Sachin R. Rajmane vs IFFCO TOKIO General Insurance Company Limited

This appeal is preferred by the appellant being aggrieved and dissatisfied by the judgment and award dated 25.2.2012 passed by the Motor Accident Claims Tribunal, Court of Small Causes, Bengaluru City, in M.V.C. No. 4470/2007. Briefly stated:

That the appellant on 11.1.2007 at about 6.00 p.m. while proceeding on his Suzuki Samurai Motor Cycle bearing registration No. KA-02/EA-1159 from K.R. Puram towards Hosakote near Bandapur Gate, a BMTC bus bearing registration No. KA-01/F-2480, which was moving in front of his vehicle, since abruptly stopped without giving signal, and at the same time, a Hero Honda Splendor Plus Motor Cycle bearing Registration No. KA-53/E-6092 came from behind in a rash and negligent manner hit his Suzuki Motor Cycle from behind, his vehicle dashed to the BMTC bus, thereby he fell down and suffered grievous injuries; the rider of the Hero Honda Splendor Plus Motorcycle fled away with the vehicle. Due to the impact during the accident he suffered fracture of facial bones, right frontal contusion, right side extradural haematoma; loss of vision of right eye, head injury; fracture of left radius, fracture of first and second ribs on right side, fracture of left ulnar styloid process and other injuries. He was shifted to Manipal Hospital, Bangalore and was treated as inpatient from 11.1.2007 to 18.3.2007. He underwent five surgeries. He filed a petition under Section 166 of the MV Act before the Tribunal. At the first instance, he did not array the BMTC and its insurer (third and fourth respondents) as respondents.

On holding enquiry, the Tribunal, on an earlier occasion, vide its judgment and award dated 13.10.2009 passed an Award, awarding compensation of Rs. 8,84,000/- against respondent No. 1. Aggrieved by the said award, the appellant preferred an appeal in M.F.A. No. 862/2010 seeking for enhancement of the compensation. The first respondent also challenged the same judgment, questioning its liability under the Award, in M.F.A. No. 9009/2009. When the matter came up for consideration, this Court allowed both the appeals by common judgment dated 23.2.2011 by observing that B.M.T.C. is a proper party and remitted the matter to the Tribunal for fresh disposal and thereafter the B.M.T.C. and its insurer were impleaded as respondents-3 and 4. The appellant led further evidence by examining three more witnesses. The claim petition was allowed partly; the contributory negligence was apportioned, i.e., 50% on the part of the claimant and 25% on the first respondent/in-surer of Hero Honda Splendor Plus Motorcycle and 25% on third respondent/BMTC and compensation of Rs. 11,00,000/- was awarded along with interest at the rate of 6% per annum, which has to be apportioned as above. Aggrieved claimant is again in appeal.

Sri Vishwanath S. Shettar, learned Counsel appearing for the appellant submits that the Tribunal unmindful of the grievous injuries suffered by the claimant during the incident and the permanent disability, resulting from the accident and medical expenses met by him has awarded lesser compensation amount. In view of the apportionment of 50% of the contributory negligence on the claimant, his entitlement is scaled down to Rs. 5,50,000/- with 6% per annum that has resulted in miscarriage of justice, great loss and hardship to him. The claimant had impleaded the owner and insurer of the BMTC bus in accordance with the observation made by this Court in M.F.A. No. 9009/2009 c/w. 862/2010 D.D. 23.2.2011. Virtually it was the accident involving three vehicles. Without framing a proper issue regarding contributory negligence, on erroneous appreciation of evidence and with vague reasoning, the Tribunal has saddled him with the liability of contributory negligence to an extent of 50%. Therefore, the judgment and award passed by the Tribunal may be set aside and a reasonable compensation may be awarded. In the alternative, the matter may be remanded to the Tribunal with a direction to frame additional issue, regarding contributory negligence with permission for him to adduce additional evidence.

Learned Counsel for first respondent/in-surer Sri B. Pradeep; learned Counsel for third respondent/Corporation, Smt. H.R. Renuka; and Sri K. Suresh, learned Counsel for fourth respondent/insurer, also submit that in the absence of any specific issue regarding the contributory negligence, they could not meet the case of the claimant effectively. In the light of the above submission and on perusal of the impugned judgment and award, it emerges that in consequent upon the observation made by this Court in M.F.A. No. 9909/2009 c/w. 862/2010, the Chairman and Managing Director of BMTC bus and its insurer (third and fourth respondents) were got impleaded and the claim petition was amended. It was categorically pleaded in the claim petition that the BMTC bus KA-01/F-2480 which was moving in front of appellant''s vehicle stopped, abruptly without giving signal; the claimant slowed down his motorcycle to avoid the BMTC bus; at that time, the Hero Honda splendor Plus bearing registration No. KA-53/E-6092 came in a high speed, driven in a rash and negligent manner from the rear side and dashed against Suzuki Samurai Motorcycle and the Suzuki Samurai dashed the BMTC bus. That being so, the Tribunal was obliged to frame an additional issue regarding the contributory negligence. Having not framed a proper issue regarding contributory negligence, we find force in the submission made for the appellant in seeking remittance of the matter to the Tribunal so that the proper issue regarding contributory negligence may be framed, thereupon parties will have opportunity to present their whole case before the Tribunal for arriving at just and proper conclusion.

Accordingly, the appeal is allowed.

The judgment and award dated 25.2.2012 passed in M.V.C. No. 4470/2007 on the file of the M.A.C.T., Court of Small Causes, Bengaluru City, is hereby set aside.

The matter is remanded to the Tribunal for fresh adjudication on framing necessary issue and recording statements of the parties. Liberty is reserved to the parties to file necessary application seeking permission to file objection statement or to adduce evidence/rebuttal evidence.

The matter shall be disposed of after giving opportunity to both parties within a time frame of three months from the date of appearance of the parties.

Without waiting for any notice from the Court, the parties are directed to appear before the concerned Tribunal Court on 25th May, 2015 at 11.00 a.m. either personally or through their Counsel and collect the further date of hearing.

All the contentions left open.

Registry to transmit the records to the trial court forthwith.