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Judgment
N.K. Patil, J.—Though this matter is posted for Admission, the same is taken up for final disposal, with the consent of the learned counsel appearing for the parties.
This appeal by the Insurance Company is directed against the judgment and award dated 3rd July 2013, passed in MVC No. 845/2010, by the Member, Principal Motor Accident Claims Tribunal and Chief Judge, Court of Small Causes, Bangalore, (for short, ''Tribunal'') seeking to modify the impugned judgment and award, fixing reasonable contributory negligence on the part of the deceased rider of the motor cycle and also for reduction of compensation on the ground that, the income assessed by Tribunal is disproportionate to the source of income of the deceased and adding 50% towards future prospects of the deceased cannot be sustained.
On account of the death of the deceased Girish S. Asrani in the road traffic accident, the claimants, who are none other than the parents and wife of the deceased filed the claim petition before the Tribunal, seeking compensation of a sum of Rs. 25.00 lakhs against the owner and Insurer of the offending Bus. The said claim petition had come up for consideration before the Tribunal on 3rd July, 2013. The Tribunal, after considering the relevant material available on file and after appreciation of the oral and documentary evidence, allowed the claim petition in part, awarding compensation of a sum of Rs. 59,96,192/- with interest at 6% per annum, from the date of petition till the date of realization and directed the appellant/Insurer of the offending Bus to indemnify the award. Being aggrieved by the quantum of compensation and also directing the Insurer alone to indemnify the award, without fixing reasonable contributory negligence on the part of the deceased rider of the Motor Cycle, the appellant/Insurer has presented this appeal, seeking to modify the impugned judgment and award passed by Tribunal, by fixing reasonable contributory negligence on the part of the deceased rider of motor cycle and also to reduce the compensation substantially.
We have heard learned counsel appearing for appellant/Insurer and learned counsel appearing for claimants/respondents 1 to 3 and learned counsel appearing for owner/respondent No. 4.
Learned counsel appearing for appellant/Insurer vehemently submitted that the finding of the Tribunal without considering negligence or contributory negligence on the part of the deceased is contrary to law and material on record since the Tribunal failed to notice and appreciate that the deceased who was riding his two wheeler was trying to overtake the Bus in question from left side which was evident from Exs. P-1 and P-4. Further, the Tribunal failed to notice that complainant who was a Police Constable admittedly was not an eye witness and went to spot only after the accident and found that the motor cycle was struck under rear left wheel of the Bus and as such alleged accident was due to pure negligence on the part of the deceased rider of the two wheeler who had ventured to over take long chassis Bus from left side, contrary to road regulations and rules.
He further submitted that, even otherwise, the Tribunal grossly erred in taking the income of deceased at Rs. 30,501/- per month after certain deductions in the absence of convincing material/evidence and also considering future increment at the rate of 50% in the absence of pleading and proof in respect thereof despite examination of PW 2. Further, the Tribunal ought to have seen that the specific evidence of father of deceased, examined as PW 1, was that his son was married to 3rd claimant and his daughter-in-law had deserted his son and did not turn up for cremation also and as such 3rd claimant who failed to make her claim before it was not dependent on alleged income of deceased and as such deduction towards personal and living expenses of deceased should have been 1/2 instead of 1/3rd since deceased and his parents were residing separately at different places and further multiplier should have been ''11'' based on the age of the mother of deceased who claimed to be aged 55 years instead of ''16'' adopted by Tribunal based on the age of deceased.
He also submitted that the compensation awarded under the head, loss of consortium by the Tribunal is not warranted as the wife of deceased/third claimant, has deserted the deceased prior to alleged mishap and that an amount of Rs. 50,000/- awarded towards medical expenses by the Tribunal is also not warranted since no medical bills were produced and that the said expenses was met by employer of deceased. Therefore, the impugned judgment award passed by Tribunal is otherwise opposed to law, facts and circumstances of the case and liable to be modified by fixing reasonable contributory negligence on the part of the deceased rider of motor cycle and reducing the compensation substantially.
In reply, learned counsel appearing for Respondents 1 to 3/claimants sought to substantiate the impugned judgment and award passed by tribunal, stating that the same is passed after due appreciation of the oral and documentary evidence available on file and after taking into consideration the age avocation and also year of accident and hence, interference in the same is uncalled for.
