Roopesha B. vs A. Sumangala and H.G. Veerappa

B.S. Indrakala, J.—Though the matter is posted for Admission, with the consent of the learned Counsel for appellant and respondent No. 2, the same is taken up for final disposal. The above appeal is filed challenging the judgment and award dated 10.10.2008 passed in MVC No. 520/03 on the file of the Additional Civil Judge (Sr. Dn.) & Addl. MACT, Mysore.

For the sake of convenience, the parties herein are referred to by their respective rank as arrayed before the Tribunal.

The claimant preferred the said case contending that on 16.5.2003 at 9.05 a.m., while she was proceeding on Kinetic Honda Scooter bearing registration No. KA 09 E 9697 to her place of work, i.e., to the bus stand to catch bus to Mandya, the 1st respondent riding the motor bike bearing registration No. KA 17 K 8060 from CFTRI School towards Dhobi Ghat came in a rash manner and while claimant was proceeding near Mysore Akashvani, the said vehicle came and dashed against her scooter and caused the accident, on account of which, she fell and sustained injuries and thereafter she was admitted to Railway Hospital where she underwent surgery and skin grafting. In the circumstances, she filed the claim petition seeking compensation from the driver and owner of the said vehicle.

The owner of the vehicle remained absent and was placed ex-parte, whereas the driver of the vehicle contested the case denying the case of the claimant on all material aspects that too specifically denying the cause of accident and further contending that the he was not the rider of the said motor bike during the relevant time and sought dismissal of the petition.

The claimant to prove her case, apart from examining herself as P.W. 1 also chose to examine the Medical Officer, who assessed her disability as P.W. 2 and got marked Exs. P.1 to 14 and on behalf of the respondents, no evidence whatsoever is adduced.

Considering the evidence so adduced, the Tribunal deemed it fit to award a sum of Rs. 72,150/- with interest at the rate of 8% p.a. from the date of petition till realisation.

Aggrieved by the said judgment and award, the driver of the vehicle/respondent No. 1 is in appeal inter-alia contending amongst other grounds that the impugned judgment and award passed by the Tribunal are arbitrary and illegal; the Tribunal committed an error in holding that the accident occurred on account of the rash driving of Hero Honda Bike bearing registration No. KA 17 K 8060 and failed to note that no specific case is made out by the claimant and it was the appellant, who was riding the vehicle and merely because the claimant was not cross-examined, it cannot be said that the appellant caused the accident; it is also contended that sufficient opportunity was not given to the appellant to rebut the case of the claimant and seeks setting aside of the impugned judgment and award.

Learned Counsel for the appellant submitted that basically the appellant was not the rider of the vehicle; he was acquitted in the criminal case and while passing the judgment, in the criminal proceedings an observation is also made by the Tribunal that the prosecution failed to establish that the appellant/1st respondent was the rider of the vehicle. Further he submitted that the appellant being the resident of Bangalore was unable to follow up the case before the Tribunal personally and file a copy of the said judgment so passed on the file of Criminal Court. In the circumstances, he submits that the matter may be remanded for fresh adjudication.

Counsel appearing for the alleged owner of the vehicle viz., 2nd respondent in this appeal also submits that as on the date of accident, he was not at all the owner of the vehicle; he parted with the vehicle 3 years prior to the date of accident; he further submits that the owner of the vehicle/2nd respondent before the Tribunal was not at all served with any notice of the proceedings either before the Tribunal or before the Court of the Magistrate in the criminal case and as he sold the vehicle prior to the 3 years and as such, he was totally unaware of the proceedings. Further he submits that he does not know the alleged rider of the vehicle/appellant herein. In the circumstances, he submits that the matter may be remanded to the Tribunal for fresh adjudication.

Thus it is seen before the Tribunal that both the respondents having failed to make use of an opportunity given to them to conduct their respective case in accordance with the procedure established and having slept over the matter before the Tribunal, both in unequivocal terms seek remanding of the matter for fresh adjudication. In this regard it is to be seen that on the basis of the evidence available whatever judgment passed by the Tribunal does not call for any interference, the laches on the part of the respondent in conducting the case resulted in rendering the impugned judgment. However, the same does not mean that the aggrieved persons have to be deprived of their legitimate right to put forth the facts, if their case in accordance with law, but, considering the callous nature of the respondents in conducting the case before the Tribunal, it is proper that they may be provided an opportunity by imposing costs on them.

Thus though the impugned judgment and award dated: 10.10.2008 passed in MVC No. 520/03 on the file of the Additional Civil Judge (Sr. Dn.) & MACT, Mysore, on the basis of the evidence available on record does not call for any interference, only to meet the ends of equity, the said judgment and award are hereby set aside by allowing the appeal on payment of costs of Rs. 5,000/- each on both the respondents before the Tribunal which shall be deposited before the Tribunal within 8 weeks here from, which sum shall be paid to the claimant. Thus the matter is remanded to the jurisdictional Tribunal with a direction to adjudicate the matter afresh by giving an opportunity to respondent Nos. 1 and 2 and also to the petitioner to file their pleadings, documents and adduce further evidence and also by permitting them to cross examine P.W. 1 and dispose of the matter within 6 months from the date of receipt of a copy of this judgment.

As both the appellant and respondent No. 2 are duly represented, they are directed to appear before the Tribunal on 20.12.2013 and no fresh notice of transfer need be given to them.

However, as the claimant remained absent in the appeal, the Tribunal is directed to issue Court Notice to her about remanding of the case.

The amount in deposit, if any, is also directed to be refunded to the appellant.

In view of the disposal of the case itself, considering I.A. 1/2008 does not arise.