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Judgment
N.K. Patil, J.
M.F.A. Crob. No. 200/2011 and M.F.A. No. 10219/2010 are respectively filed by the claimants of deceased T.A. Vasu and National Insurance Company Limited against the judgment and award dated 15th September, 2010, passed in MVC No. 55/2008, by the Civil Judge (Sr. Dvn.) and Motor Accident Claims Tribunal, at Virajpet; and M.F.A. No. 1591/2012 is filed by the LRs. Of deceased T.A. Vasu against the common judgment and award dated 4th October, 2011, passed in MVC No. 182/2008, by the Civil Judge (Sr. Dvn.) and Motor Accident Claims Tribunal, at Virajpet.
While the claimants of deceased T.A. Vasu has filed the appeal seeking enhancement of compensation on the ground that the compensation of Rs. 3,29,500/- awarded by Tribunal is on the lower side, the Insurer has filed the appeal on the ground that the liability fastened on it by the Tribunal is not justified, without fixing any percentage of negligence on the part of the deceased driver of the offending vehicle and also erred in awarding higher compensation; and the claimants of deceased T.A. Vasu have filed another appeal, on the ground that, the Tribunal grossly erred in fastening the liability on both the owner and deceased driver of the offending vehicle, jointly and severally to indemnify the award, instead of fastening the entire liability on the registered owner of the offending vehicle alone.
On account of the untimely and unnatural death of the deceased T.A. Vasu, the claimants, who are none other than the wife and children of deceased filed claim petition in M.V.C. No. 55/2008. The said claim petition had come up for consideration before Tribunal on 15th September, 2010. The Tribunal, after considering the relevant material available on file and after appreciation of the oral and documentary evidence, allowed the claim petition in part, awarding a sum of Rs. 3,29,500/- with 6% interest per annum from the date of petition till the date of realization on account of the death of deceased T.A. Vasu and directed the Insurer, i.e. National Insurance Company Ltd. To indemnify the same. Being aggrieved by the same, the claimants and Insurer are in appeal before this Court, seeking appropriate reliefs as stated supra.
On account of the injuries sustained in the road traffic accident, the injured claimant filed claim petition in M.V.C. No. 182/2008. The said claim petition had come up for consideration before Tribunal on 4th October, 2011. The Tribunal, after considering the relevant material available on file and after appreciation of the oral and documentary evidence, allowed the claim petition in part, awarding a sum of Rs. 1,76,250/- with 6% interest per annum from the date of petition till the date of realization on account of the death of injuries sustained in the road traffic accident and directed the owner and driver, i.e. LRs. Of driver, T.A. Vasu to indemnify the award, jointly and severally. Being aggrieved by the same, the LRs. Of T.A. Vasu are in appeal before this Court, seeking to set aside the same by modifying the impugned judgment and award.
We have gone through the grounds urged in the memorandum of appeal filed by claimants of deceased T.A. Vasu, Insurer and the LRs. Of deceased driver, T.A. Vasu in all the three appeals and heard the learned counsel appearing for claimants of deceased T.A. Vasu, Insurer and also the LRs. Of deceased driver, T.A. Vasu, for quite some time.
It is the case of the claimants/cross objectors in M.F.A. Crob.200/2011 that the compensation awarded by Tribunal on account of the death of the deceased T.A. Vasu is on the lower side and liable to be enhanced.
Further, the learned counsel appearing for cross objectors submitted that when two vehicles were involved in the accident, and the other vehicle was also duly insured with the Insurer, the Tribunal ought to have fixed reasonable negligence on the part of the insurer of the other vehicle also, i.e. Oriental Insurance Company Ltd. Therefore, he submitted that the impugned judgment and award passed by Tribunal is liable to be set aside, by fixing reasonable contributory negligence on the part of the insurers of both the vehicles.
He also submitted that due to lack of knowledge and inadvertence, they could not examine the eye witnesses, who are inmates of the Car and in fact, they have produced the Driving licence for having valid Driving Licence which was marked as Ex. P20, which is very much available in the original records at red ink page.61. The same has not been looked into or considered by this Court. Therefore, he submitted that the impugned judgments and awards passed by Tribunal in both the Cases, i.e. M.V.C. No. 55/2008 and M.V.C. No. 182/2008 are liable to be set aside and the matter be remanded back to the Tribunal, for reconsideration afresh, reserving liberty to the parties, to file necessary application for adducing additional oral and documentary evidence and all the contentions of the claimants/cross objectors be left open.
It is the submission of the learned counsel appearing for National Insurance Company Limited in M.F.A. No. 10219/2010 that the impugned judgment and award passed by Tribunal is liable to be set aside. To substantiate the said submission, he pointed out and submitted that, the claimants/cross objectors had earlier filed an application under Section 166 of Motor Vehicles Act, seeking compensation and during the pendency of the said proceedings, after coming to know that the deceased himself was responsible for the cause of accident, have filed the application, seeking to convert the claim petition under Section 163-A of the Motor Vehicles Act, restricting the income of the deceased at Rs. 40,000/- per annum and the Tribunal also, without considering the position of law, allowed the said application and permitted to convert the petition to one under Section 163-A of the Act and awarded compensation of Rs. 3,29,500/-. The same cannot be sustained and liable to be set aside.
