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Judgment
Rathnakala, J.—These appeals are preferred challenging the common judgment and award passed by the Tribunal, whereby the insurance company is made liable to pay compensation along with the owner of the vehicle to the legal heirs of the deceased in respect of the vehicular accident dated 25.6.2011 at Kana katla, Iddya Village, Mangalore.
Briefly stated:
Consequent upon the death of two young men namely Manjesh Kumar M and Ramesh in the above stated vehicular accident in M.V.C. No. 1355/2011 and M.V.C. No. 1273/2011 under section 166 of the MV Act (herein after referred to as the ''Act'') came to be filed by their respective parties/parents. It was the case of the petitioners of M.V.C. No. 1355/2011 (mother of deceased Manjesh Kumar M.) that on 25.6.2011 the deceased was proceeding on the motor cycle bearing registration No. KA-19-X-8794-along with Ramesh Kumar S. as pillion rider from MRPI, towards Surathkal, near Praveen garage at Kana Katla, Iddya Village, Mangalore; the driver of the offending vehicle/tanker lorry bearing registration No. KA-01-AC-7047 came in a high speed in a rash and negligent manner from behind and overtook from the left side and at that time, the right side of the lorry dashed against the motor cycle. As a result, both the rider and the pillion rider were thrown on the road and sustained severe injuries. They were shifted to A.J. Hospital and succumbed in the hospital. Manjesh Kumar M was aged about 26 years at the time of the accident. He was working as an hydrogen operator in the Hydrogen Plant at MRPL, Mangalore, drawing a salary of Rs. 58,759/- per month and was maintaining the family. He was a bachelor.
It was the case of the petitioners of M.V.C. No. 1273/2011 (Parents of deceased Ramesh Kumar S.), that the deceased was aged about 27 years serving as operator in the generator plant at MRPL, Mangalore, drawing a salary of Rs. 71,153/- per month and was maintaining the family. He was a bachelor. The vehicle belonged to the 1st respondent and was insured by the 2nd respondent. Both claims were clubbed and common trial was held PWs. 1 to 4 were examined for the claimants and Exs. P. 1 to P. 34 were marked. The owner though served, remained ex parte. The insurance company though contested, the claim did not adduce rebuttal evidence. However, the copy of the insurance policy was marked as Ex. R1, by consent. It was permitted to take all defense available to the insurer under Section 170 of the Act. After giving audience, the court below passed the impugned judgment and award thereby awarding condensation of Rs. 30,90,000/- to the claimant of M.V.C. No. 1355/2011 and Rs. 30,95,000/- to the claimants of M.V.C. No. 1273/2011.
Assailing the common judgment and award, Sri O. Mahesh, learned counsel appearing for the insurance company submits that admittedly, it was an accident involving two motor vehicles, but the owner and the insurer of the motor bike of which the deceased were traveling are not arrayed as respondents. The tribunal without application of mind and without analyzing the material facts by recording a cryptic finding has held the driver of the tanker lorry solely responsible for the accident. That apart, Sketch-Ex. P8, IMV Report-Ex. P6 apparently indicate that it was the rider of the motor vehicle who overtook the tanker in question - from its left side of the road; at the same time, on observing a vehicle coming from the opposite side, he tried to take his motor cycle to his left side and in that process came under right rear wheel of the tanker for which the driver of the tanker cannot be held responsible. The so called eye witness-PW. 4 examined before the tribunal was a planted witness. He was a witness in the criminal case. His evidence before the tribunal is entirely different from that of the evidence he led in before the criminal court. Though he is a witness to the spot mahazar and also the sketch of scene of occurrence, he has disputed the correctness of these documents, since they are not beneficial to the claimants. There was no conclusive and corroborative evidence about the income of the deceased. In the absence of proper issues being framed by the tribunal, the onus did not shift to the company to prove any of the fact. While calculating the loss of dependency, proper deductions were not made. The multiplier chosen for arriving at the figure for loss of dependency was on the basis of the age of the deceased, whereas in the case of bachelor, the loss of dependency shall be worked out on the basis of the age of the younger parent, that has resulted in grave injustice. The matter requires to be reconsidered by the tribunal, after procuring the owner and insurer of the motorbike on which the deceased were traveling, for evaluating the extent of the negligence contributed by the rider of the motor cycle and for the said purpose, the matter has to be remanded to the Tribunal with suitable direction.
