D LAKSHMANA MURTHY Vs. V RAJESH

JUDGEMENT

(1.) THIS appeal arises from the judgment and award dated 3. 10. 91 delivered by the Motor Accidents Claims Tribunal, Bangalore City, awarding Rs. 25,500 as compensation together with costs and interest at the rate of 6 per cent per annum from the date of petition till the date of payment within three months. It further ordered that out of the award amount, a sum of Rs. 2,500 with full interest and costs should be paid to next friend of the petitioner to meet the medical and other expenses and the balance of the amount awarded shall be deposited in fixed deposit in the name of the petitioner-respondent no. 1 in some nationalised bank during the minority of the petitioner and the next friend of the petitioner being the natural guardian is entitled to withdraw the inter est accruing on said deposit. The Tribunal made the appellants, i. e. , the owner and driver of the vehicle to be liable to pay the amount of compensation. The owner and driver having felt aggrieved from the award, have come up before this court.

(2.) THE Tribunal, no doubt, had made a casual observation that there is no clear, convincing and cogent evidence placed on record to show that the trailer was also plying at the relevant time and was also involved in the accident and as the tractor was not covered by the policy of insurance, the respondent No. 4 ingeniously pleaded that the trailer was also involved in the accident only with a view to saddle the insurance company with the liability and to help the petitioner. In the written statement the owner of the vehicle had averred that at the time and on the date of the accident and occurrence the trailer was attached with the tractor. Looking to the Tribunal's observations it appeared to me that Tribunal ought to have framed the issue, whether at the time of accident trailer was also being plied along with the tractor and a finding on this issue should be recorded after giving the parties an opportunity for leading evidence on the point as to whether the trailer was also attached with the tractor or tractor was attached with the trailer in question and both were plying as goods vehicle and if so, court could have considered other questions. With this additional issue which had to be tried, it was remanded back to the Tribunal, But, I feel sorry to mention that the Tribunal in spite of an additional issue being remanded to it, failed to record any specific finding on the issue. It had to decide and record a specific finding on the question whether trailer was also attached to the tractor as goods vehicle. It could have recorded the finding in negative if there was no evidence. But the Tribunal did not record any specific finding. It only recorded a finding that the accident was caused by tractor and then proceeds to observe that tractor and trailer were attached to each other, but both should have been insured to make the insurance company liable. The legal question is a different question. But the Tribunal has not recorded any finding on the issue for the determination of which the case was remanded back. I am unable to understand why the Member of the Tribunal failed to understand the purport of additional issue no. 1 which was framed and sent fo it. Anyway, the additional issue No. 1 which had been remanded had been sent for recording a finding after parties were allowed to lead evidence on the plea taken by them. But the owner of the vehicle did not think it fit to utilise that opportunity to lead necessary and proper evidence on that point. The Tribunal in its order has already observed that there is no clear or cogent evidence placed on record to show that trailer was also plying at the relevant time and so also involved in the accident. Since after that finding recorded by the Tribunal in its original order dated 3. 10. 1991, the position has not improved. The finding is that accident had been caused by the tractor and the tractor had not been insured. Neither the claimants nor the owner of the vehicle have led any evidence to show that the trailer was attached to the tractor and tractor was being plied on the road. If the appellant did not wish to utilise the opportunity and he was unable to place any evidence, it is his own fault. It has to be taken that there is no evidence additional to what was led at original stage, i. e. , before remand. The claimant or the injured, PW 1, is silent on this aspect of the matter. He states that at the time of the accident, a tractor came from hind side with great speed and dashed against his cycle, 1 lost consciousness on account of the injuries. When the injured suffered injuries at the time of the accident when he lost consciousness, he only took note that tractor hit him. Beyond that he could not note. The other witness who has been examined on behalf of the respondent before the claims Tribunal is Narayana Swarny, RW 1. He has deposed that when tractor and trailer in question were proceeding near siddalingaiah Circle, a cyclist suddenly came and dashed against the trailer. The cyclist sustained injuries. He was cross-examined by the learned counsel. He says:

(3.) ON behalf of the insurance company, mr. H. G. Ramesh, learned counsel, placed reliance on a single Judge's decision of this court in the case of Oriental Insurance co, Ltd. v. N. Chandrashekara, 1997 ACJ 512 (Karnataka), to press his contention that as the tractor was not insured, though trailer was insured, the insurance company will not be liable for paying compensation as the accident and the injury was caused because of tractor which was not insured. Before I proceed to consider his case, I think it appropriate to make a reference to certain provisions of the Act. The expression 'motor vehicle' has been defined under section 2 (18) of the Motor Vehicles act, 1939 as under: