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2015 DIGILAW 1339 (KAR)

S. Sathishkumar v. G. V. Chandra Shekar

2015-12-14

N.K.PATIL, P.D.WAINGANKAR

body2015
JUDGMENT : N.K. Patil, J. 1. These two appeals are by the claimants and the insurer being aggrieved by the impugned judgment and award dated 7.2.2013 passed in MVC. No. 1666/2010 on the file Additional Judge, Member, Motor Accidents Claims Tribunal, Court of Small Cause, Mayohall Unit, Bangalore, (SCCH-19), (for short, Tribunal'). The tribunal by the impugned judgment and award, awarded a sum of Rs. 29,53,200/- with interest at 6% per annum from the date of petition till the date of realization on account of death of Simi S. Pillai in the road traffic accident. It is the case of the insurer that the vehicle-bus is not at all involved in the accident and therefore the impugned judgment and award is liable to set-aside absolving the insurance company of its liability and also contended that the quantum of compensation awarded is disproportionate to the income of the deceased, hence the same is liable to be reduced. Whereas it is the case of the claimants that the quantum of compensation and the rate of interest awarded by the tribunal is inadequate and the same requires to be enhanced considerably. 2. It is the case of the claimants/husband and minor son of deceased Simi S. Pillai that they filed a claim petition under Section 166 of the M.V. Act claiming compensation on account of untimely death of deceased Simi S. Pillai in the road traffic accident that occurred on 9.2.2010 at about 8.30 a.m. That when the deceased was riding a scooter bearing registration No. KL-01-X-3564 observing all the traffic rules and regulations on Old Madras road near church, at that time, the driver of a bus bearing registration No. No. KA-01-C-6318 drove the said bus in rash and negligent manner and dashed against the scooter, due to which, deceased fell down, sustained fatal injury and succumbed to the injury. On account of untimely death of the deceased in the road traffic accident, they were constrained to file the claim petition, claiming compensation against the owner and insurer of the bus. The said matter had come up for consideration before the tribunal. The tribunal after taking into consideration the oral and documentary evidence and other material on record allowed the claim petition, awarding a sum of Rs. 29,53,200/- with 6% interest per annum from the date of petition till the date of realization. The said matter had come up for consideration before the tribunal. The tribunal after taking into consideration the oral and documentary evidence and other material on record allowed the claim petition, awarding a sum of Rs. 29,53,200/- with 6% interest per annum from the date of petition till the date of realization. Being dissatisfied with the quantum of compensation awarded and liability fastened, the claimants and insurer herein felt necessitated to file these appeals. 3. We have heard learned counsel appearing for the claimants and learned counsel appearing on behalf of the Insurer. 4. The submission of the learned counsel appearing for the insurer, Sri O. Mahesh at the outset is that the impugned judgment and award passed by the tribunal is liable to be set-aside and the matter may be remanded back to the tribunal for reconsideration of the matter afresh for the reason that, the claimants have neither examined the complainant, who is none other than cousin-brother of the deceased nor examined the driver of the bus to establish that the bus in question was involved in the accident and that on account of rash and negligent driving by the driver of the bus, the accident had occurred. The claimants except making oral submissions have not produced any credible documentary evidence. Therefore, a direction may also be issued to the owner to indemnify award amount, since the vehicle-bus in not at all involved in the accident and the claimants have failed to establish the same. Therefore, he submits that the impugned judgment and award is liable to be set-aside. 5. As against this, learned counsel appearing for the claimants, Sri. R. Krishna Reddy inter alia contended and sought to modify impugned judgment and award passed by the tribunal as the quantum of compensation awarded by the tribunal is inadequate. Further, he submits that due to non-availability of the complainant Sanjay Pillai, who is none other than cousin brother of the deceased, as he is residing abroad, they could not examine him. Further, he submits that due to non-availability of the complainant Sanjay Pillai, who is none other than cousin brother of the deceased, as he is residing abroad, they could not examine him. He is the eye-witness to the incident, who can speak about the involvement of the bus in question and establish that the accident occurred on account of rash and negligent driving by the driver of the bus and if one more opportunity is given to him, they would be able to establish that the bus bearing registration No. KA-01-C-6318 was involved in the accident and examine the driver of the said bus to prove the same and hence the impugned judgment and award may be set-aside and the matter may be remanded back to the tribunal for consideration of the matter afresh and all contentions of the parties may be left open. 6. In the light of the submission made by learned counsel for the parties and having regard to the facts and circumstances of the case, without expressing any opinion on the merits or demerits of the case, it would suffice for this Court if appropriate direction is issued to Tribunal to safe-guard the interest of both the parties. 7. Having regard to the peculiar facts and circumstances of the case, the instant appeals filed by the claimants and insurance company are allowed. The impugned judgment and award dated 7.2.2013 passed in MVC. No. 1666/2010 on the file of Additional Judge, Member, Motor Accidents Claims Tribunal, Court of Small Cause, Mayohall Unit, Bangalore, (SCCH-19), is hereby set-aside. Matters stand remitted back to the tribunal for fresh consideration and decide the same in accordance with law, after affording opportunity to both the parties, as expeditiously as possible, within a period of six months from the date of appearance of the parties before the tribunal. The claimants, insurer and owner are permitted to file necessary application for leading additional oral and documentary evidence within a period of four weeks from the date of receipt of copy of this judgment. In the event such application is filed, the tribunal shall consider and dispose of the same in compliance of direction of this Court, as stated supra. The claimants owner and the insurer shall appear before the tribunal personally or through their counsel on 9th February 2016 at 11.00 a.m. without further notice. In the event such application is filed, the tribunal shall consider and dispose of the same in compliance of direction of this Court, as stated supra. The claimants owner and the insurer shall appear before the tribunal personally or through their counsel on 9th February 2016 at 11.00 a.m. without further notice. All contentions of both the parties are left open. Further the tribunal is directed to issue notice to the owner and proceed further in accordance with law, as directed above. Registry is directed to return the original records to the tribunal forthwith. The amount in deposit by the appellant-insurer in MFA No. 3790/2013 shall be refunded to it forthwith. The jurisdictional tribunal is directed to invest the amount deposited by the insurer in pursuance of the interim order granted by this Court dated 26.4.2013 in MFA No. 3790/2013 in any Nationalized Bank, until final judgment is passed by it after remand. Registry is directed to transmit the statutory amount deposited in MFA No. 3790/2013 to the insurer through its counsel or authorized representative forthwith.