Sri G. Ravishankar Shastry, learned counsel appearing for the contesting respondents submits that it is obvious from the spot mahazar and the sketch that the accident occurred due to rash and negligent-driving of the driver of the tanker lorry. Hence, it was not required to array the owner and insurer of the motor cycle. The court below after overall appreciation of evidence has rightly fixed the liability on the driver of the tanker vehicle. Though, it is true that while calculating the loss of dependency in respect of the death of a bachelor, the multiplier appropriate to the age of the younger parent is the criteria and the Tribunal has lost sight of the said fact. However in both the cases, the deceased were the sole earning members of the family. The insurance company having not disputed its liability to cover the risk of the owner of the vehicle, now it cannot bailed out only for the reason that the owner and insurer of the motor cycle are not arrayed as parties. In the objection statement filed before the tribunal, the insurance company did not take a specific contention about the negligence of the rider of the motor cycle. During the enquiry they have not adduced rebuttal evidence also. Now it is not permissible for them to seek for remand of the case and the appeal is liable to be rejected.
In the light of the rival submissions as above, we have perused the impugned judgment and award. The owner of the vehicle though served had remained absent. The insurance company in its objection statement had averred specifically to the effect that the insured and the insurer of the motor cycle are the necessary parties to the proceeding, hence, the petition is bad for non-joinder of necessary party. Despite said specific contention, the tribunal did not frame an issue regarding the non-joinder of necessary party. In the body of the order except reiterating the evidence of the eye witness and citing the documents produced on behalf of the claimants, there is no further discussion as to how the driver of the lorry is responsible in causing the accident. During the cross-examination of the eye witness he himself had disputed the correctness of Sketch-Ex. P8. That being so, the tribunal was obliged to evaluate the evidence of the eye witness in the context of the sketch prepared by the I.O. and disputed by the witness.
This Court in the case of Karnataka State Road Transport Corporation Vs. Smt. Biyabi @ Kundan Bai and Others reported in ILR 2000 KAR 563, at para No. 15 has held as under:
"..............even for fastening the liability of compensation on the master, the Tribunal has to record a finding that the accident had taken place because of the negligence of the driver. Certainly unless such a finding is recorded, the master cannot be held to be a joint tort-feasor and consequently vicariously liable". 8. The court below acted on the salary certificates of the deceased and while calculating the loss of dependency on noticing that there was no evidence as to whether the deceased were the permanent employees of MRPL, their future prospects were not calculated. Instead of selecting the multiplier appropriate to the age of the younger parent, multiplier proportionate to the age of the deceased was selected for calculation which is not in accordance with the dictum of the Apex Court in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, . Instead of calculating the loss of dependency on assumption and presumption, in our considered opinion it is required firstly to ascertain the nature of the employment of deceased, whether permanent or temporary and what was the future prospects of the deceased and then calculate the loss of dependency on the basis multiplier proportionate to the age of the younger parent/sole parent and the liability of the owner and the extent of the liability of the insurer to pay compensation (since two vehicles were involved in the accident). In that view of the matter we deem it expedient to remand the case so that proper issues are framed by the Tribunal on the controversial facts and afford opportunity to both parties so that the tribunal can arrive at a proper and justifiable conclusion while calculating the loss of dependency to the claimants.
Accordingly, the appeal is allowed in part the common judgment and award passed by the addl. MACT and 4th Addl. District Judge dated 6.11.2013 is set aside. Matter is remanded to the tribunal with a direction to frame necessary issues on all the controversies between the parties in the light of the observation made supra, thereafter, afford opportunity to both the parties to adduce evidence and address their arguments and then dispose of case in accordance with law. All contentions are left open. Without waiting for the notice from the court the parties are directed to appear before the Tribunal on 28.4.2015. The case shall be disposed of expeditiously in accordance with law within a time frame of four months from the date of the appearance of both parties before the Tribunal.
The jurisdictional Tribunal is directed to invest the amount deposited by the Insurer before it in any Nationalized/Scheduled/Grameena Bank, until a final decision is taken by the Tribunal after remand.
The amount in deposit by Insurer in both appeals shall be transmitted to the jurisdictional Tribunal, forthwith.
The Jurisdictional Tribunal, in turn, is directed to invest the same in any Nationalized/Scheduled/Grameena Bank, until a final decision is taken by the Tribunal after remand.
The Registry is directed to transmit the case records forthwith to the Tribunal.