(Prayer: This Miscellaneous First Appeal is filed under Section 173(1) of MV Act against the Judgment and Award dated 29.12.2014 passed in MVC No.391/2014 on the file of the 5th Additional Small Causes Judge, 24th ACMM, Member, MACT, Court of Small Causes, Mayo Hall Unit, Bengaluru, awarding a compensation of Rs.20,10,000/- with interest @ 6% p.a from the date of petition till the date of its realization.)
Anand Byrareddy J.
1. Heard the learned counsel for the appellant. The respondents having been served remain unrepresented. The appellant is the Bengaluru Metropolitan Transport Corporation represented by its Managing Director and being aggrieved by the judgment and award in favour of the respondents, who are said to be the widow and children of deceased who died as a result of a motor accident involving a bus belonging to the appellant, the present appeal is filed.
The facts as recorded by the Tribunal are that on 21.12.2013 at about 9.05 p.m. when the deceased, one Siddaiah, was riding on his motorcycle bearing No.KA 52 H 9273 on Chennasandra main road near Kateramma temple, White Field, Bengaluru. It transpires that the bus belonging to the appellant bearing No.KA 01 FA 1175 coming from Chennasandra and going towards Tirumala Shettyhalli, was allegedly being driven at a high speed and negligently and the said bus is claimed to have dashed against the motorcycle which Siddaiah was riding and as a result of the impact he had fallen under the right side rear wheels of the bus and sustained grievous injuries and is said to have died on the way to hospital. It was in this background that a claim was lodged only against the appellant herein and the claimants did not choose to implead either the owner of the vehicle or the insurer of the concerned vehicle. The total claim was for a sum of Rs.20 lakh under various heads and the Tribunal has ultimately awarded a sum of Rs.20,10,000/- with 6% interest and apportioned compensation to the claimants while also directing certain amount to be kept in deposit. It is that which is under challenge in the present appeal.
The learned counsel for the appellant Shri D Vijaya Kumar would contend that the finding of the Tribunal as to the accident having occurred mainly due to the rash and negligent driving of the driver of the bus involved is not justified. It is pointed out that the complainant who had informed the police about the accident was admittedly not an eye witness. It is found from the sketch which is drawn of the accident spot, that the spot where the impact had occurred between the motorcycle ridden by the deceased and the bus is shown on the extreme left side of the road. However, the complaint would indicate that the deceased was found under the rear right side wheels of the bus which is totally inconsistent. This is unexplained. Further there appears to be want of diligence on the part of the appellant which itself in not having examined the driver of the bus who was in the best position to speak about the manner in which the accident had occurred. According to the learned counsel for the appellant from his instructions it appears that the deceased was actually over taking the bus on the right side and had collided with another motorcycle coming from the opposite direction and as a result of the collision between the two motorcycles the deceased had fallen down and had been run over by the bus. It was not on account of any act on the part of the driver, but it was the sheer negligence on the part of the deceased himself in having over taken the bus and it is found that it was not a very wide road.
The learned counsel would submit that the deceased having over taken the bus in a rash and negligent manner and having collided with the motorcycle coming from the opposite direction had fallen and had been run over by the bus and therefore it is evident that the driver of the bus was not in a position to stop the vehicle and it is in this fashion that he has been run over, not by the front wheel of the bus, but the rear wheel which would indicate that there was no negligence on the part of the driver of the bus. Therefore, the very manner in which the accident is said to have taken place is in serious doubt as there is complete inconsistency as between the complaint and the sketch that is drawn. The author of the sketch has not been examined as a witness and therefore it is in serious doubt as to the manner in which the accident had occurred. Secondly, the appellant had also not chosen to examine the driver who would have spoken about the manner in which the accident had occurred. This is again a lapse on the part of the appellant itself. Further in so far as the claim itself is concerned, it is pointed out that the claim is exaggerated. The deceased was said to be a bone setter working at Yentaganahalli. The mode of transport he was using was a two wheeler and therefore except the claim that he was a bone setter and that he was earning certain amount of money. There is no cogent evidence of his earnings or the basis for the claim for compensation. The claim was for a sum of Rs.20 lakh whereas the Tribunal has awarded a sum of Rs.20,10,000/- indicating thereby that the entire claim as laid by the claimants has been allowed. It is unfortunate and results in a grave miscarriage of justice. It is evident that the matter has not been contested in the proper manner and in the absence of any cogent evidence on the part of the claimants. The claim having been allowed compounds the seriousness of the loss that is caused to the appellant and hence would seek that the matter be remanded, especially since the claimants are not before the court though they have been served, they have remained absent and are unrepresented.
Therefore, if the matter is remanded for a fresh consideration by the Tribunal leaving all questions open, it would be for the claimants to establish their case to the satisfaction of all and the claimants may even be entitled to just and fair compensation. Therefore, he would submit that the Tribunal may also be directed to implead the owners of the two motorcycles involved as well as the respective Insurance Companies of the vehicles.
In the above background we are of the opinion that though the arguments canvassed on this appeal are one sided, since the respondent claimants have remained absent and are not represented in view of the serious inconsistencies that are pointed out and the fact that the claim has gone unchallenged and the Tribunal having thought it fit to award the compensation as prayed for, while also awarding certain additional amounts would certainly appear to be odd. Further when the proper and necessary parties were also not impleaded, the claim having been allowed would require to be reconsidered and the manner in which the accident has occurred also requires to be revisited as there is serious doubt of the manner in which it is claimed to have occurred. Therefore, it is a fit case which requires to be reconsidered by the Tribunal not only as regards the genuineness of the claim, but also the basis for compensation which does not seem to be adequately supported with acceptable evidence. Accordingly, the appeal is allowed. The judgment and award of the Tribunal is set aside. The matter is remanded for a fresh consideration by the Tribunal with the further direction to direct the respective owners of the two motorcycles and the respective Insurance Companies who may have insured the said vehicles being made parties to the proceedings and thereafter to consider the claim afresh with liberty to be granted to the claimants to lead fresh evidence as well as the respondents, also to lead fresh evidence in respect of their defence. The appeal is accordingly allowed. The amount in deposit may be refunded subject to the result of the further proceedings.