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Judgment
These review petitions are taken up together for disposal since they arise out of the common judgment dated 24th July, 2015 passed by this Court in M.F.A. No. 5746 of 2009 connected with M.F.A. No. 5747 of 2009 and M.F.A. No. 5745 of 2009 filed by the aggrieved appellants/claimants. Said appeals preferred by the review petitioners against the common judgment dated 24-4-2009 passed in M.V.C. Nos. 885, 886 and 887 of 2004 on the file of the Civil Judge (Senior Division) and Additional Motor Accident Claims Tribunal, Karkala (''the Tribunal'' for short) are dismissed. The claim petitions filed by the review petitioners herein under Section 166 of the Motor Vehicles Act, 1988 in respect of the injuries suffered by them in a road traffic accident that occurred on 18-5-2004 and also in respect of the claim petition filed for compensation on the death of one Divakar Shetty, since rejected by the Tribunal, claimants were in the appeal brought before this Court, which ultimately came to be dismissed.
Sri Sampath Anand Shetty, learned Counsel appearing for the review petitioners submits that, it was an accident involving a Tempo Trax bearing Registration No. KA-20/7981 and a Santro Car bearing Registration No.MH-25/A-2182. The claimants were inmates of the Santro Car. The claim petitions were rejected by the Tribunal mainly on the ground that the driver of the Santro Car/Divakar Shetty himself was responsible for the accident. This Court among other things during the course of discussion observed that: " Moreover the claimants have not sought any relief against the owner and insurer of the Santro car............" which is patently an erroneous observation. In fact, the owner and insurer of the Santro car were arrayed as respondents 3 and 4 and had sought relief against them also. Even if it is to be held that the deceased Divakar Shetty, who was driving the Santro car was responsible for the accident, the claimants, who were injured in the accident and the dependants of deceased Divakar Shetty, were entitled to seek compensation from any of the Joint Tort Feasors, in the light of the judgments of the Apex Court in T.O. Anthony v. Karvarnan (2008) SCC 748 and Andhra Pradesh State Road Transport Corporation v. K. Hemalatha (2008) 6 SCC 767 and in the matter of Pawan Kumar v. Harkishan Dass Mohan Lal (2014) 3 SCC 590. The injured claimants need not establish the extent of liability of each of the wrong doer separately. The observation of this Court that no relief is sought against respondents 3 and 4 since erroneous and not in accordance with the principles laid down in the judgments cited supra, the claimants are entitled for compensation and this Court may allow the review petitions by setting aside the common judgment dated 24-7-2015 and allow the said appeals by awarding just and reasonable compensation payable by any of the respondents-Joint Tort Feasors.
Sri B.C. Seetharama Rao, learned Counsel for respondent 2-insurer of the Tempo Trax submits that, as could be seen from the claim petitions, the owner and driver of the Tempo Trax were arrayed only as formal party and no relief was sought against them. The Tribunal dismissed the claim petitions on noticing that the accident was due to rash and negligent driving of the Santro Car but not on account of Tempo Trax. Tire driver of the Tempo Trax-R.W. 1 examined on behalf of the insurer of the Tempo Trax before the Tribunal deliberately attempted to assist the claimants to make unlawful gain. The observation made during the course of discussion by this Court does not amount to error on the face of record, which would attract the review jurisdiction of this Court. Hence, these review petitions are liable to be rejected.
Sri K.K. Vasanth, learned Counsel for respondent 3-insurer of the Santro Car submits that if the review petitions are to be allowed and the order dated 24-7-2015 is to be recalled, the claim of the appellants cannot be adjudicated for the first time in the appeals and the matter requires to be remanded for fresh consideration to the Tribunal.
In the light of the above submissions, we have given our anxious consideration to the contentions advanced for the parties. From the claim petitions, we notice, that it was categorically stated that first respondent-driver and owner of the Tempo Trax and the second respondent being its insurer are jointly and severally liable to pay compensation to the claimants. Further, it was averred that "by way of abundant caution, the petitioners have made the owner and insurer of the Santro Car (respondents 3 and 4 respectively) also as parties to the application". However, in the prayer column the relief was sought thus- " against the respondents 1 and 2 or such of the respondent as this Hon''ble Tribunal finds liable ".
Though there was no specific allegation against the driver and owner of the Santro car and no specific relief was sought against the owner and insurer of the Santro car, fact remains that they are arrayed as parties and relief is sought against all the respondents including the owner and insurer of the Santro car, if we may say so hesitantly. The matter involves the claim of the minor also. Hence, we uphold the contention of the petitioners that "... observation made in the body of the order dated 24-7-2.015 that the claimants has not sought for any relief against the owner and insurer of the Santro Car...." is not founded on the factuality of the matter.
The eventuality of the above discussion is, the judgment dated 24th July, 2015 needs to be set aside and the matter requires a fresh consideration. The Tribunal has non-suited the claimants, among other things, for not seeking compensation from the owner and insurer of the Santro car, which observation is now found erroneous. In that view of the matter, the Tribunal being the fact finding authority is required to reconsider the claim afresh regarding the right of the claimants/inmates of the vehicle in the light of the authorities cited above.
For the reasons stated supra, these review petitions are allowed. The common judgment dated 24th July, 2015 passed by this Court in M.F.A. No. 5746 of 2009 connected with M.F.A. No. 5747 of 2009 and M.F.A. .Mo. 5745 of 2009, is hereby set aside.
M.F.A. No. 5746 of 2009 connected with M.F.A. No. 5747 of 2009 and M.F.A. No. 5745 of 2009 are allowed. The common judgment dated 24-4-2009 passed in M.V.C. Nos. 885 to 887 of 2004 on the file of the Civil Judge (Senior Division) and Additional M.A.C.T., Karkala, is set aside.
The matters are remanded to the Tribunal for fresh consideration in the light of the observation made supra, with a direction to permit both parties to adduce additional evidence/rebuttal evidence, if any application is filed by them to that effect.
The Tribunal is directed to dispose of the cases within a time frame of four months from the date of appearance of the parties.
Without waiting for any notice from the Tribunal, the parties are directed to appear before the Tribunal on 1-6-2016 at 11.00 a.m. either personally or through their Counsel and collect the further date of hearing.
Registry is directed to transmit the lower Court records to the Tribunal forthwith.