Point of Law: A standing person was taken to be seen by driver who was driving a passenger Bus in premises of a Bus Stand, as such, he should have been more vigilant and cautious in driving said Bus.

JUDGMENT :

H.B. PRABHAKARA SASTRY, J.

1. The present appellant was the claimant in M.V.C. No. 1224/2017, before the I Additional District Judge and Motor Accident Claims Tribunal-II, Mangaluru (D.K.) (hereinafter for brevity referred to as “the Tribunal”) whose claim petition under Section 166 of the Motor Vehicles Act, 1988 (hereinafter for brevity referred to as “the M.V. Act”) for compensation from the respondents herein came to be dismissed as devoid of merit by the Tribunal vide its impugned judgment and award dated 05-07-2019.

Aggrieved by the same, the claimant before the Tribunal is before this Court through this appeal.

2. The summary of the case of the claimant in the Tribunal was that, on the date 19-01-2017, at about 9:00 a.m. when he was standing on the side of the road near Kankanady Bus Stand at Mangaluru, the driver of a Bus bearing registration No. KA-19/C-6864, driving the said Bus in high speed and in a rash and negligent manner, took the Bus in such a way so that its back wheel ran over the left foot of the claimant, inflicting grievous injures upon him. Immediately, the claimant was taken to the Government Wenlock Hospital, Mangalore, where he was treated as in-patient for a week and thereafter getting himself discharged, he went to Erode at Tamil Nadu and was treated as an in-patient in a local Hospital there. Stating that at the time of accident, he was working as a Coolie and earning a sum of Rs. 10,000/- per month and was aged 45 years, however, due to the accident, he has lost his future income and also incurred huge medical expenses, the claimant has claimed a sum of Rs. 3,00,000/- as compensation from the respondents No. 1 and 2, holding them as liable to pay him the compensation in their capacity as the owner and insurer of the alleged offending Bus, respectively.

3. The Respondent No. 1 (owner of the offending Bus) failed to appear before the Tribunal, however, the respondent No. 2 (insurer of the offending Bus) appeared before the Tribunal and filed its Written Statement, wherein it has not only denied all the averments made by the appellant (claimant before the Tribunal), but also contended that it learnt that the claimant was trying to cross the Road without observing the traffic rules and thus was himself responsible for the alleged accident. However, the second respondent (insurer) admitted that the alleged offending motor vehicle Bus was insured with it. It also took a specific contention that, as on the date of the accident, the first respondent was not a policy holder.

4. Based on the pleadings of the parties, the Tribunal framed the following issues for its consideration:

“1. Whether the petitioner proves that on 19.1.2017 at about 9.00 a.m. while he was standing on the side of the road near Kankanady Bus Stand, Mangaluru taluk, a bus bearing Reg. No. KA.19/C.6864 came with high speed in a rash and negligent manner from Kankanady side and the back wheel of the said bus passed over the left foot of the petitioner and caused accident in which he sustained grievous injuries due to the actionable negligence of the driver of the said bus?

2. Whether the respondents prove that they are not liable to pay compensation?

3. Whether the petitioner is entitled for compensation? If so, what quantum and from whom?

4. What order or award?”

5. In support of his contention, the claimant got himself examined as PW-1 and got marked documents from Exs.P-1 to P-13. From the respondents’ side, no witness was examined, however, a copy of the policy was got marked as Ex.R-1. The case sheet of Wenlock Hospital was marked as Ex.C-1.

6. After hearing both side, the Tribunal vide its impugned judgment answered issue No. 1 in the negative and issue Nos.2 and 3 as 'does not survive for consideration' and proceeded to dismiss the claim petition filed by the claimant. Aggrieved by the same, the appellant (claimant) is before this Court.

7. The Respondent No. 1 (owner of the offending Bus) though has been served with notice in the ap