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Judgment
N.K. Patil, J.
The appeal and the cross objection respectively by the present owner and the previous owner of the Car bearing Registration No. KA-14/P-5684 are directed against the same impugned judgment and award dated 23rd February 2011, passed in MVC No. 808/2006 (old MVC No. 28/2006), by the VI Additional District Judge, Motor Accident Claims Tribunal, Mysore, (for short, ''Tribunal''), on the ground that the Tribunal has committed a grave error in directing them to indemnify the award amount jointly and severally.
Both the present owner and the previous owner of the offending Car have filed the appeal and the cross objection, on the ground that they are not liable to indemnify the award amount as the policy was very much in force and hence, the Insurance company has to indemnify the award. Therefore, both felt necessitated to present the appeal and the cross objection respectively.
On account of the death of the deceased in the road traffic accident, the claimants filed the claim petition, before the Tribunal, seeking compensation of a sum of Rs. 17,05,000/-, against the present owner, insurer and the previous owner of the offending Car bearing Registration No. KA-14/P-5684. The said claim petition was numbered as M.V.C. No. 808/2006 and had come up for consideration before the Tribunal on 23rd February, 2011. The Tribunal, after considering the relevant material available on file and after appreciation of the oral and documentary evidence, and taking into consideration the number of dependents, age and avocation of the deceased allowed the claim petition in part, awarding a sum of Rs. 3,12,800/- under different heads, with 6% interest per annum, from the date of petition till the date of realization and directed the present owner (appellant herein) and the previous owner (cross objector herein) to indemnify the award jointly and severally and dismissed the claim petition as against Insurer. Being aggrieved by the said direction issued by the Tribunal, the present owner and the previous owner have filed the appeal and the cross objection respectively, seeking to set aside the said direction issued to indemnify the award, on the ground that the policy of Insurance is very much in force and to direct the Insurer to indemnify the award.
I have heard learned counsel appearing for the present owner/appellant herein and the previous owner/cross objector, for quite some time.
Learned counsel appearing for appellant at the outset submitted that the Tribunal has erred in awarding compensation in favour of the claimants and directing the appellant and cross objector to jointly and severally indemnify the award. Further, he submitted that the appellant, earlier had filed a suit in O.S. No. 239/2006 and the same came to be dismissed against which the appellant filed R.A. No. 37/2008 and the appeal was allowed and the Insurance Company was held liable to pay compensation and that insurance was held valid. The said finding has become final. The appellant has produced the judgment of the Appellate Court at Ex. R. 12. Therefore, he submitted that, when the vehicle was insured for the period between 19/02/2005 and 18/02/2006 and the accident occurred on 01.09.2005 and the sale of the vehicle was on 31/08/2005, it proves beyond reasonable doubt that as on the date of the sale of the vehicle, the vehicle was covered under a valid insurance. Further, the claim of the Insurance Company that the policy was cancelled on 16/06/2005 on salvage basis could not be countenanced as the same was not informed to the owner.
It is the further contention of the appellant that the sale of the Car in favour of the appellant was valid as there had been transfer of the car in her name and in the office of the RTO necessary changes had been effected. In that view of the matter, the Tribunal ought to have absolved the appellant of the liability of indemnifying the award. These aspects of the matter have not been considered nor whispered in the entire judgment and award passed by Tribunal. Therefore, he submitted that the impugned judgment and award passed by Tribunal is liable to be set aside and the matter is liable to be remanded back to Tribunal for reconsideration afresh.
It is the contention of the learned counsel appearing for previous owner/cross objector herein that the Tribunal has failed to consider that the Car bearing No. KA-14/P-5684 has been sold to Ismail a Scrap dealer without Insurance and vehicle was delivered on 11/06/2005 as per Exhibit-R2, the Delivery Note issued by the said Ismail is produced to show that the vehicle was not road worthy. But, the Tribunal has ignored this piece of evidence merely because the purchaser Ismail was not examined. Further, the Tribunal has failed to consider that Exhibit-R2 produced by the Cross Objector was not cross examined on this aspect and this document Exhibit-R2 is not disputed by the present owner, on the other hand she has not produced the delivery note in respect of the vehicle in question. If really the present owner/appellant had purchased the vehicle, from an ordinary prudent man, then, there should be a delivery receipt executed by him in favour of the cross objector.
It is the further contention of the cross objector that the Tribunal has failed to consider that the purchaser Ismail had the physical custody of the vehicle in scrap condition, has obtained the sale receipt signed by the cross objector, the contents of the sale receipt were not filled when Exhibit-R2 was taken. The said Ismail after getting the vehicle repaired taking advantage of the fact Exhibit-R14 Sale receipt was not filled has sold the vehicle to the present owner and thereafter the present owner has got transferred the R.C. in her name on 31/8/2005.
Further, the Tribunal has failed to consider that the sale receipt is incomplete in all respects and except the signature of cross objector and the vehicle number, the rest of the contents were filled up by the present owner. The Cross Objector had not sold the vehicle to the present owner. If really Cross Objector had sold the vehicle to the present owner, then, there is no necessity for him to approach the Insurer and get the policy cancelled as the O.D. claims settled on salvage basis.
Further, it is the case of the cross objector that the Tribunal has failed to consider that accident took place on 01/09/2005, on which date, the present owner was the owner of the vehicle. There is no occasion whatsoever to mis-represent the present owner by the Cross Objector/previous owner. Merely because the purchaser as per Exhibit-R2 did not obtain transfer of R.C., it does not mean that the Cross Objector has sold the vehicle to the present owner.
