The claimants have filed this Miscellaneous First Appeal before this Court challenging the judgment and award passed in MVC.No.187/2009 dated 12.01.2010 on the file of the Senior Civil Judge, MACT-IX, Harapanahalli, dismissing the claim of the appellants.
2. The claimants have filed the claim petition before the Tribunal contending that on 17.04.2008, the son of the appellants by name Ramappa had been to Hospet. On that day he was returning back to Harapanahalli from Hospet by traveling in a KSRTC bus bearing Registration No.KIA.01/F-8173 driven by respondent No.1. On that day, at about 7.30 p.m near Singara Thota, respondent No.1 has driven the bus in a rash and negligent manner without observing the speed breakers existing on the said road and made the said bus to jump the hump at that spot, due to which, the said Ramappa fell down from the bus and sustained various injuries on his body. The injured was shifted to hospital and he succumbed to the injuries. Hence, they made claim against the respondents.
3. The claimants in order to prove their claim, examined claimant No.1 before the Tribunal as PW1 and got marked documents as Ex-P1 to P7 and on the other hand, the respondents have examined respondent No.1 as RW1.
4. The Tribunal after considering the oral and documentary evidence of the parties, dismissed the claim petition on the ground that the claimants failed to prove the negligence on the part of the driver of the bus.
5. Being aggrieved by the judgment of dismissal, the claimants have approached this Court. In the appeal memorandum, the counsel for the appellants contended that the Tribunal has grossly committed an error to consider the facts and circumstances of the case and the dismissal order is highly illegal, arbitrary in nature and not sustainable in the eye of law. Further contention of the appellants is that, though the records at Ex.P1 to P4 clearly shows that alleged accident has taken place due to the negligence on the part of respondent No.1, which is proved, without considering the same, the Tribunal has dismissed the claim petition.
6. The Tribunal also has come to the wrong conclusion without appreciating the documentary evidence placed before it. The Tribunal has come to the conclusion that the claimants have not proved the negligence and further contend that Ex.P5 and P7 clearly discloses that it is the negligence and rash driving of bus by respondent No.1 and further observed that they have not examined any of the eye witness in support of their case and erroneously came to the conclusion that the claimants have not proved the negligence.
7. The counsel appearing for the appellants in his arguments contend that the Tribunal has failed to take note of the fact that respondent No.1, the driver of the KSRTC bus, also examined as witness and the Tribunal has relied upon the statement of the driver who has been examined before the Tribunal. The Tribunal has only relied upon the oral evidence of the driver of the bus and Tribunal comes to the conclusion that rash and negligence is not proved.
8. On the other hand, the counsel appearing for the respondent has vehemently contended that the deceased was proceeding in the bus is not a disputed fact, but the only contention is that the driver of the bus was driving the bus in a rash and negligent manner without observing the road humps and jumped the road humps as a result he fell down from the said bus. Further contended, that the very specific defence was taken in the written statement that the deceased himself tried to get down from the bus where there was humps and when the bus was slow down, without noticing the humps and without the knowledge of either driver or conductor of the said bus got down from the door and lost his control as the bus was in a motion and therefore the accident was occurred due to the negligence of the deceased. The PW1 is examined and she is not an eye witness and PW1 further categorically admits that there was no any stop in the place of accident and no doubt police have filed charge sheet against the driver and same has not been proved by the claimant. Hence, Tribunal has given detailed reason while dismissing the claim petition. Hence, there are no grounds to allow the appeal.
9. After having heard the arguments of the appellants counsel and also the respondents counsel and on perusal of the judgment and award of the Tribunal, the Tribunal in the paragraph-10 has observed that: it is very much pertinent to note here that during the cross-examination of PW1 he admitted that from Singarathota Village his native village, Bagali is at very short distance. He further admitted that the bus in which the deceased was traveling was a non-stop bus and there was no any request to stop at Singarathota village. He further admitted that after the village Singarathota village bus stop, there are no any bus stops up to the Harapanahalli bus stand. He further admitted that if the bus does not stop at Singarathota village bus stop, then one has to go to Harapanahalli bus stand and there after again he has to pick up another vehicle and then he has to reach village Bagali. And made his observations in the order that comes to the conclusion that the defence set up by the respondent is more probable than the allegations made by the petitioners against the respondent about his rash and negligent act. The principle of res ipsa loquitor i.e, things itself speaks is aptly applicable to the present case in hand. By making these observations dismissed the claim petition.
10. Now, going through the findings of the Tribunal, the Tribunal has given the reason that the claimants are not examined the eye witness and also not examined the complainant and the PW1 who has been examined before the Tribunal is also not an eye witness. So far as the contention of the appellant counsel, that the Tribunal has considered the evidence of RW1 who is the driver of the KSRTC bus and who is also an interested witness and not examined any other eye witness or passengers of the vehicle. No dispute with the fact that deceased fell down from bus when the bus was moving. Whether door was opened by the deceased himself or by the conductor or anybody else there is no material. Whether the door was locked when the bus was moving or opened also to be looked into by the Tribunal. There was no evidence with regard to the fact that whether the door of the bus was opened or locked at the time when the incident was taken place and further it is rightly pointed out by the counsel for the appellant that the respondent has also not examined any eye witness in support of the claim of the respondent and the claimants also not examined any eye witness. The charge sheet has been filed against the driver of the KSRTC bus and Investigating Officer has not been examined.
11. Hence, I am of the opinion that the Tribunal has to come to the definite conclusion, whether it is on the part of the deceased or on the part of the conductor of the KSRTC. In view of the eye witness are not examined either by the respondent or by the claimants, the matter is remanded back to the Tribunal for fresh consideration. The impugned judgment and award of the Tribunal is set aside and matter is remanded back to the Tribunal for fresh consideration. This is the matter of the year 2008 and almost one decade has been lapsed and hence it is appropriate to give directions to the Tribunal to consider the matter immediately. Therefore, parties are directed to appear before the Tribunal on 01.01.2019 without expecting any notice from the Tribunal and the Tribunal is also directed to dispose of the matter within six from 01.01.2019. Both the counsel are directed to assist the Court to dispose the matter within the stipulated period. Office is directed to send the records of lower Court forthwith. Sd/- JUDGE