B.S. Indrakala, J.@mdashThough the matter is posted for Admission, with the consent of the learned Counsel for both parties, the same is taken up for final disposal. This above appeal is directed against the judgment and award dated: 11.08.2010 passed in MVC No. 260/07 on the file of the Member, Additional MACT, Ramanagaram.
2. The brief facts leading to the filing of the said case are that the claimant who was aged about 26 years, being driver was earning Rs. 6,500/- p.m. and while he was trying to cross the road near New Sayyaji Rao Road at Mysore City, the Innova Car bearing registration No. KA-51-TRN-9332 being driven by its driver in rash manner, came in high speed; dashed against him and caused the accident, on account of which, he sustained fracture of both bones in middle 1/3rd of the left leg and become disabled, etc., and in the circumstances, he sought compensation from the respondents.
3. The respondent/insurer in its statement of objections filed, while denying all the contentions of the claimant with regard to cause of accident, age, avocation, income, nature of injuries, etc., has specifically pleaded that the liability, if any, same is subject to terms and conditions of the policy.
4. The claimant to prove his case got himself examined as P.W.1, besides examining two doctors as P.Ws. 2 and 3 and got marked Exs. P.1 to 12. On behalf of the respondents, one witness is got examined as R.W. 1 and Exs. R. 1 to 6 are got marked.
5. The Tribunal by considering the evidence placed on record and by observing that the documents revealed that the claimant had consumed alcohol, at the time when he met with the accident deemed it fit to dismiss the petition.
6. Aggrieved by the said judgment and award, the claimant is in appeal inter alia contending amongst other grounds that the order of dismissal of the petition in toto is not proper nor justified and the Tribunal is totally prejudiced mainly because the hospital record showed that at the time of the accident, the appellant was under the influence of alcohol and erroneously has come to the conclusion that the accident occurred due to his own negligence. Further the Tribunal also failed to consider the plea of the driver of the vehicle before the Tribunal pleading guilty to the accident as a material piece of evidence. It also failed to consider the non availability of degree of intoxication and also as to whether the appellant was effected by such intoxication or not and in the circumstances, the claimant seeks setting aside of the judgment and award passed by the Tribunal.
7. Learned Counsel for the appellant submitted that except mere mentioning in the wound certificate that the claimant had consumed alcohol, there is no other record available with regard to the percentage of intoxication, the effect of intoxication or as to whether the appellant had lost control over himself which resulted in involvement in the accident etc., and in the circumstances, the observation of the Tribunal taking into consideration such a stray observation in the wound certificate with regard to consumption of alcohol and dismissing the claim petition itself is not proper and hence seeks setting aside of the judgment and award.
8. Per contra, learned Counsel for the insurer submitted that on the facts and circumstances of the case, whatever judgment is passed by the Tribunal is just and proper and the same does not call for any interference.
9. In view of the submissions made the point that arise for consideration are:
(i) Whether the impugned judgment and award passed by the Tribunal is liable to be set aside or not?
(ii) what order?
Thus it is seen that the impugned judgment and award passed on the basis of the observations made by the Medical Officer in the respective medical records like wound certificate and case sheet that the claimant had consumed alcohol, but, it is also to be noted that the driver of the vehicle had pleaded guilty before the Criminal Court. Further on perusal of the records, it is seen that no doubt the accident occurred on the center of the road, but, nevertheless it cannot be said that the accident solely occurred on account of the negligence of the claimant himself and may be he contributed to the accident. In the circumstances, the observations made by the Tribunal that the claimant has not proved that the accident occurred on account of the negligent driving of the Innova car involved in the accident is not proper that too in the absence of any evidence with regard to effect of such intoxication and also percentage of intoxication. In the circumstances, it is proper that the entire matter may be remitted to the Tribunal for considering the matter afresh by affording opportunity to the claimant to adduce further evidence in case he chooses to do so and re-appreciate the evidence so placed on record afresh. Hence, the following: ORDERThe above appeal is allowed. The impugned judgment and award dated: 11.08.2010 passed in MVC No. 260/07 on the file of the Member, Additional MACT, Ramanagaram is hereby set aside and the matter is remitted to the said Tribunal for considering the entire matter afresh by giving opportunity to all the parties to adduce further evidence in case they choose to do so leaving open all the contentions raised by both the parties in this appeal.
As the case is of the year 2008, the Tribunal is also directed to dispose of the case at the earliest with in 6 months from the date of receipt of copy of this judgment and records.
As the parties are duly represented, they are directed to be present-before, the Tribunal on 17.1.2014 and no notice of transfer need be given to them.
