Roopesh and Others vs Rangaiah and Others

Rathnakala, J.

Since both these appeals are directed against the judgment and award dated 30.10.2010 passed by the Presiding Officer, Fast Track Court-III and M.A.C.T., Mysore in M.V.C. No. 23/2008, they are taken together for consideration.

Facts briefly stated:

On 9.8.2007, while the appellant and his sister were proceeding on the motor cycle bearing No.KA-11/R-6074 on Mysore-Malavalli Road between Nenanur-Nanjangowdanadoddi gate, the offending vehicle/motor bike registration No. KA-02/EG-8701 driven by its rider in a rash ad negligent manner came from opposite side and dashed against the vehicle of the appellant. Due to the impact, he fell down along with the pillion rider and sustained injuries. He was shifted to government hospital Malavalli and from there to M.S. Ramaiah Hospital, Bangalore. He suffered head injury and lost memory. Due to his disability, the brother of the victim filed a petition as his next friend under Section 166 of the Motor Vehicles Act, seeking compensation of Rs. 36,80,000/-.

The petition was contested by the owner and the insurer of the vehicle. On an overall consideration of the material placed by the parties and after giving audience to them, the Tribunal allowed the petition by awarding compensation of Rs. 5,85,400/- with 6% interest per annum payable by the owner of the offending vehicle.

The claimant/injured being aggrieved by the inadequacy of compensation awarded by the Tribunal has filed M.F.A. No. 6848/2011 whereas, the owner of the offending vehicle challenging the liability has filed M.F.A. No. 1401/2011.

Sri. Venkatesh Babu, learned Counsel appearing for the appellant/claimant in M.F.A. No. 6848/2011 submits, the appellant is suffering from permanent disability to an extent of 90%; though enough of documentary proof was placed before the Tribunal, less compensation is awarded. He had undergone surgery and his family had spent sufficiently towards his treatment. Compensation towards future medical expenses is not granted. He was earning to a tune of Rs. 6,000/- per month by his mason work. Only a meager amount of Rs. 20,000/- is awarded towards loss of income during laid up period. The compensation awarded is too low compared to the permanent disability of 90% suffered by him and the compensation may be enhanced by just and reasonable amount.

In reply, Sri. N. Gopalakrishna, learned Counsel appearing for the appellant of M.F.A. No. 1401/2011/owner of the insured vehicle submits that the rider of the alleged offending vehicle though was having a valid driving licence at the time of the accident, the Tribunal wrongly concluded that he did not possess valid driving licence, only on the basis that he was charge sheeted by the jurisdictional Police under Section 3 read with Section 181 of Motor Vehicles Act. It was the onus of the Insurance Company to produce evidence that the rider of the vehicle did not possess driving licence. Hence, absolving the insurer from his liability was erroneous. In fact, the clamant was carrying two adult pillion riders and the entire negligence ought to have been attributed to the claimant himself for violating the statutory provisions. The negligence of the claimant was overlooked by the Tribunal. There were no eye-witnesses to the accident. The owner of the motor cycle bearing No.KA-11/R-6074 was a necessary party to the proceeding and he was vicariously liable to answer the claim. The claimant had failed to prove the nature of injuries, treatment taken and subsisting disability by examining the Doctor who treated him. The compensation awarded is exorbitant. Since the accident has occurred due to the negligence on the part of the claimant only, the owner may be exonerated from the liability to pay the compensation.

After arguing for some time, both learned Counsels admit that they were unable to produce sufficient evidence to substantiate their respective stand before the Tribunal; while the claimant did not examine the eyewitness to the incident and could not produce his driving licence, the owner of the vehicle had not placed on record that the driver of the offending vehicle bearing No. KA-02/EG-8701 had valid licence to establish that, his Insurance Company alone was liable to pay the compensation.

In the light of the submissions made at the Bar, we are of the considered opinion that the matter needs to be remanded for affording opportunity to both parties to produce additional evidence in support of their case.

Accordingly, both the appeals are allowed.

The judgment and award dated 30th October 2010 passed by the Presiding Officer, Fast Track Court-III and M.A.C.T., Mysore, in M.V.C. No. 23/2008, is hereby set aside.

The matter is remanded to the Tribunal with a direction to permit both parties to adduce their evidence/rebuttal evidence, if any application is filed by them to that effect.

The Tribunal is directed to dispose of the application filed by the parties within a time frame of four months from the date of appearance of the parties.

Without waiting for any notice from the Court, the parties are directed to appear before the concerned Tribunal on 25 May 2015 at 11.00 a.m. either personally or through their Counsel and collect the further date of hearing.

Office is directed to transmit the records to the Tribunal forthwith.

I.A. No. 1/2014 filed for amendment of appeal memo does not survive for consideration. Accordingly, it is disposed of as having become infructuous.

Amount deposited by the appellant/owner in M.F.A. No. 1401/2011 shall be refunded to him through his Counsel, forthwith.