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Judgment
Mr. B. Veerappa, J.—This appeal is filed by the sons and daughters of the deceased-Bayamma against the impugned judgment and award dated 29.06.2013 made in MVC No. 642/201.1. on the file of the Principal Motor Accident Claims Tribunal and Principal District Judge at Bidar dismissing the claim petition filed under Section 166 of the Motor Vehicles Act.
It is the case of the claimants that on 08.03.2011 at about 10.00 p.m., the deceased-Bayamma came from Chatnalli village to Ayaspur Cross Road in Tata Magic vehicle, she got down from the vehicle at Bidar and she was proceeding to the house of her daughter on Bidar-Mannaekhelli road, near veterinary college at Ayaspur Cross, when she was about to cross the road, NEKRTC bus bearing No. KA-38-F-563 was driven by its driver in a high speed and in rash and negligent manner from Bidar and due to high speed, lost control over the bus and dashed against the deceased-Bayamma leading to the accident. Consequently, she sustained grievous injuries to both legs, hands, chest, backside of the head and forehead and she went unconscious. Immediately, she was shifted to the government hospital, Bidar. She has undergone treatment as inpatient up to 23.03.2011 and she succumbed to the injuries on the same day at 7.35 hours.
The respondent has filed written statement contending that claimants'' mother was crossing the road in a hurry to proceed and as such, she herself fell down on the road due to her negligence and might have sustained injuries and there was no contact or impact between the deceased and the bus in question The bus has not at all dashed against the deceased-Bayamma. Immediately the driver of the bus filed complaint, before the police. But the claimants have registered a false case against the driver of the bus and prays for dismissal of the claim petition.
Based on the above pleadings, the Tribunal framed the following issues:
Whether the petitioners prove that, their mother deceased Bayamma W/ o late Hanmanthappa Hawdenoor met with an accident on 8.3.2011 at about 10.00 hours near Veterinary College Ayaspur cross on Bidar - Mannaekhelli road involving in NEKRTC bus bearing Reg. No. KA.38/F.563 and she died on 23.3.2011 during treatment at Govt, hospital, Bidar?
Whether the respondent proves that, deceased Bayamma fell down herself on road while crossing the road in hurried manner?
To what relief the parties are entitled?
What order or award?
Claimant No. 1-son of the deceased was examined as PW.1 and one witness was examined as PW.2 and got marked the documents at Exs.P1 to P13. The respondent himself was examined as RW.1 and no documents were produced on his behalf.
The Tribunal considering the entire material on record recorded a finding that claimants have failed to prove that their mother deceased-Bayamma met with an accident on 08.03.2011 involving NEKRTC bus bearing No. KA-38-F-563 and she died on 23.03.2011 and the respondent proved that the deceased-Bayamma herself fell down on the road while crossing the road in a hurried manner therefore, the claimants are not entitled to any compensation. Accordingly, the Tribunal by the impugned judgment and award dated 29.06.2013 dismissed the claim petition. Hence, the present appeal is filed by the claimants.
I have heard the learned counsel appearing for the parties to the lis.
Sri Basavaraj R. Math, learned counsel for the appellants has vehemently contended that the MACT is not justified in dismissing the claim petition mainly on the ground that the deceased-Bayamma has not come in contact with the respondent's bus bearing No. KA-38-F-563 and as per Ex.P12-MV report, there is no damage caused to the vehicle. The said reason assigned by the Tribunal is without appreciation of the case of the appellants. If any human being comes in contact with the vehicle, the question of causing damage to the vehicle does not arise. He has further contended hat the Tribunal has erred in dismissing the claim petition on the ground that the injuries sustained in the accident is not proved by the appellants when she was inpatient in the hospital and the said finding is contrary to Ex.P13-Postmortem Examination report, wherein the opinion of the doctor clearly indicates that the death is due to injury to vital organ portion. The said document is not questioned. Therefore, the Tribunal is not justified in dismissing the claim petition ignoring the provisions of Sections 158(6) and 166(4) the Motor Vehicles Act, 1988. Therefore, he has sought for setting aside the impugned judgment and award passed by the MAC? and requests this court that the matter has to be remanded to the Tribunal for fresh adjudication on merits.
