JUDGMENT
M. Ramakrishna, J.
1. In this Appeal the K.S.R.T.C. has challenged the correctness and legality of the judgment and award made in favour of the claimant.
2. We have heard learned Counsel on both sides. The main argument advanced by the learned Counsel for the appellant is that according to the claimant the accident took place due to the rash and negligent driving of the lorry by its driver, therefore the claimants ought to have impleaded the owner and the driver of the lorry. In the absence of the owner and the driver of the lorry, the Tribunal should not have proceeded to award compensation as against the driver of the K.S,R.T.C. Bus.
3. It is seen by a perusal of the Judgment of this Court in K.S.R.T.C. v. RENY MAMMEN, that in similar circumstance, the Division Bench of this Court held against the claimants and remitted the matter for reconsideration. Referring to the facts and circumstances of that case and the plea that the owner and driver of the lorry involved in the accident were not made parties, this Court held in paragraph 38 as follows:
“(3) It is the duty of the claimant making an application under Section 110-A of the Act, read with Rule 343 of the Karnataka Motor Vehicle Rules and the Prescribed Form 82, to furnish the Registration number of every one of the vehicles involved in the accident as also the name of the owner and the insurer in all cases where the vehicle was insured and cannot furnish only the Registration Number of the vehicle of his choice and the names of owner and insurer of such vehicle. If it is found in any given case the applicant has done so and it comes to light that infact some other vehicle was also responsible for the accident, the application is not liable to be dismissed on the principle of non-joinder of necessary parties, but it is the duty of the Tribunal to call upon the parties to furnish the Registration Number of the vehicle/vehicles, the name of the owner and its insurer and issue notice to all of them, as required under Rule 346 of the Rules and should thereafter make a full and complete adjudication of the application. When notice is issued to such owner after securing their names and addresses, after the expiry of the period fixed in Sub-section (3) of Section 110-A, in an application filed within the time prescribed under that sub-section, they cannot plead bar of limitation for, Sub-section (3) of Section 110-A prescribes the period of limitation only for filing an application and not for issuing notice to any other person whose presence is also necessary to make full and effective adjudication of the claims in terms of Section 110-B of the Act.”
4. Therefore in view of the Ruling of this Court we are of the opinion that the trial Court should have provided an opportunity to the claimant to enable him to furnish all the documents that relates to driver and owner of the lorry so that it would be in a better position to pass appropriate orders.
5. In view of the direction given in Para 38 of the above referred Judgment, this Court set aside the award made in that case and remitted the matter to the Tribunal, fixing the liability of the owner and driver of the bus at 50% of the compensation awarded. That was based upon the circumstances involved in that case, where both the vehicles were found moving at the time of the accident. But in the instance case, according to the evidence on record the bus had stopped before the actual accident occurred when the lorry came from the opposite direction in a great speed and caused the accident by hitting the elbow of the claimant who was seated in the bus near the window keeping his elbow outside. In that view of the matter the direction contained in Para (iii) of the operative portion of the Judgment in Savitri’s case is not applicable to this case.
6. Further, in view of said Ruling of this Court, the judgment and award under Appeal in this case is quashed. The matter stands remitted to the Tribunal with a direction to re-consider the entire matter, after providing an opportunity to both parties of adducing evidence and of being heard and in particular to the claimant to furnish the details of the lorry which caused injuries to him in the accident, so that, the Tribunal can issue notice to the owner and the insurer of the lorry to have their say in the matter and to dispose of the same in accordance with law, within a period six months from the date of receipt of this order.
7. Another aspect that requires to be considered in this case is payment of solatium as provided under Section 109A of the Motor Vehicles Act of 1939, which is a special provision as to compensation in cases of hit and run Motor Vehicle Accidents. It reads:
“109A.
(1) & (2) xxx xxx xxx (3) The Solatium Fund shall be utilised for paying, in accordance with the Provisions of this Act and the scheme, compensation in respect of the death of, or grievous hurt to persons resulting from hit and run motor accidents. (4) xxx xxx xxx (5) Subject to the provisions of this Act and the scheme, there shall be paid as compensation out of the Solatium Fund, - (a) xxx xxx xxx (b) in respect of grievous hurt to any person resulting from a hit and run motor accident, a fixed sum of one thousand rupees:"
8. It is stated that the claimant shall be entitled for compensation to be paid out of the Solatium Fund in accordance with Section 109A(3) and (5)(b). Therefore, we direct that action shall be taken by the competent authority to consider the claim of the claimant for compensation under Sub-clause (b) of Sub-section (5) of Section 109-A.
9. This order is to be implemented in case it becomes impossible for the claimant to find out the owner and the driver of the lorry involved in the accident.
10. Learned Counsel for the appellant further submits that pursuant to the interim stay granted by this Court on 21.11.1990, 50% of the award amount came to be deposited in the trial Court. Further by an order made on 4.2.1991, this Court permitted withdrawal of the amount in deposit. Learned Counsel for the appellant submits that since the amount has been withdrawn, a direction may be given that 50% of the amount withdrawn by the claimant shall be subject to the final disposal of the matter before the Tribunal. Therefore it is made clear that 50% of the amount withdrawn by the claimant shall be subject to the final disposal of the matter before the Tribunal.