*THE HON’BLE SRI JUSTICE NOUSHAD ALI + M.A. C.M.A. No.24 of 2006 % 06-87-2010 # P.Rajagopal Reddy …Appellant. Vs. $ The Andhra Pradesh State Road Transport Corporation, rep. by its Managing Director, RTC X Roads, Hyderabad ...Respondent. <GIST >HEAD NOTE: !Counsel for the Appellant : Sri I.Venkata Prasad ^Counsel for the Respondent : Sri W.V.S.Rajeswari, S.C. for APSRTC CASES REFERRED: ? NIL THE HON’BLE SRI JUSTICE NOUSHAD ALI M.A. C.M.A. No.24 of 2006 JUDGMENT: This is an appeal filed by the claimant assailing the award in O.P.No.19 of 2004, dated 16-11-2005, on the file of the Motor Accidents Claims Tribunal (before the V Additional District Judge), F.T.C., Anantapur, under which the claim petition filed by the appellant seeking compensation under the provisions of Sections 140 and 166 of the Motor Vehicles Act has been dismissed. The appellant/claimant filed the O.P. and sought for compensation of a sum of Rs.1,20,000/- on the ground that he sustained injuries in a road accident that occurred on 04-06-2002 on account of rash and negligent driving of the bus of the respondent/corporation. According to the claimant, on the said date of accident, he along with his friend were proceeding on a motor cycle from Dharmavaram to go to Kotha Cheruvu and when they reached Kanumukkala Village, the bus bearing registration No.AP-10-Z-7534 of which the respondent corporation is the owner, came in the opposite direction, being driven in a rash and negligent manner, and hit the motorcycle. The claimant was a pillion rider. In the said incident, the claimant and the driver of the motorcycle as well received injuries, which warranted compensation. The respondent/corporation contested the matter inter alia on the ground that the owner and the insurer of the motorcycle were not impleaded as the parties and that the driver of the motorcycle himself was negligent and responsible for the accident. The Tribunal formulated the issues as follows : (1) Whether the accident occurred due to rash and negligent driving of the said bus by its driver and caused injuries to the claimant; (2) Whether the claimant was entitled for compensation and if so, to what amount; (3) Whether the petition was bad for non-joinder of necessary parties. On issue No.1 relating to rash and negligence, the Tribunal held that the accident occurred due to the negligence of driver of the motorcycle and the driver of the offending vehicle as well. On issue No.3, which relate to impleadment of necessary parties, the Tribunal concluded that since the owner and insurer of the motorcycle were not made as parties, the petition was not maintainable due to non-joinder. In the light of the findings on issues 1 and 3, the Tribunal declined to consider issue No.2 relating to entitlement of compensation. The petition since dismissed, this appeal is filed. Heard the learned counsel for both the parties. On issue No.1, the Tribunal purportedly considered Ex.A1, certified copy of the F.I.R. in crime No.44 of 2002 and Ex.A2 certified copy of charge-sheet in the said crime. The Tribunal observed that as per Ex.A1, the accident occurred while the complainant was traveling on the motorcycle along with pillion rider Raja Gopal Reddy (claimant) and while trying to overtake the jeep, the APSRTC bus came in the rash and negligent manner in the opposite direction and dashed against the motorcycle. From this, the Tribunal concluded that the accident occurred while overtaking the jeep. However, it must be stated that the observations so made by the Tribunal is beside the record. A perusal of the F.I.R. (Ex.A1) does not show anything with regard to the alleged overtaking. Therein, it is stated that on 04-06-2002 the complainant (driver of the motorcycle) and Raja Gopala Reddy (claimant) started at 8.30 AM on the motorcycle from Dharmavaram and at about 9.15 AM, after they crossed Kanumukkala, a jeep was going in front of them near Veldurti cross and that they were proceeding behind the jeep. At that time, the RTC bus, coming from Kotha Cheruvu direction in a high-speed and in a negligent manner, hit them and caused the accident. There is absolutely no reference that they were trying to overtake the jeep. Apparently, the observation of the tribunal is misplaced. Although the Tribunal noted that in Ex.A2 charge sheet it was stated that the accident occurred only due to the negligent driving of the bus driver, the Tribunal did not consider the veracity of Ex.A2 vis-à-vis Ex.A1. As observed, the Tribunal recorded a finding based on Ex.A1 FIR with reference to a non- existing fact. It is axiomatic that the Tribunal did not even consider the oral evidence of P.W.1. The Tribunal merely considered the one sided evidence of R.W.1. The conclusion thus reached by the Tribunal without considering the entire evidence on record and by misreading the contents of Ex.A1, therefore, is not sustainable. The whole approach of the Tribunal is flawed. The findings on issue No.3 regarding the non-joinder of parties is equally flawed. On a proper consideration of the evidence on record and evaluation of the merits of the case, if a finding is recorded that accident was caused solely due to the negligence of the driver of the bus of the APSRTC, there is no need to consider the question whether there was any contributory negligence on the part of the driver of the motorcycle. On the other hand, if the finding is that the driver of the motorcycle was also contributed to the incident, even then the claim cannot be dismissed in toto on the ground of non-joinder of the owner or the insurer of the said vehicle. In other words, in a case of contributory negligence, the contributor of such negligence cannot make a claim for payment of compensation in whole without accounting for his part of contribution. The extent of the role played by him as assessed by the Court will be taken into account and set off to a corresponding extent of the payment of compensation which the claimant would otherwise be entitled to. If the claimant has not impleaded the insurer or the insured of the contributing vehicle, he would not be entitled to the whole of the claim from the other contributor, but he is entitled only to the extent of the contribution by the other vehicle. Impleading one of the contributors is the choice left to the claimant, since, if he impleads, he gets the share of the contributor also and if he fails to do so, he would lose that share. The Tribunal, in my considered view, is not correct on this issue also. On the above analysis, it must be held that the order impugned is unsustainable. Having regard to the fact that the evidence on record has not been appreciated and that it is not necessary to implead the insurer or the insured of the other vehicle, it is eminently a fit case for reconsideration. In the analysis above, this appeal is allowed and remanded for reconsideration. The Tribunal is directed to consider the evidence on record in its entirety and pass appropriate orders after hearing both the parties. The Tribunal is requested to dispose of the matter as early as possible, preferable within a period of three months from the date of receipt of a copy of this order. The appeal is accordingly allowed. There shall be no order as to costs. ______________ NOUSHAD ALI, J. 06th August, 2010. Note : L.R. copy to be marked. B/o skmr THE HON’BLE SRI JUSTICE NOUSHAD ALI M.A. C.M.A. No.24 of 2006 Date : 06-08-2010 Between : P.Rajagopal Reddy .. Appellant And The Andhra Pradesh State Road Transport corporation, rep. by its Managing Director, RTC X Roads, Hyderabad. .. Respondents