Per contra, Sri Shivayogesh, learned counsel appearing on behalf of Smt. Ratna N. Shivayogimath, learned counsel for the respondent sought to justify the impugned judgment and award passed by the Tribunal and contended that in the absence of any material produced before the Court that the involvement of the bus bearing No. KA-38-F-563 resulted in the death of the deceased, the Tribunal is justified in dismissing the claim petition. Therefore, he prays for dismissal of the appeal.
In view of the rival contentions urged by the learned counsel for the parties, the only point that arise for consideration in the present appeal is:
Whether the appellants have made out a case for interference with the impugned judgment and award passed by the Tribunal and whether it requires reconsideration by the Tribunal?
I have given my anxious consideration to the arguments advanced by the learned counsel for the parties to the lis and perused the entire materials on record.
It is the specific case of the claimants that the deceased-Bayamma met with an accident on 08.03.2011 due to the rash and negligent driving of the driver of bus bearing No. KA-38-F-563, thereby, she has sustained grievous injuries to both legs, chest, hands, backside of the head and forehead and she became unconscious and subsequently, died in the hospital on 23.03.2011. In support of the case, claimant No. 1 son of the deceased was examined as PW.l and produced material documents at Exs.P1-FIR, P2-Copy of complaint, P3-letter given by the police, Ex.P4-Certified copy of charge sheet, Ex.P5-Certified copy of spot panchanama, Ex.Po-Certified copy of sketch map, Ex.P7-certified copy of statement of Youhan, Ex.P8-Certified copy of statement of Ramesh, Ex.P9-Certified copy of statement of Yuvaraj, Ex. P10-Certified copy of further statement, Ex.P11-Certified copy of case diary, Ex.P12-M.V. Report and Ex.P13-Certified copy of P.M. Report. The driver of the bus was examined as RW.1 and no documents were produced by him.
PW.1 has reiterated the averments made in the claim petition and stated that his mother came from Chatnalli village to Ayaspur Cross through Tata Magic vehicle, she got down from the vehicle at Bidar ana she was proceeding to the house of her daughter on Bidar-Mannaekhelli road near veterinary college and when she was about to cross the road, NEKRTC bus bearing No. KA-38-F-563 came in a rash and negligent manner and dashed against his mother Bayamma leading to the accident and she died in the hospital on 23.03.2011. He has categorically denied the suggestion put to him that his mother got down from the Tata Magic Vehicle, due to slip, she fell down on the road and sustained injuries.
The driver of the bus who was examined as RW.l has stated that on 08.03.2011 he was driving the bus from Bidar to Srisailam with due care and caution in a normal speed. When the bus reached near veterinary college at Ayaspur cross road, the deceased-Bayamma after crossing the road hurriedly fell herself on the road due to her own negligent act and might have received injuries. He has also stated that there was no contact or impact between the bus and the deceased. However, he has filed a complaint before the police informing about the accident and he denied all the allegations made m the claim petition.
Ex.P1-FIR goes lo show that, the first information is reported by 11.45 a.m., that shows that one Ravi S/o Amruth has reported the information specifically against RW.l with all details of his name, age and his address.
Ex.P2 is statement of the first informant Ravi. He has stated that his grand mother informed him over phone that she is not feeling well, as such she is coming to his house, so as to go to the hospital at Bidar. Therefore he was waiting for his grand mother. But it was informed by the villager Youhan that when he was waiting for the bus near Ayaspur cross, the deceased-Bayamma got down from the Tata Magic Vehicle and was about to cross the road from bus stand at that time the driver of bus coming from Bidar side having seen Bayamma crossing the road suddenly applied break but bumper of the bus dashed against the deceased and she suffered injuries. Thus, he reached to the spot only to see his grand mother with multiple injuries. RW.l driver of the bus was very much present on the spot who revealed the details. It goes to show that bus driver did not run away from the place of accident and he has taken the deceased to the hospital in 108 ambulance. His grand mother was not in a position to speak.
Ex.P5-spot panchanama is shown by the informant who was not an eyewitness has also contended that the driver has suddenly applied breaks seeing the old lady crossing the road.
Ex.P6-sketch goes to show that the bus was on its left side of the road proceeding from Bidar to Mannaekhelli and has already crossed Ayaspur junction.
Ex.P7 statement of Youhan who is an eyewitness has stated that in spite of applying break, bumper dashed against the lady. Ex.P9-statement of Yuvaraj also shows that the incident has occurred in spite of the efforts made by the driver of the bus to stop the bus.