To substantiate the said submission, he has taken us through the evidence of PW 1 and submitted that in spite of giving sufficient opportunity, the appellant/Insurer has not chosen to produce any rebuttal evidence to prove the contributory negligence against the deceased nor examined the witnesses in support of their case nor examined the driver of the Bus. Therefore, in the absence of all these aspects, the Tribunal, after appreciating the evidence of PW 1 and documentary evidence at Exs. P1 to P5, i.e. FIR, spot mahazar, spot sketch, IMV report and charge sheet, has recorded a specific finding of fact, holding that the accident occurred on the sole negligence on the part of the driver of the Bus insured with the appellant/Insurer. The reasoning given by Tribunal for fastening the entire negligence on the part of the driver of the Bus is just and proper and it does not call for interference by this Court.
However, since PWs. 1 and 2 have not stated anything about the future prospects of the deceased in their evidence, he fairly submitted that he has no objection for setting aside the impugned judgment and award passed by Tribunal and remanding the matter back to Tribunal for consideration afresh, in accordance with law.
After careful consideration of the submission of the learned counsel appearing for the parties, the impugned judgment and award passed by Tribunal and the facts and circumstances of the case, it emerges that occurrence of accident at about 12:10 P.M. on 26-09-2009 near Kodihalli gate junction between the Motor cycle ridden by deceased and the BMTC Bus bearing registration No. KA-01/FA-251, and the resultant death of deceased Girish S. Asrani are not in dispute.
It is the specific case of the appellant/Insurer that the Tribunal is not justified in fixing the entire negligence on the part of the appellant/Insurer without fixing any contributory negligence on the part of the deceased rider of the motor cycle for the reason that, as per Exs. P1 to P4, the deceased rider of the motor cycle was trying to over take the Bus in question from left side. Without properly appreciating the said documentary evidence and contrary to the same and without framing necessary issues regarding contributory negligence, the Tribunal has fixed the entire negligence on the part of the appellant/Insurer. Therefore, it is a matter for reconsideration by the Tribunal.
After perusal of the entire material available on file, it emerges that the reasoning given by Tribunal for fixing the entire negligence on the appellant/Insurer is contrary to the oral and documentary evidence available on file and further adding 50% towards future prospects of the deceased is also not supported by credible oral and documentary evidence. Therefore, we are of the view that the same requires further consideration by Tribunal, after appreciation of the oral and documentary evidence.
Therefore, without expressing any opinion on the merits or demerits of the case, it would suffice for this Court if appropriate direction is issued to the Tribunal to reconsider the matter and dispose of the same afresh, to meet the ends of justice and to safeguard the interest of the parties and also having regard to the fact that the accident is of the year 2009 and dependents are none other than the parents and wife of the deceased.
In the light of the discussion made above, the appeal filed by the appellant/Insurer is allowed.
The impugned judgment and award dated 3rd July 2013, passed in MVC No. 845/2010, by the Member, Principal Motor Accident Claims Tribunal and Chief Judge, Court of Small Causes, Bangalore, is hereby set aside;
The matter stands remanded back to Tribunal for reconsideration of the matter afresh and to pass appropriate order, in accordance with law, after affording reasonable opportunity of hearing to the parties concerned, personally or through their counsel and dispose of the same, as expeditiously as possible, not later than six months from the date of appearance of parties;
Without waiting for any notice from the Tribunal, the parties are directed to appear before the jurisdictional Tribunal on 02-12-2015, at 11:00 A.M. personally or through their counsel and collect further dates of hearing.
Parties are permitted to file necessary application/s, for adducing additional evidence, oral/documentary, to substantiate their respective cases within four weeks from the date of receipt of a copy of this judgment;
In case such application/s is/are filed by the learned counsel for the parties, within the time stipulated above, the Tribunal is directed to receive the same and proceed further and dispose of the same as expeditiously as possible, in compliance of the direction given by this Court, as above;
Registry is directed to return the entire original records to the jurisdictional Tribunal, forthwith.
All the contentions urged by all the parties are left open.
Further, the amount in deposit in this appeal shall be transmitted to the jurisdictional Tribunal, forthwith and the jurisdictional Tribunal, in turn, is directed to invest the same in any nationalized or scheduled Bank, until a final judgment and award is passed by Tribunal, after remand;
It is made clear that if any amount is already withdrawn by the claimants, the same would be subject to the judgment to be passed by the jurisdictional Tribunal, after remand.