Smt. Revathi and Another vs Smt. Kiran P. Suvarna and Another

N.K. Patil, J.—This appeal by the Appellants is directed against the impugned judgment and award dated 5/11/2005 passed in MVC No.

692/2002 by the Prl. Civil Judge (Sr. Dn) and Member, Motor Accidents Claims Tribunal-IV, Mangalore, (hereinafter referred as ''Tribunal'' for

short),.

The Tribunal by its judgment and award has dismissed the claim petition filed by the Appellants. Being aggrieved by the same, Appellants have

presented this appeal.

In brief, the facts of the case are:

The Appellant No. 1 is the wife and Appellant No. 2 is the mother of the deceased Sri Ramachandra and they have filed a claim petition before the

Tribunal u/s 166 of M.V. Act, claiming compensation on account of the death of the deceased in the road traffic accident, contending that, on

21.10.2001 at about 6.30 P.M. the deceased was walking on the extreme side of the mud portion of the NH17 at Jappinamogaru in Mangalore

Taluk and at that time, one Maruti Omni Van bearing No. KA.19.N.4461 came with high speed in a rash and negligent manner from Kasaragod

side on the extreme side of the road and hit the deceased, as a result of which, he sustained grievous injuries. Immediately, he was taken to

Government Wenlock Hospital, wherein he has taken treatment as inpatient and he succumbed to the injuries in the hospital on 15.11.2001. It is

the further case of the Appellants that, the deceased was aged about 48 years, hale and healthy, working under Damodhar Rama Baliga,

Wholesale Grocery Merchants, Bunder, Mangalore, and earning Rs. 5,000/- per month and looking after the welfare of the family and due to his

untimely death they have suffered socially and financially. The claimants have not impleaded the owner of the bus bearing No. KA.19.C.7877. The

said claim petition had come up for consideration before the Tribunal. The Tribunal after assessing the oral and documentary evidence and other

materials available on file, has dismissed the claim petition holding that the driver of the Maruti Omni van bearing No. KA.19.N.4461 was not

involved in the accident and inspite of giving sufficient opportunity to the Appellants, they have not examined the Investigating Officer, the Doctor

who has treated the deceased in the hospital and also the Doctor who has conducted the postmortem Against the said judgment and award passed

by the Tribunal, the Appellants have presented this appeal.

We have heard the Learned Counsel appearing for the Appellants Sri. P. Karunakar and Learned Counsel for Insurer Sri. A.M. Venkatesh.

After careful perusal of the materials available on record at threadbare, including the impugned judgment and award passed by the Tribunal, it

emerges that, the Tribunal has committed an error of law and material irregularity in dismissing the claim petition filed by the Appellants, without

assessing the oral and documentary evidence available on file and without going through the root cause of the accident. If the counsel who has

represented the claimants has not impleaded the driver, owner and insurer of the bus bearing No. KA.19.C.7877, not examined the Investigation

Officer, the Doctor who has treated the deceased, and also the Doctor who has conducted the postmortem, it is not a ground for the Tribunal to

dismiss the petition The Tribunal ought to have taken the judicial note of this aspect, might have issued the notice calling the Investigation Officer

and the Doctor who has conducted the postmortem for examination and then it ought to have decided the matter on merits. If there is any failure on

the part of the counsel who represented the claimants, it does not take away the legitimate rights of the claimants. Therefore, we are of the

considered view that, at any stretch of imagination, the impugned judgment and award passed by the Tribunal is sustainable and is liable to be set

aside and matter requires reconsideration afresh by the Tribunal.

Therefore, without going further into the merits and demerits of the case, the instant appeal filed by the Appellants stands disposed of, with the

following directions:

(i) The appeal filed by the Appellants is allowed in part.

(ii) The impugned judgment and award dated 05.11.2005 passed by the Tribunal in MVC No. 692/2002 is hereby set aside and matter stands

remitted back to the Tribunal for reconsideration afresh, with a direction to pass appropriate orders, in strict compliance of the relevant provisions

of the M.V. Act, bearing in mind the well settled law laid down by the Apex Court and this Court in hosts of judgment and also after permitting the

claimants to implead the driver, owner and insurer of the bus bearing No. KA.19.C.7877 and dispose of the same, as expeditiously as possible, at

any rate, within a period of six months from the date of receipt of a copy of this judgment and award or from the date of filing of necessary

application by the counsel for the claimants whichever is earlier.