Girdharimal Turyamal Jaswani vs Jaswant

S.B. Shukre, J.—This appeal is filed against the judgment and award passed in Motor Accident Claim Petition No. 141 of 1999, on 17.9.2002 by the Member, Motor Accident Claims Tribunal, Akola. The appellants are the original claimants who filed claim petition u/s 166 of the Motor Vehicles Act, 1988 claiming compensation for the accidental death Jeetendrakumar, the son of appellant Nos. 1 and 2 and the brother of appellant Nos. 3 and 4 against the respondents. The respondent No. 1 was the owner of Maruti Vehicle bearing registration No. MH-31-Z-4918 involved in the accident. The respondent No. 2 was the driver of the said vehicle and respondent No. 3 was the insurer of that vehicle at the time of accident.

According to the appellants, the accident had occurred on 24.8.1998 at about 9.30 p.m. on Nagpur-Hinganghat Road. The appellants submit that, deceased Jeetendrakumar was traveling in the said Maruti Vehicle and it was being driven rashly and negligently by respondent No. 2. They submitted that due to rashness and negligence shown by respondent No. 2 in driving Maruti vehicle, it was dashed against one commander jeep and the accident took place. In this accident, Jeetendrakumar sustained grievous injuries to which later on he succumbed. The appellants submitted that deceased Jeetendrakumar was earning about Rs. 5,000/- per month and they all were dependent upon the income of deceased Jeetendrakumar. Therefore, they filed claim petition claiming compensation of Rs. 10,00,000/- from the respondents jointly and severally.

While the petition proceeded exparte against the respondent Nos. 1 and 2, it was resisted by the respondent No. 3. The respondent No. 3 submitted that the driver, owner and insurer of the commander jeep were necessary parties and, therefore, the petition was bad for non-joinder of necessary parties. They also submitted that if at all the liability was to be fastened upon the owner of the Maruti vehicle, it should be reduced proportionately as there was contributory negligence on the part of the other vehicle involved in the accident. It also submitted that there was a breach of conditions of insurance policy. On these grounds, it urged that it was not liable to pay any compensation to the appellants. The Tribunal framed initially six issues on 12th August, 2002 vide Exhibit-16 and later on, by an amendment carried out to them, issue No. 4 was amended on 2nd September, 2002. The Tribunal, after considering evidence brought before it, found that the appellants could not prove that the accident occurred due to rash and negligent driving of Maruti car bearing registration No. MH-31-Z-4918 and, therefore, it dismissed the petition by judgment and order passed on 17th September, 2002.

Not satisfied, the appellants have preferred the present first appeal.

I have heard Mr. P.P. Kotwal, learned counsel for the appellants, Mr. Kalraiya, learned counsel for the respondent Nos. 1 and 2 and Mr. C.A. Anthony, learned counsel for the respondent No. 3.

Now, the only points which arises for my determination is:

"Whether the appellants have made out a case for remanding of the matter to the Tribunal at Akola for deciding it afresh in accordance with law ?"

Learned counsel for the appellants has taken me through the evidence brought on record and submitted that the Tribunal has dealt with the whole matter in a very casual manner and has not at all made any efforts to ascertain as to who was responsible for causing of the accident, even though once the Police papers established the fact that the accident occurred and it led to death of Jeetendrakumar. He, therefore, submits that this is a fit case for remanding it to the Tribunal for its fresh trial.

Learned counsel for the respondent Nos. 1 and 2 submits that the evidence available on record would show that un-known driver of commander jeep was responsible for causing of the accident and, therefore, it cannot be said that there is absolutely no evidence to reach the findings as recorded by the Tribunal. According to him, this case, therefore, needs no fresh trial by the Tribunal.

Learned counsel for the respondent No. 3 is in agreement with the learned counsel for respondent Nos. 1 and 2. He too submits that there is sufficient evidence available on record which indicates that the driver of the commander jeep was responsible for causing of the accident and that the driver of the Maruti car, was not at fault in the accident in which deceased Jeetendrakumar died. He further submits that the accident had occurred in the year 1998 and, therefore, remanding of the case to the trial Court at this stage would not serve any purpose. Even otherwise, he submits that according to the own version of the appellants, there were two other vehicles involved in this accident and unless those vehicles were joined in the petition, no purpose would be served by remanding the matter to the Tribunal. Therefore, he urges that this appeal be dismissed.

It is seen from the evidence available on record that witness No. 1 of the appellant, Girdharilal, Exhibit-19 was not an eye witness to the accident and had no personal knowledge about the manner in which the accident occurred. Whatever knowledge about the accident he had, it was based upon the inquiry which he did at the spot of accident some time after the accident and also the Police papers made available to him by the concerned Police Station. Therefore, even though he has given an admission in his cross-examination taken on behalf of respondent No. 3, that the accident occurred due to negligence of other vehicle involved in the accident, such admission would be of no relevance so as to determine the cause of the accident. This was one of the facts relied upon by the Tribunal to record it''s negative finding on negligence of respondent No. 2 and for the reason stated earlier, said fact should have been ignored by the Tribunal. But, the Tribunal has also considered other evidence in reaching a finding in this regard.

