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Judgment
This appeal is by the claimants in MVC No.144/2010 on the file of Additional District Judge (MACT) at Raichur, challenging the judgment and
award passed by the said Court both on the ground of liability and quantum.
With the consent of the leaned counsel appearing for the parties, the appeal is heard and disposed of finally. Perused the judgment and award
passed by the Tribunal.
As there is no dispute regarding death of deceased-Dathatreya in a road traffic accident that occurred on 16.08.2009 due to rash and negligent
driving of a truck bearing registration No.KA-36/8899 by its driver, the points that arise for consideration in this appeal are:
i. Whether the finding of the Tribunal on liability is just and proper?
ii. Whether the quantum of compensation awarded by the Tribunal is just and reasonable or does it call for enhancement?
Sri Basavaraj R. Math, learned counsel appearing for the appellants (claimants) submits that the Tribunal solely relying upon the contention
made by the learned counsel for the insurer of the offending vehicle that respondent No.1 (owner of the vehicle) had entrusted the vehicle to a
person who had no valid and effective driving licence and the owner of the vehicle has not laid any contra evidence has fastened the liability on the
owner of the vehicle. He submits that the claimants have traced the driving licence of the driver of the offending vehicle which shows that driver of
the offending vehicle had valid and effective driving licnece as on the date of the accident and therefore, he prays for remanding the matter to the
Tribunal so as to enable the claimants to produce the driving licence of the driver of the offending vehicle to show that he was having valid and
effective driving licence as on the date of accident and in such an event, the finding of the Tribunal on liability will be modified and liability will be
fastened on the insurer which will enure to the benefit of the claimants.
Regarding quantum, learned counsel submits that the claimants are younger brothers of the deceased, their parents predeceased their deceased
brother as such, the claimants were depending upon the earning of their deceased elder brother for each and everything and the Tribunal without
considering this aspect of the matter has committed an error in holding that the claimants are not entitled for compensation under the head ''loss of
dependency'' and has committed an error in awarding meager compensation under the head ''loss of estate''. If the matter is remanded to the
Tribunal, the claimants would lead additional evidence in this regard and therefore, he prays for allowing the appeal by remitting the matter back to
the Tribunal so as to enable the claimants to lead additional evidence both on liability as well as quantum.
Smt. Preeti Patil, learned counsel for the insurer of the offending vehicle submits that inspite of insurer issuing notice to the owner of the vehicle
calling upon him to produce documents to show that the vehicle was driven by a person having valid and effective driving licence as on the date of
accident, the owner of the vehicle did not choose to produce any such documents nor he choose to file statement of objections and enter witness
box and establish that he had entrusted the vehicle to a person who was having valid and effective driving licence as on the date of the accident.
She further submits that the deceased having traveled in the offending vehicle as gratuitous passenger, his risk is not covered under the policy.
Considering this, the Tribunal was justified in fastening the liability on the owner of the offending vehicle. Regarding quantum, she submits that the
claimants are admittedly major brothers of the deceased and they cannot be said to be dependent brothers of the deceased. Considering this, the
Tribunal was justified in awarding compensation under the head ''loss of estate''. However, she submits in the event of this Court remanding the
matter to the Tribunal in order to enable the claimants to lead additional evidence regarding driving licence and their entitlement of compensation
under the head ''loss of dependency'', the insurer may also be given opportunity to cross-examine the claimants on such additional evidence and
lead additional evidence from their side as well.
In this appeal, an application is filed by the appellants/claimants under Order XLI Rule 27 of CPC seeking permission of the Court to produce a
document (driving licence) by way of additional evidence to show that the offending vehicle was driven by a person who was having a valid and
effective driving licence as on the date of accident. Therefore, it is further submitted by the learned counsel for the appellant that if the matter is
remitted to the Tribunal, it would enable the claimants to adduce additional evidence to show that the offending vehicle was driven by a person
having valid and effective driving licence as on the date of accident and it would further enable them to establish that as their parents predeceased
their deceased brother, they were depending upon the earnings of their deceased brother and they are entitled to be awarded compensation under
the head ''loss of dependency''. There is some force in the submission of the learned counsel for the claimants hence, I deem it just and proper to
allow the appeal and set aside the judgment and award passed by the Tribunal insofar as liability and quantum of compensation are concerned and
remand the matter back to the Tribunal so as to enable the parties to adduce additional evidence without expressing any opinion on the rival
contentions urged by the parties in one way or the other. Points raised for consideration are answered accordingly.
Hence, I pass the following:
ORDER
The appeal is allowed. The impugned judgment and award dated 31.03.2011 passed in MVC No.144/2010 by the Additional District Judge
(MACT) Raichur, is hereby set aside insofar as it relates to its finding on liability and quantum of compensation is concerned and the finding of the
Tribunal on negligence stands undisturbed. The matter stands remitted back to the Tribunal with a direction to reconsider its finding with regard to
liability and quantum after providing an opportunity to both the parties to lead additional evidence and to cross-examine on such additional
evidence if necessary.
It is made clear that since the appellants/claimants and the insurer of the offending vehicle were represented in the appeal through their respective
counsel, they are directed to appear before the Tribunal on 05.03.2018 at 3.00 p.m., without expecting further notice from the Tribunal, on which
day, the claimants shall take out notice to the owner of the offending vehicle.
Both the parties are at liberty to adduce additional evidence, if any, on issues relating to liability and quantum.
The Registry shall forward Misc.Cvl.No.153978/2011 and the documents produced along with the application and the judgment passed by this
Court today to the Tribunal forthwith and the Tribunal shall consider the same in accordance with law.