AI Structured Summary
Not yet generated for this judgment
Judgment
K. Govindarajulu
The respondent No. 3/NWKRTC in MVC. No. 78/2003 on the file of the Civil Judge (Senior Division) and Additional MACT Haveri is the appellant. The parties will be referred according to their ranking before the MACT for convenience.
Facts necessary for the consideration of the present appeal arc as follows:
The case of the claimant is that he was moving in the motorbike of his son-in-law bearing registration No. KA27/H-1869 on 20.11.2002. While so, the driver of the KSRTC bus bearing registration No. KA-31/F-381 has dashed the motorbike on account of the negligent driving of the KSRTC bus by its driver. So, seek for compensation for the agony suffered by the claimant. The KSRTC has denied the liability, called upon the claimants to prove the accident. MVC. No. 78/2903 is heard along with MVC. No. 88/2003 and 109/2003. By the impugned order, dated 7.7.2006 all the three cases are decided by the learned Member of the Tribunal. In the course of reasoning the contention of the KSRTC that three people cannot use the two wheeler at a stretch is rejected by the learned Member of the Tribunal.
The learned Advocate for the KSRTC vehemently contend that in the facts of the case, the evidence placed would reflect that three majors and three children were moving in the two wheeler. Then the accident has occurred. So, the assessment of the evidence on the aspect of negligence is incorrect. Further substantiates contending that it is the case pleaded by the claimant that the accident occurred when the two wheeler was moving on the road, while so, the learned Member of the Tribunal comes to a conclusion that the vehicle was parked when the accident has occurred. That is in other words, the case which is pleaded is imagined and a finding is given, so, pray for setting aside the finding on the aspect of negligence. Also contend that when there is no evidence in regard to the disability resulting in loss of earning capacity assessing the disability at 50% of the whole body and assessing the compensation is not called for so seek for allowing of the appeal.
On the other hand, the learned Advocate for the claimant submit that this Court has declared the law that if a charge sheet is filed, it is prima facie evidence. In the facts and circumstances of the case, the charge sheet is filed against the driver of the bus. Simultaneously, travel by three majors is not by itself the criteria to dislodge the case of the claimant. So supports the reasoning of the learned Member of the Tribunal.
In the light of the above, the first submission on the aspect of negligence according to the Advocate for the KSRTC is that a case which is not pleaded is considered and a finding is given by the Tribunal. So, the Court is obliged to read the pleading, finding of the Court.
The pleading is as follows:
On 20.11.2002 at about 7.30 am all the claimants were proceeding towards Bankapur from Chandapur near Mallanayakanakoppa cross on Kawasaki motorcycle No. KA-27/H-1860. The said motorcycle was driven by one Prabhugouda S/o Melagirigouda Patil.
The reasoning is as follows:
At the time of accident the deceased and other injured persons were not travelling, but the above persons were standing near the accident spot and there is no fruitful evidence come forth to show that the persons were travelling at the time of accident
It is claimed by the claimant that he was moving in the motorcycle of his son-in-law and son-in-law Prabhu Gwoda was driving at a moderate speed, then the driver of the KSRTC bus has driven the vehicle rashly and negligently and hit the two wheeler. At para 10 of the discussion by the learned Member of the Tribunal on the said subject, the finding is that the accident occurred when they were standing near the accident spot. So, the case not pleaded is assessed and answered by the learned Member of the Tribunal is probablized. So, there is non-application of mind by the learned Member of the Tribunal is proved. So, the case requires remand and a fresh finding in accordance with law. So, the entire finding recorded on the aspect of negligence and also on the aspect of quantum of compensation is liable to be set aside. The learned Member of the Tribunal is directed to redo the entire exercise and give a fresh finding. If there is a request for additional evidence, the Presiding Officer is directed to permit the parties to lead evidence. The amount in deposit be transferred to the Tribunal for further orders.