Usha Rameshan vs S. Udaya Chandran and Others

N.K. Patil, J.—These two appeals by the claimants are directed against the impugned common judgment and award dated 8th March 2012 passed in MVC Nos. 9137/2009 & 9136/2009 and on the file of the III Additional Senior Civil Judge and MACT, Bengaluru, (SCCH-18) (hereinafter referred to as ''Tribunal'' for short).

By its judgment and award, the Tribunal has allowed the claim petition filed by the claimant-injured in MVC No. 9137/2009 filed under Section 166 of MV Act and awarded a sum of Rs. 93,800/- with interest at 8% p.a., from the date of petition till its realization as against the claim made by the appellant and claim petition filed by the LRs of the deceased/claimant in MVC No. 9136/2009 has been dismissed. Being aggrieved by the impugned common Judgment and Award passed by the Jurisdictional Tribunal, the appellants felt necessitated to present these two appeals.

In brief, the facts of the case are:

"In MVC No. 9136/2009 the claimants are none other than the mother and father of the deceased Late Sri. Raghavendra and in MVC No. 9137/2009 the claimant/injured is mother of the deceased and they have filed claim petitions before the Tribunal under Section 166 of M.V. Act, claiming compensation on account of the death of the deceased in the accident against the respondents contending that, the deceased was driving Santro Car bearing No. KA-30-M-8008 along with his family members on Manaparai-Trichy road slowly and cautiously by observing traffic rules and regulations at moderate speed. On 3.05.2009 at about 7.30 a.m when they reached near Alamapattipudur, at that time, the driver of lorry bearing No. TN-23-AD-3444, came at a high speed and in a rash and negligent manner, so as to endanger human life, came to extreme right side of road and dashed against the Car from opposite direction. Due to the impact, the inmates of Car and driver sustained grievous injuries all over their body and on account of which, Raghavendra-driver of the Santro Car succumbed to the injuries on the way to hospital and inmates of the car, mother/claimant in MVC No. 9137/2009 sustained grievous injury and another two inmates, sister and sister''s son sustained injuries. Taking all these aspects, the claimants filed the claim petitions. The said claim petitions had come up for consideration before the Tribunal. The Tribunal after appreciating the oral and documentary evidence and other material available on record, has allowed the claim petition filed by the claimant in MVC No. 9137/2009 and dismissed the claim petition filed by the parents of the deceased in MVC No. 9136/2009, on the ground that accident has occurred due to the rash and negligent driving of the driver of the Santro Car-deceased. Not being satisfied with the impugned common Judgment and Award passed by the Tribunal, the appellants felt necessitated to present these two appeals, seeking appropriate reliefs."

The submission of Sri. Pilla Reddy, for D. Manmohan, learned counsel appearing for the appellants, at the outset is that, impugned common judgment and award passed by the Tribunal is liable to be set aside and the matter is liable to be remitted back to the Jurisdictional Tribunal to re-consider the matter afresh reserving liberty to the appellants to implead the driver of the vehicle involved in the accident and the appellants may be permitted to lead additional oral and documentary evidence. To substantiate his contention, he placed reliance on the Judgment of the Supreme Court in the case of Machindranath Kernath Kasar Vs. D.S. Mylarappa and Others, wherein at para Nos. 23 and 24, wherein it is held that driver of the vehicle involved in the accident is a necessary party and has to be impleaded as a party to the proceedings and without impleading the driver, the Tribunal cannot take decision for claim made by the claimants. He further placed reliance on Rule 235 of The Karnataka Motor Vehicles Rules, 1989 and submitted that if one more opportunity is afforded to the claimants they would be in a better position to establish their claim and all the contentions urged in the memorandum of appeal may be left open.

Per contra, Sri. Anup Seetharama Rao, appearing for Sri. B.C. Seetharama Rao, learned counsel appearing for respondent No. 3 and Sri. O. Mahesh, learned counsel appearing for respondent No. 4 submitted that in the light of the judgment passed by the Supreme Court in Machindranath Kernath Kasar Vs. D.S. Mylarappa and Others, and Rule 235 of Karnataka Motor Vehicles Rules, 1989, the impugned common judgment and award passed by the Tribunal may be set aside and appropriate direction may be issued to the Tribunal to reconsider the matter afresh in accordance with law, reserving liberty to both the insurers to file necessary application for leading additional oral and documentary evidence and all the contentions of both the parties may be left open.

In the light of the facts of the case and submission made by the learned counsel appearing for both the parties, as stated supra and also in the light of the judgment rendered in the case of Machindranath Kernath Kasar Vs. D.S. Mylarappa and Others, and as per Rule 235 of the Karnataka Motor Vehicle Rules, 1989, we are of the considered view that the impugned judgment and award passed by the Tribunal cannot be sustained at any stretch of imagination and is liable to be set aside, without expressing any opinion on merits and demerits of the case, in the interest of justice and equity.

Having regard to the facts and circumstances of the case, as stated supra, the two appeals filed by the claimants are allowed and the impugned common judgment and award dated 8th March 2012 in MVC Nos. 9137/2009 and 9136/2009 on the file of III Additional Senior Civil Judge and MACT, Bengaluru is hereby set aside.

Matter stands remitted back to the Jurisdictional Tribunal for re-consideration afresh and to decide the matter in accordance with law, after giving opportunity to all the parties and dispose of the matter as early as possible in any event, within a period of six months from date of appearance of the parties.

Further claimants and both the insurers are permitted to file necessary application for impleading and to adduce additional oral and production of additional documents within four weeks from the date of receipt of copy of this Judgment. In the event such application is filed, the Tribunal shall consider the same and pass appropriate orders and dispose of the matter as stated supra.

Without waiting for notice from Tribunal, the claimants and both the insurers are directed to appear before the Tribunal personally or through their counsel on 23rd November 2015 at 11.00 a.m to collect necessary date of further hearing.

The amount deposited by the insurer of Santro Car and the amount received by the injured/claimant/mother of the deceased Smt. Usha Rameshan is subject to the Judgment and Award to be passed by the Tribunal, after remand.

It is further clarified that the appellants/claimants are not entitled for any interest from the date of petition till the date of impleading the driver as party to the proceedings in case they succeed.

All contentions urged by all the parties are left open.