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Judgment
B. Sreenivas Gowda, J—MFA No. 30572/2008 is filed by the insurer of a Truck bearing registration No. KA-26/4581 challenging the judgment and award passed by the Tribunal on the ground of negligence and liability.
MFA No. 30322/2008 is filed by the claimants seeking enhancement of compensation awarded by the Tribunal.
As these two appeals are arising out of a common judgment passed in MVC No. 101/2007, with the consent of learned counsel appearing for the parties, they are heard together and disposed of finally by this common judgment.
As there is no dispute regarding a road traffic accident occurred on 04.01.2007 by involvement of a two trucks bearing registration No. KA-26/4581 and KA-35/D-5589 and death of driver of truck bearing registration No. KA-35/D-5589 person, the points arise for consideration in these appeals are;
"1. Whether the driver of the truck bearing registration No. KA-35/D-5589 had also contributed for the occurrence of accident?
Whether the finding of the Tribunal on negligence holding accident has occurred due to rash and negligent driving of the driver of the truck bearing registration No. KA-26/4581 is sustainable in law?
Whether the claimants in MVC No. 101/2007 prove that deceased driver of the truck No. KA-35/D-5589 is the husband of claimant No. 1, son of claimants No. 2 and 3 and father of claimant No. 4?
Whether the finding of the Tribunal on liability in fastening it on the insurer of the Truck bearing registration No. KA-26/4581 is sustainable in law?
Whether quantum of compensation awarded by the Tribunal is just and reasonable or does it call for enhancement?"
REGARDING NEGLIGENCE:
Sri Manavendra Reddy, learned counsel appearing for the insurer of truck bearing registration No. KA-26/4581 submits, the accident had taken place due to head on collision of both the trucks in the centre of Hospet-Sandur road as evident from the spot sketch and panchanama marked as Ex. R4 and further the driver of the truck bearing registration No. KA-35/D-5589 had driven the said truck in a rash and negligent manner without possessing a valid and effective driving licence and that accident had occurred due to rash and negligent driving of the driver of the truck bearing registration No. KA-35/D-5589. The Tribunal without considering this material aspect of the matter has committed an error in holding accident has occurred due to rash and negligent driving of the driver of the truck bearing registration No. KA-26/4581 at least it should have held accident had occurred due to contributory negligence of the drivers of both the trucks.
He submits, name of deceased who had driven the truck bearing registration No. KA-35/D-5589 is mentioned as Ramakrishna in the complaint and FIR marked as Ex. P.1 and 2 respectively. Whereas, his name in the PM report is mentioned as Ramesh @ Ramakrishna and in the cause title of the claim petition, his name is shown as Ramanna Uppar and in the body of the claim petition, his name is shown as Ramappa. Thereby, he contends, the identity of the deceased who had driven the truck bearing registration No. KA-35/D-5589 is under serious dispute and claimants have not produced any material to show that they are wife, parents and son of deceased. According to him, claimants are not related to the deceased and they are total strangers to the deceased. The Tribunal without considering this has committed an error in holding the person died in the accident is the husband, son and father of the claimants respectively. Therefore, he submits the insurer of the truck bearing registration No. KA-26/4581 is not liable to answer the claim.
Alternatively and without prejudice to the above contentions, he submits compensation already awarded by the Tribunal is more than just entitlement and there is no scope for enhancement and he prays for allowing the appeal filed by the insurer of the truck bearing No. KA-26/4581 and dismissing the appeal filed by the claimants.
Sri Harshavardhan R. Malipatil, learned counsel appearing for the appellants in MFA No. 30322/2008 submits, complaint was lodged against the driver of the truck KA-26/D-4581 based on which FIR was registered against him and police after investigating the complaint have laid charge sheet against the driver of the said truck which is not challenged either by the owner or the insurer of the said truck and therefore, Tribunal was justified in holding accident has occurred due to rash and negligent driving of the driver of the truck bearing registration No. KA-26/4581.
Learned counsel submits, the person who had driven the truck bearing registration No. KA-35/D-5589 is Ramanna Uppar and in the complaint lodged by Bhimashankar-brother of deceased he has mentioned the name of deceased as Ramakrishna. In the postmortem report name of deceased is shown as Ramakrishna @ Ramesh. Learned counsel submits, deceased who had driven the truck bearing registration No. KA-35/-5589 is none other than the husband, son and father of claimants Nos. 1, 2, 3 and 4 respectively. As no specific issue was framed by the Tribunal in this regard, claimants had no occasion to lead evidence to that effect. According to him, if a specific issue had been framed by the Tribunal, claimants could have adduced evidence and established that they are the wife, parents and son of deceased. Therefore, he submits, matter needs to be remanded to the Tribunal with a direction to frame an issue in this regard and reconsider the claim petition afresh.