He further submitted that the Tribunal is not justified in fastening the entire liability on the National Insurance Company Limited, when there is involvement of two vehicles in the cause of accident. The Tribunal, at least, ought to have fixed some percentage of negligence on the part of the driver of the other vehicle also. Therefore, on this count also, the impugned judgment and award passed by Tribunal cannot be sustained and liable to be set aside and the matter be remanded back to Tribunal for reconsideration afresh, reserving liberty to the insurer to file necessary application for adducing additional oral and documentary evidence and all the contentions urged by them in the appeal be left open.
As against this, learned counsel appearing for claimants/cross objectors submitted that they have filed the application seeking to convert the claim petition from Section 166 of the M.V. Act to Section 163-A of the Act and the Tribunal, after hearing both sides, has allowed the application and permitted the claimants/cross objectors to convert the same. Therefore, it is not fair or permissible for the Insurer, at this stage, to take such a stand before this Court that the Tribunal ought not to have allowed the said application, permitting the claimants to convert the application from Section 166 of the Motor Vehicles Act to 163-A of the Act.
It is the submission of the learned counsel appearing for Oriental Insurance Company that the accident has occurred solely on account of the rash and negligent driving by the driver of the Santro Car itself and therefore, the claimants are not entitled to claim any compensation against the Insurer of the other vehicle and the Tribunal has rightly fixed the entire negligence on the part of the driver of the Santro car in M.V.C. No. 55/2008. Hence, interference in the impugned judgment and award passed by Tribunal is uncalled for.
After careful consideration of the submission of the learned counsel appearing for both the parties, perusal of the impugned judgment and award passed by Tribunal, including the original records placed before us, it emerges that, occurrence of accident and the resultant death of deceased T.A. Vasu and injures sustained by the claimant in M.V.C. No. 182/2008 are not in dispute. Claimants/cross objectors are none other than the Legal heirs of deceased T.A. Vasu who was driving the Santro Car. It is further not disputed that the Santro Car was insured with the National Insurance Company Limited and the Maruthi Car was insured with the Oriental Insurance Company Limited. Ex. P20 is the notarized copy of D.L., which is very much available in the original records at red ink page.61. But, there is no reference or discussion in the entire judgment regarding the same. Further, it is significant to note as rightly pointed out by the learned counsel appearing for National Insurance Company Limited that when they have taken a specific stand in their objections, the same has not been considered by the Tribunal in a proper perspective Therefore, in view of non consideration of the entire material available on file, the impugned judgments and award passed by Tribunal in M.V.C. No. 55/2008 and M.V.C. No. 182/2008 cannot be sustained and we are of the view that the matter requires reconsideration by the Tribunal and decide the same, after affording reasonable opportunity of hearing to the parties, framing necessary issues for consideration.
In the light of the submission of the learned counsel appearing for all the parties, without expressing any opinion on the merits or demerits of the case, it would suffice for this Court if the matter is remanded back to Tribunal, to meet the ends of justice and to safeguard the interest of all the parties concerned, with a direction to it to reconsider the matter and dispose of the same, as expeditiously as possible.
In the light of the discussion made above and in the light of the submission of the learned counsel appearing for all the parties and the facts and circumstances of the case, the cross objection and the two appeals are allowed.
"The impugned judgments and awards dated 15th September, 2010, passed in MVC No. 55/2008, and dated 4th October, 2011, passed in MVC No. 182/2008, by the Civil Judge (Sr. Dvn.) and Motor Accident Claims Tribunal, at Virajpet. are hereby set aside;
The matters stand remanded back to Tribunal for reconsideration of the matter afresh and to pass appropriate order, in accordance with law, after affording reasonable opportunity of hearing to all the parties, personally or through their counsel and dispose of the same, as expeditiously as possible, at any rate, not later than six months from the date of appearance of the parties.
Without waiting for any notice, all the parties are directed to appear before the jurisdictional Tribunal on 15-06-2015, at 11:00 A.M., to take further dates of hearing.
Parties are permitted to file necessary application/s, for adducing additional evidence, oral/documentary, to substantiate their respective cases within four weeks from the date of receipt of a copy of this judgment;
In case such application/s is/are filed by the learned counsel for the parties, within the time stipulated above, the concerned Tribunal is directed to receive the same and proceed further and dispose of the same as expeditiously as possible, in compliance of the direction given by this Court, as above;
Registry is directed to return the entire original records, if any received to the jurisdictional Tribunal, forthwith.
Registry is also directed to refund the amount deposited in M.F.A. No. 10219/2010 to the Insurer, through its authorized representative or counsel and the amount deposited in M.F.A. No. 1591/2012 to the appellants/claimants/cross objectors/respondents 5 to 7 in M.V.C. No. 182/2008, through the counsel, forthwith.
All the contentions urged by all the parties are left open."