Sujatha vs K.N. Ranganath

K.L. Manjunath, J.—These two matters arise out of the Judgment & award passed by Senior Civil Judge & JMFC, Kunigal, in MVC No. 736/2008 dated 3rd April, 2005, MFA No. 386/2013 is filed by the claimants seeking enhancement of the compensation. MFA No. 8344/2012 is filed by the Insurance Company questioning the liability and the quantum of compensation awarded by the tribunal. Therefore, these two matters are heard together.

The admitted facts are as hereunder:--

"The claimants are the widow and the parents of one Uday Shankar who is alleged to have sustained grievous injuries in an accident said to have occurred on 11-3-2008 at about 8.45 p.m. on National Highway No. 48, B.M. Road, in front of Lupith Dhabha, Kunigal town, on account of the rash and negligent driving of KSRTC bearing No. KA-06-A 3933. According to the claimants the deceased Uday Shankar was walking on the left side of the road. When he was in front of Lupith Dhaba, a lorry in question came in a rash and negligent manner and dashed against Uday Shankar as a result of which he sustained injuries. He was immediately shifted to PHC Kunigal, hospital and thereafter to Victoria hospital, Bangalore for a better treatment and he succumbed to the injuries.

According to the claimants the deceased was aged 28 years and earning Rs. 15,000/- per month as Manager working in Gokul Milk Dairy.

The owner of the vehicle did not contest the case and he remained absent. The 2nd respondent contended that the accident did not occur due to the rash and negligent driving of the lorry and the driver of the lorry was not involved in the accident and therefore he requests the Court to dismiss the petition.

The tribunal considering the evidence let-in by the parties held that the accident occurred due to the rash and negligent driving of the driver of the lorry and that the claimants in all entitled for a compensation of Rs. 4,38,000/-. Aggrieved by the liability saddled by the Insurance Company holding the vehicle in question was involved the Insurance Company has filed separate appeal and the claimants have filed separate appeals. Therefore these two matters are heard together."

The main contention of the Insurance Company before us is that the vehicle in question was not involved in the accident. According to him, a two wheeler had dashed against the deceased and on account of the same he sustained injuries, since the owner of the lorry is the close relative of the claimants as an after-thought the vehicle has been falsely implicated and that all the witnesses are closely related to the claimants and the evidence of P.Ws. 1 to 3 could not have been believed by the Court.

It was contended by the Insurance Company that if really the vehicle in question was involved in the accident when the deceased was shifted to hospital at PHC hospital, Kunigal, the cause of accident would be noted in the Medico Legal Case register and it is for the claimants to prove the involvement of the lorry by summoning the medico legal register maintained by the Government hospital Kunigal since the same is not summoned and produced an adverse inference has to be drawn against the claimants.

Having heard the learned counsel appearing for the parties on the question of involvement of the vehicle, as there is a doubt about the involvement of the vehicle we had directed the learned Government Advocate to secure the Medico Legal Register maintained by the Kunigal hospital. Accordingly, it is produced before us. There is an entry in regard to the treatment given to one Uday Kumar. There is also an entry to show that an entry is made in the Medico Legal Register as if a Xerox copy of the entry was obtained by the brother of the deceased in the year 2011. But there is no reference with regard to the patient referring from the hospital to Victoria hospital or for other hospital for a better treatment. In the absence of giving an opportunity to both the parties to consider their case, we are of the view that it would be inappropriate to give a finding whether the vehicle in question was involved or not. In the circumstances, we are of the view that the matter has to be remanded to the tribunal for fresh consideration to give an opportunity for both the parties to lead any further evidence and summon the documents from the Government hospital and thereafter the tribunal shall dispose of the case on merits in accordance with law.

In the result both the appeals are disposed off. The Judgment & award passed by the Senior Civil Judge & JMFC, Kunigal, are hereby set aside. The matter is remanded to the tribunal for fresh consideration in accordance with aw.

The parties shall appear before the tribunal on 12th January, 2014.