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Judgment
K.L. Manjunath, J.—These 16 appeals arise out of the judgment and award passed by the MACT, Bangalore, dated 25.2.2010 in MVC No. 7456 to MVC No. 7463/2008.
Eight appeals are filed by the claimants being not satisfied with the compensation awarded to them the remaining eight appeals are filed by the ICICI Lombard General Insurance Company Ltd. challenging the quantum of compensation and also the findings of the tribunal on the question of negligence in holding that accident occurred due to contributory negligence of the lorry and saddled the liability to an extent of 50%. Therefore, these appeals are heard together.
Admitted facts in these appeals are as hereunder:-
On the date of the accident deceased Srinath along with his family members were travelling in his car bearing No. KA 07 M-1972 and he was proceeding from Mulbagal towards Kolar. When he was near Tambihalli on NH-4, driver of the lorry bearing No. KA 05 D-3249 had parked his vehicle on the left side in a negligent manner. When the car was about to pass the parked lorry, all of a sudden parked lorry took on reverse side in high speed and dashed against the car which was behind the lorry as a result of which driver Srinath and other two persons in the car died. Remaining persons were injured. Criminal case was registered against the driver of the lorry and charge sheet was also filed. Therefore, in all eight claim petitions were filed claiming compensation against the owner of the lorry and the insurer.
It was contended by the Insurance company of the lorry that accident did not occur due to rash and negligent driving of the driver of the lorry. According to the insurance company, lorry driver had parked his lorry on the extreme left side of the road and left side tyres of the lorry were on the mud portion of the high way and the right side tyres were on the asphalted portion and that there is no negligence of the driver of the lorry in parking. On the contrary, it is the driver of the car without observing parked lorry dashed against the lorry and as a result of which accident occurred. Therefore, he contended that claim petitions filed against the owner and the insurance company of the lorry were not maintainable.
In order to prove their respective contentions, many witnesses were examined and they also relied upon several documents. The Tribunal after considering the evidence let in by the parties came to the conclusion that the accident occurred due to the contributory negligence of the drivers of both the vehicles and the negligence was apportioned equally.
Claim petitions were allowed saddling the liability on the insurance company to an extent of 50%. Therefore, these 16 appeals are filed by the claimants and the insurance company being not satisfied with the relief granted to each of them.
We have heard Mr. Krishnaswamy, learned counsel appearing for the Insurance Company and Sri S.P. Shankar, learned Senior Counsel for the appellants/claimants.
After hearing and on perusal of the trial court records, we noticed that the tribunal had given an indication to the claimants to implead the owner and insurer of the car since car was also insured. Though such an opportunity was given to the claimants, for the reasons best known to them, they did not implead the owner and the insurer of the car. At this juncture, counsel appearing for the claimants submit that if an opportunity is given to the claimants, would like to implead the owner and the insurer of the car and further opportunity be given to all the parties to lead further evidence by setting aside the findings of the tribunal on the question of negligence and also the quantum.
In view of the submissions made by the counsel for both the parties, we feel that the matter requires to be re-considered by the tribunal afresh in the interest of the claimants.
Accordingly, these appeals are allowed. Judgment and award passed by the tribunal in MVC Nos. 7456 to 7463 of 2008 dated 25.2.2010 are hereby set aside and the matter remanded to the tribunal for fresh consideration. Parties shall appear before the Tribunal on 23.2.2015.
Liberty is granted to both the parties to amend their pleadings, implead the owner and insurer of the car and to lead further evidence, if necessary.
Amount deposited by the Insurance company in these appeals, if any, is ordered to be refunded to the appellant/Insurance company.