submission made by the learned counsel for the BMTC that generally the insurance company takes the responsibility of defending the claims filed against BMTC by engaging a counsel. But, here in this case on account of conflicting interest the insurance company did not do so. In that case, the insurance company ought to have informed the same to BMTC. Be that as it may, no prejudice would be caused either to the claimants or to the insurance company, if an opportunity is given to the BMTC to participate in the proceedings and defend their interest effectively.

For all these reasons, both the appeals are disposed of The judgment and award dated 21.11.2012 in MVC No. 5905/2010 on the file of the MACT and XXI Additional Small Causes Judge, Bangalore is hereby set aside. The matter is remanded to the Tribunal with a direction to dispose of the matter afresh after providing opportunities to all the parties to putforth their contentions.

The parties are directed to appear before the Tribunal on 25.01.2016 at 11.00 a.m. without waiting for the notice from the Tribunal.