Ex.P12-MV report goes to show that no damage is found at the front side of the bus and at the time of inspection.
Ex.P13 Postmortem report goes to show that injury is on vital organs brain and there was no multiple injuries as alleged.
Based on the said oral and the documentary evidence, the Tribunal recorded a finding that bumper is down part of the front portion of the bus. If at all, any dash by bumper part against the lady, it should contact the lower part of the body of the woman or on any other upper part and not a head, unless the head is already at the ground level. I.M.V. report shows no damage to any part of the body including the bumper.
The reasoning adopted by the MACT Judge that no damage is caused to the body of the vehicle including the bumper if really there was an accident is contrary to the material on record and cannot be believed. In the statement made by the eyewitness Youhan, he has stated that in spite of efforts made by the driver in applying the break, bumper of the bus dashed against the lady. Ex.P2 complaint made by Ravi clearly shows that bumper of the bus dashed against the deceased and she suffered injuries.
The appellants/claimants have filed application under Order 41, Rule 27 of CPC along with the present appeal. Ashok-driver of the bus has stated in his statement before the police that (VERNACULAR MATTER) Yuvaraj-conductor of the bus has stated in his statement that one lady after getting down from the Tata Magic vehicle while crossing the road, in spite of break applied by the driver of the bus, the bumper touched to her and she fell down on the road and the relatives of the lady have assaulted the driver of the bus and also admitted that the accused in the criminal case are the grand sons of the deceased-Bayamma.
The documentary evidence stated above shows that while crossing Ayaspur Cross in spite of the driver of the bus applied breaks, bumper of the bus dashed against the deceased-Bayamma and she fell down and sustained injuries. All these material clearly indicates that the accident occurred at the instance of driver of the bus as well as the deceased-Bayamma. This should have been considered by the Tribunal and should have passed the orders on merits. Additional documents produced along with the appeal namely, FIR lodged by the driver of the bus along with the complaint and charge sheet in C.C.No. 1127/2012 and the evidence of the conductor in C.C. No. 1127/2012 is not disputed by the respondent. Therefore, considering the said material documents and Ex.P5-spot panchanama, Ex P7-statement of Youhan the eyewitness, Ex.P13-post mortem examination report, the matter requires reconsideration.
For the reasons stated above, appellants/claimants have made out a case for interference and the Tribunal has not properly adjudicated the matter in a proper perspective especially in view of the provisions of Sections 158(6) and 166(4) of the Motor Vehicles Act, 1988, which reads as under:
"158. Production of certain certificates, licence and permit in certain cases
(6). As soon as any information regarding any accident involving death or bodily injury to any person is recorded or report under this section is completed by a police officer, the officer incharge of the police station shall forward a copy of the same within thirty days from the date of recording of information or, as the case may be, on completion of such report to the Claims Tribunal having jurisdiction and a copy thereof to the concerned insurer, and where a copy is made available to the owner, he shall also within thirty days of receipt of such report, forward the same to such Claims Tribunal and Insurer."
"166. Application for compensation:
(4). The Claims Tribunal shall treat any report of accidents forwarded to it under subsection (6) of section 158 as an application for compensation under this Act. "
In view of the oral evidence of PW.1 and material documents Exs.P1 to P13 and the evidence of RW. 1 and especially the postmortem examination report clearly indicates that the death is caused due to the injuries to vital organ portion and therefore, the matter requires re-adjudication between the parties in accordance with law and in the light of the provisions of Sections 158(6) and 166(4) of the Motor Vehicles Act, 1988. Accordingly, the point raised in the present appeal has to be answered in the affirmative holding that the appellants have made out case of reconsideration.
In view of the aforesaid reasons, the appeal is allowed. The impugned judgment and award dated 29.06.2016 dated 29.06.2013 made in MVC No. 642/2011 on the file of the Principal Motor Accident Claims Tribunal and Principal District Judge at Bidar, is hereby set aside. The matter is remanded to the Principal Motor Accident Claims Tribunal and Principal District Judge at Bidar, for fresh adjudication in accordance with law. All the contentions of both the parties are left open.
Office is directed to return all the original documents produced along with the application filed under Order 41, Rule 27 of CPC to the learned counsel for the appellants/claimants forthwith on production of certified copies of the same.
Ordered accordingly.
.