(Prayer: This MFA is filed under Section 173(1) of the Motor Vehicles Act against the Judgment and Award dated 21.12.2009 passed in MVC No.1707/2007 on the file of the Presiding Officer, Fast Track Court, Mangalore and Member, MACT, Mangalore D.K., awarding a compensation of Rs.20,000/- with interest @ 6% p.a. from the date of petition till the date of realization.)
1. Heard the learned counsel appearing for the appellant and the learned counsel appearing for respondent No.1. The respondent No.2 though served remained unrepresented.
2. The short question that arose for consideration, in this appeal is that
Whether the Tribunal has a duty and required to give a finding on the issue framed with regard to the negligence in a petition filed under section 163-A of the Motor Vehicles Act. If so, under what circumstances?
3. The respondent No.1 has preferred a claim petition in MVC No.1707/2007 claiming compensation for the injuries sustained by him in a Motor Vehicle Accident took place on 27.6.2007 at about 8.45 a.m., at Thokkottu, Mangalore Taluk on N.H. No.17.
4. The brief factual matrix of the case is little bit important in this particular case:
It is the case of the petitioner that on 27.6.2007 at about 8.45 a.m., while he was driving an Auto Tempo bearing registration No.KA-19/B-4769 towards Mangalore from Someshwara side, when he reached a place called Thokkottu on N.H.17, at that time a lorry bearing Registration No.KA-19/AB-4777, which was proceeding in front of the petitioner s vehicle, suddenly stopped by applying brakes without giving any signal. Therefore, the auto tempo dashed against the rare portion of the lorry. Due to which, the petitioner sustained injuries. He was shifted to Unity Health Complex, Mangalore and took treatment there. The Insurance Company sofar as this particular aspect is concerned, has taken up a plea in the written statement denying the above said factual aspects narrated by the claimant and fastening negligence on the driver of the lorry. Apart from denying all the allegations including the injuries sustained and the compensation claimed by the claimant, the above legal point is also raised.
5. Basing on the rival contentions, the Tribunal has framed three issues which are as follows:
(1) Whether the petitioner proves that on 27.6.2007, at about 8.45 a.m., when he was going towards Mangalore side from Someshwara side by driving his Auto Tempo bearing No.KA-19/B-4769 near Thokkottu, the accident occurred solely due to the rash and negligent driving of the lorry bearing No.KA-19/AB-4777 by its driver?
(2) Whether the petitioner further proves that he has sustained injuries in the accident?
(3) Whether the petitioner is entitled to the compensation. If so, to what amount and from whom?
6. The learned counsel for the appellant strenuously contends before this Court that when the Court has framed a specific issue on the basis of the pleadings of the parties, particularly casting burden on the claimant to prove that the accident has occurred solely due to the rash and negligent driving of the lorry bearing Registration No.KA-19/AB-4777 by its driver. When the burden is cast upon the claimant, the Tribunal ought to have given a finding whether that burden has been discharged by the petitioner or not. But the Tribunal, in a very casual manner has said, that issue need not be answered by it only for the reason that, the petition was filed u/s.163-A of the MV Act.
7. The learned counsel for the appellant has strenuously contended that if Section 163-A of the MV Act is properly understood, it is the burden cast upon the claimant to prove the negligence though Section 163-A is exempted the claimant from proving negligence, but the said section does not exempt the respondent No.1 in proving the negligence of the claimant himself, so as to exonerate the appellant company from the liability or to apportion the liability. Therefore, the learned counsel contended that the Tribunal ought to have considered this point in a proper perspective and ought to have answered the said issue considering the evidence on record.
8. Per contra, the learned counsel appearing for respondent No.1 contended that Section 163-A of the Motor Vehicles Act, 1888, if it is read in proper perspective, it only says that the claimant has to prove only the use of the vehicle or vehicles to prove the accident, that itself is sufficient to claim compensation under the above said provision.
9. On the above said rival contentions, I have carefully perused Section 163-A of the Motor Vehicles Act, 1988 which reads thus
163-A Special provisions as to payment of compensation on structured formula basis-
(1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorized insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be.
Explanation For the purposes of this subsection, permanent disability shall have the same meaning and extent as in the Workmen s Compensation Act, 1923 (8 of 1923).
(2) In any claim for compensation under sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person.
(3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule
The first part of the above said provision clearly indicates that, the claimant who claims compensation before the Tribunal has to show that the death or permanent disablement occurred due to accident arising out of the use of a motor vehicle or vehicles, compensation as indicated in the II schedule, to the legal representative or to the victim, as the case may be has to be awarded. The entire Section has to be reading in consonance with each other. Sub clause (2) of the said provision also discloses that if any claim for compensation under sub section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles. Therefore, it clearly indicates that it is only the claimant who need not prove the negligence, wrongful act or default in this regard. But, it will not preclude the respondent, who has taken the plea of negligence on the driver of the vehicle or vehicles or on the claimant, and that he was not negligent as on the date of the accident. In such an eventuality, the person who takes up the plea, has to establish before the courts and prove to the satisfaction of the Court that he was not negligent on that particular day. Merely because a vehicle has been involved in the accident, though an initial inference can be drawn in view of the above provision in favour of the claimant, but it will not preclude a party other than the claimant from proving that there is no negligence on his part, when particularly two or more vehicles are involved. In such an event he should be given an opportunity to establish the same before the Court. Therefore, on careful understanding of the particular provision, it clearly disclose that it only excludes the claimant from proving negligence on the part of the other vehicles, but it definitely entitles any other party other than the claimant to establish the said aspect.
10. Though the learned counsel for the appellant tried to take me through the evidence on record on merits of this point, I am reluctant to give any finding on issue No.1 on merits as, the Tribunal has not recorded any finding on the said issue. Therefore, it is the fundamental duty of the Tribunal to record a finding sofar as issue No.1 is concerned. Hence, the matter deserves to be remitted to the Tribunal for fresh disposal, after providing opportunity to both parties if need be to lead further evidence if any and by giving finding on issue No.1, the Court has to dispose of the case. If necessary, the court can re-cast issues casting the burden on the respondent No.1 to prove that particular issue.
11. In view of the above said discussion, I pass the following:
The appeal is allowed. The judgment and award passed in MVC No.1707/2007 dated 21.12.2009 by the FTC and MACT, Mangalore, D.K. is hereby set aside. The matter is remitted to the Tribunal with a direction to re-cast issue No.1 if necessary and dispose of the petition afresh within six months from the date of receipt of a copy of this order. The Tribunal is also directed to provide opportunity to both the parties to lead additional evidence if any. The amount deposited by the Insurance Company is ordered to be refunded to the Insurance Company.
Office to return the records of the Tribunal forthwith along with the copy of this order.