It is the further contention of the cross objector that the Tribunal proceeded on the basis that Exhibit-R28, the Insurance Policy was handed over to present owner. It is not so because, the very same document is produced in O.S. No. 239/2006 and marked as Exhibit-P17. In fact, the Cross Objector was not served with Notice and his address was wrongly shown in the cause title of the suit filed by present owner.
Further, the Tribunal has committed an error having come to the conclusion, the present owner is the owner of the vehicle as on the date of accident, without there being any basis has proceeded that the cross objector has misguided the present owner. If that were to be so, it is open to the present owner/appellant to approach the competent Court of law to proceed against the Cross-Objector. It is not the scope of the Tribunal to adjudicate the inter-se dispute and the interpretation of the provision of Section 55 of the Motor Vehicle Act is un-called for.
Therefore, he submitted that the finding recorded by the Tribunal fixing the liability to pay compensation on the cross objector is perverse and without any justification. The Tribunal has not properly applied the principle of law in its proper perspective. Hence the finding of fact recorded by Tribunal for fixing liability upon the cross objector is liable to be set aside at the threshold and the impugned judgment and award passed by Tribunal is liable to be modified.
As against this, learned counsel appearing for claimants, inter alia, contended and sought to substantiate the impugned judgment and award passed by Tribunal, stating that the same is strictly in consonance with the oral and documentary evidence available on file and interference in the same is uncalled for and setting aside the impugned judgment and award, at this stage and remanding the matter for reconsideration is not at all justifiable.
After careful consideration of the submission of the learned counsel appearing for the present owner/appellant, previous owner/cross objector and the claimants and after re-appreciation of the oral and documentary evidence available on file including the impugned judgment and award passed by Tribunal, it emerges that, occurrence of accident at about 1:30 P.M. on 01-09-2005 and the resultant death of deceased K.S. Nagasundara Sharma on account of the grievous injuries sustained are not in dispute. The claimants are none other than the wife and three children of deceased.
As rightly pointed out by the learned counsel appearing for the present owner/appellant, there is no specific reference and discussion regarding Ex. R12, the judgment and decree passed in R.A. No. 37/2006 filed by the appellant, wherein the said appeal was allowed, holding that the Insurance Company is liable to pay the compensation and the same is confirmed by the Appellate Court, on the ground that the vehicle was insured and insurance policy was valid and the said finding has reached finality. This aspect of the matter has not been looked into nor considered nor appreciated by the Tribunal.
Further, it is the specific case of the appellant that the vehicle in question was insured for the period between 19-02-2005 and 18-02-2006 and the accident occurred on 01-09-2005 and the sale of the vehicle was on 31-08-2005. Thus, as on the date of sale of the vehicle, the vehicle was duly insured and the policy was valid and in force and the claim of the Insurance Company that the policy was cancelled on 16-06-2005 on salvage basis cannot be accepted. This aspect of the matter also has not been looked into or considered or appreciated.
Further, it is the specific case of the cross objector that in spite of production of Ex. R2, the same has not been properly considered or discussed or appreciated and further, the Tribunal has failed to give any opportunity to cross examine.
I find some substance in the submission and stand taken by the learned counsel appearing for appellant in the memorandum of appeal and the learned counsel appearing for cross objector in the memorandum of cross objection. As rightly pointed out by them, these two aspects of the matter are to be considered by the Tribunal and a specific finding of fact is to be recorded by assigning valid and cogent reasons.
Therefore, without expressing any further opinion on the merits or demerits of the case, it would suffice for this Court, if the matter is remanded back to the jurisdictional Tribunal with appropriate direction to it to dispose of the same expeditiously, after hearing all the parties concerned.
In the light of the discussion made above, the appeal filed by the appellant/present owner and the cross objection filed by the cross objector/previous owner are hereby allowed.
The impugned common judgment and award dated 23rd February 2011, passed in MVC No. 808/2006 (old MVC No. 28/2006), by the VI Additional District Judge, Motor Accident Claims Tribunal, Mysore, is hereby set aside;
The matter stands remanded back to Tribunal for reconsideration and re-determination of compensation afresh and to pass appropriate order, in accordance with law, after affording reasonable opportunity of hearing to all the parties concerned, personally or through their counsel and dispose of the same, as expeditiously as possible, on top priority basis, not later than six months from the date of appearance of the parties;
All the parties are permitted to file necessary applications, for adducing additional oral and documentary evidence to substantiate their respective prayer; within four weeks from the date of receipt of a copy of this judgment;
In case such applications are filed by the learned counsel for the parties, within the time stipulated above, the Tribunal shall receive the same and proceed further and dispose of the same as expeditiously as possible, as directed above;
Further, without waiting for notice, the parties are hereby directed to appear before the jurisdictional Tribunal on 06-07-2015 at 11:00 A.M. personally or through their counsel, to enable them to take further dates of hearing;
Registry is directed to return the original records, if any, to the jurisdictional Tribunal, forthwith;
The amount in deposit in M.F.A. No. 4856/2011 filed by the present owner shall be transmitted to the jurisdictional Tribunal, forthwith.
Upon such transmission, the Tribunal shall invest the same in any nationalized Bank, until the final judgment to be passed by Tribunal, after remand;
All the contentions urged by all the parties in the appeal as well as the cross objection are left open.