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Judgment
B.S. Indrakala, J.—Though the matter is posted for admission, with the consent of the learned Counsel for both parties, the same is taken up for final disposal. The above appeal is preferred against the judgment and award dated 8.12.2009 passed in MVC No. 827/2007 on the file of the Court of FTC and Addl. MACT, Kundapura by the insurer - 2nd respondent.
It is the case of the claimant that on 14.5.2007 at about 3.00 PM while he was proceeding on his motor cycle bearing Regn. No. KA-15-H-9159 from Allerika side towards Murdeshwara side, near Bhaskeri of Honnavara Taluk, the autorickshaw bearing Regn. No. KA-47-21 being driven by its driver in rash manner, coming from Gerusoppa side towards Honnavara turned all of a sudden towards right side of the road and in that process dashed against the motor cycle of the petitioner causing the accident. Further, it is contended that on account of the said accident, the claimant fell from the motor bike, sustained grievous injuries. The tribunal considering the evidence led in by the parties, deemed it fit to award a sum of Rs. 4,12,400/- with interest @ 6% p.a. only on the sum of Rs. 1,41,200/- from the date of petition till realisation against both respondents 1 and 2 making them jointly and severally liable to pay the same.
The respondent/insurer being aggrieved by the said judgment and award preferred the above appeal inter-alia contending amongst other grounds that as the petition as against 1st respondent - owner of the vehicle was dismissed for non-prosecution the insurer is also not liable to satisfy the award and seeks setting-aside of the judgment and award against it. In this appeal also, notice is taken to the owner of the vehicle by way of substituted service and inspite of such service, owner is not represented. On perusal of the records, in particular, the impugned judgment it is seen that as contended to by the counsel for the appellant-insurer, the case against the owner of the vehicle is dismissed for non-prosecution; but, while disposing, off the case on merits the tribunal being oblivious of such dismissal of the petition as against 1st respondent, awarded compensation of Rs. 4,12,400/- making both respondents 1 and 2 jointly and severally liable, which is prima facie improper. Thus, once having dismissed the petition against 1st respondent, the tribunal ought not to have directed the 1st respondent owner and also 2nd respondent insurer to pay the said compensation. Further, it is seen that as the petition is dismissed against 1st respondent - owner of the vehicle, 2nd respondent is not liable to satisfy the award on its own as the liability with regard to the insured himself seizes to exist. Thus, the impugned judgment and award prima facie is liable to be set-aside. However, considering the nature of the proceedings, in particular, the basis on which the claim petition is filed, if, further opportunity is provided to the claimant to take necessary steps for effective service of notice on the owner of the vehicle, the matter can be adjudicated upon more effectively on merits. Hence, the following:
ORDER
The appeal is allowed by setting-aside the impugned judgment and award dated 8.12.2009 passed in MVC No. 827/2007 and the matter is remanded to the tribunal with a direction to provide further opportunity to the claimant to take further steps to serve notice on the owner of the vehicle viz., 1st respondent before the tribunal.
The tribunal is directed to dispose of the matter within 6 months from the date of receipt of copy of this judgment by giving Court notice to all the parties concerned. Tribunal is at liberty to consider all the grounds that is likely to be urged by both the insurance company as well as owner of the vehicle.
Amount in deposit is ordered to be refunded to the appellant.
Office to transmit the records to the tribunal forthwith.