Learned counsel further submits, claimants would not withdraw the amount of compensation invested in FD and they have no objection for this Court to direct the Tribunal to secure the FD amount and arrange for re-deposit of the said amount in any nationalized Bank in the name of the Tribunal till the date of reconsideration of the claim petition afresh. His submission is placed on record.
Regarding liability he submits, since accident had occurred due to rash and negligent driving of the driver of the truck bearing registration No. KA-26/4581 on account of which the driver of the truck bearing registration No. KA-35/D-5589 died, the Tribunal was justified in fastening liability on the insurer of the truck bearing registration No. KA-26/4581.
Regarding quantum he submits compensation awarded by the Tribunal is on the lower side, therefore, he prays for allowing the appeal filed by the claimant and dismissing the appeal filed by the insurer of the truck bearing registration No. KA-26/4581.
There is no dispute between the parties that accident has taken place on 4.1.2007 on Sandur-Hospet road by involvement of two trucks bearing registration Nos. KA-26/4581 and KA-35/D-5581. It is also not in dispute that in the said accident the driver of the truck bearing registration No. KA-35/D-5581 sustained injuries and succumbed to the injuries.
The dispute between the parties is; whether the person who had driven the truck bearing registration No. KA-35/D-5589 and died in the accident is the husband, son and father of claimants in MVC No. 101/2007.
In the FIR and the complaint marked as Ex. P.1 and P.2 respectively, name of deceased is shown as Ramakrishna. Whereas in the PM report Ex. P. 5 his name is shown as Ramakrishna @ Ramesh, whereas in the claim petition claimants have described his name as Ramanna Uppar. Thus, name of deceased is shown differently in the complaint, FIR, PM report and the claim petition. The insurer of the truck bearing registration No. KA-26/4581 in their statement of objections filed in the claim petition before the Tribunal have specifically contended that identity of deceased who had driven the truck bearing registration No. KA-35/D-5589 is under serious dispute. At the same time, claimants had also not produced any material like ration card, voters list, election identity card, educational testimonials or any other record to show deceased whose name is shown as Ramakrishna, Ramakrishna @ Ramesh, Ramanna Uppar is one and the same person and he is the husband of claimant No. 1, son of claimants No. 2 and 3 and father of claimant No. 4 and related to the claimants. Inspite of the specific stand taken by the insurer of the Truck No. KA-26/4581 the Tribunal had failed to frame an issue calling upon the claimants to prove and establish that they are the wife, parents and son of deceased. There is force in the argument advanced by the learned counsel appearing for the claimants that in the absence of such an issue framed by the Tribunal, they had no occasion to lead evidence to that effect. In that view of the matter, it is just and necessary to set aside the judgment and award passed by the Tribunal and remand the matter to the Tribunal with a direction to frame an issue in this regard and reconsider the claim petition afresh.
Since the findings of Tribunal on negligence, liability and quantum are also under challenge, it would be appropriate to direct the Tribunal to reconsider these issues also. Points framed for consideration are answered accordingly. Hence, the following:
ORDER
Both the appeals are allowed. The Judgment and Award dated 18.09.2008 passed in MVC No. 101/2007 on the file of Motor Accident Claims Tribunal, Muddebihal is set aside.
The matter is remitted to the Tribunal with a direction to reconsider the claim petition afresh after framing an appropriate issues with regard to the identity of the deceased and his relationship with the claimants and to reconsider the issues relating to negligence, liability and quantum afresh after affording opportunity to all the parties and in accordance with law.
The Tribunal is directed to get back the compensation amount invested in Fixed Deposits in the name of claimants and order for reinvestment of the said amounts in FD in the name of the Tribunal in any nationalized Bank till disposal of the case and order for disbursement of the same depending upon the result of the claim petition and until then claimants are directed not to withdraw the compensation amount kept in FD in their names and it is also open to the insurer of the Truck bearing registration No. KA-26/4581 to move the Tribunal for passing necessary order in this regard.
Since claimants and the insurer of truck bearing registration No. KA-26/4581 are represented through their counsel, they are directed to keep themselves present before the Tribunal on 30.09.2015 and claimants to take steps to issue notice to other respondents without seeking unnecessary adjournments.
Amount deposited in the appeal of the Insurance Company is ordered to be transmitted to the Tribunal with a direction to invest it in FD in any nationalized Bank till disposal of the case. It is needless to say, if the insurer of the truck bearing registration No. KA-26/4581 succeeds in getting claim petition dismissed, are at liberty to initiate proceedings for recovery of the amount if any already withdrawn by the claimants.
No order as to costs.