The other evidence considered by the Tribunal is in the nature of first information report vide Exhibit-22, spot panchanama vide Exhibit-23 and port-mortem report vide Exhibit-24 for recording its finding in this regard. Out of these documents, the F.I.R. vide Exhibit-22 which states that jeep gave a dash to Maruti vehicle, has been alleged by the appellants to be of doubtful nature. That is the reason why the appellant No. 1, as stated by him in his evidence before the Court, had later reported to the Police that truth was otherwise and the dash was given by Maruti car to commander jeep and other two vehicles. The record shows that copies of the reports given in this regard on 5th March, 1999 and 7th March, 1999 have been placed on record by the appellants. But, the Tribunal has not taken any cognizance of these reports. From these reports and evidence of appellant No. 1, some doubt about correct recording of F.I.R. Is created. These reports raise questions-whether the investigation carried out by the concerned Police Station was satisfactory and whether something more was required ?

In the first information report which was lodged by the respondent No. 1, a wrong series of the registration number of the car has been mentioned. According to the learned counsel for the appellants, this fact would indicate that the owner of the car was trying to hide some truth from Police and, therefore, proper inquiry ought to have been made if not by the Police, but at least by the Tribunal. I think he is right. If the owner of the car involved in the accident, at the time of filing of first information report stated wrong series of registration of his car, there was room for expressing doubts over his intention in lodging of the first information report. Then, the appellant No. 1 had also filed specific reports alleging that the Maruti car had been driven rashly and negligently by respondent No. 2 at the time of accident. With such reports, some further investigation ought to have been carried out by the concerned Police Station and if it was not carried out by it, the Tribunal before recording of negative finding as regards rashness and negligence of the driver of the Maruti car, ought to have inquired into these allegations in accordance with law. The Tribunal could have summoned concerned Police Station Officer and attempted to bring on record the truth of the matter. This has not been done by the Tribunal and, therefore, now it would be necessary for this Court, in the interest of justice, to remand this case to the Tribunal for its fresh trial in accordance with law.

There is one more reason why this Court finds it necessary to direct remand of the case to the Tribunal. The issue No. 1 as originally framed by the Tribunal vide Exhibit-16 reads as follows:

"Do the applicants proved that the accident took place on 24.8.1998 at about 9.30 p.m. near village Ajanti Shiwar on National Highway No. 7 on Nagpur-Hinganghat Road, due to rash and negligence of the Jeep bearing No. MH-17-A-6779 and MP-09-H-3722 ?"

However, in the impugned judgment and award, this issue has been reproduced as follow:

"Do the applicants/claimants prove that the accident took place on 24.8.1998 at about 9.30 p.m. Near village Ajanti Shiwar on National High Way No. 7 on Nagpur-Hinganghat road due to rash and negligent driving of Maruti Car Mh-31-Z-4918 ?"

Upon perusal of the record of the Tribunal, what is seen is that there has been some scoring out made in the last two lines of issue No. 1 and thereafter these lines have been substituted by the words "driver of Maruti MH-31-Z-4918" after the words rash and negligence of the Jeep. But, I could not see nor learned counsel for the appellants or the respondent Nos. 1 to 3 could show to me any order of Tribunal allowing such an amendment to issue No. 1. The document vide Exhibit-16 itself does not show that the issue No. 1 has been amended on the order passed by the Tribunal. It shows that only issue No. 4 has been amended as per the order passed on 2nd September, 2002. In the entire body of the impugned judgment and award, the learned Member has not made any reference to the amendment of issue No. 1 and has not given any explanation as to why the issue No. 1 as re-produced in the impugned judgment and award differs from issue No. 1 as originally framed by it. The variance in issue No. 1 as originally framed and as actually dealt with by the Tribunal, would have to be appropriately considered by the Tribunal and this would be possible only upon remanding the matter to it for trial and decision afresh.

In the circumstances, I find that the appellants have made out a case for remanding of the matter to the Tribunal. The point is answered as in the affirmatively. Accordingly this appeal deserves to be allowed.

The appeal is allowed with costs and following directions are issued:

A) The impugned judgment and award are quashed and set aside.

B) The Motor Accident Claim Petition No. 141 of 1999 is remanded to the Member, Motor Accident Claims Tribunal, Akola for fresh trial and decision in accordance with law from the stage of recording of additional evidence in the matter, if any.

C) The Tribunal, however, shall consider the aspect of carrying out of amendment to issue No. 1 in the light of material before it and take an appropriate decision thereon and thereafter shall allow the parties to lead additional evidence, if they wish to do so.

D) The Tribunal shall also consider in accordance with law summoning of concerned Police Station incharge for throwing light upon the steps taken by the Police Station upon the reports submitted to it by the appellant No. 1 on 5th March, 1999 and 7th March, 1999.

E) The Tribunal, after considering the evidence already available on record and also the additional evidence that may be led by the parties and giving opportunity of hearing to the parties herein, shall decide the case in accordance with law.

F) The case shall be decided as far as possible, within six months from the appearance of the parties before it.

G) The parties shall appear before the Tribunal on 3rd March, 2014.

H) Record and Proceedings be sent back to the trial Court.