Surendra Singh Mahar vs Mrs. Sunita Jain

Servesh Kumasr Gupta, J.—Having heard the rival contentions, it transpires that MACP No.23 of 2006 was pending adjudication before learned Tribunal/District Judge, Pithoragarh, wherein, efforts were continued to be made for sufficient service upon the respondent no.2, who could filed written statement only on 20.11.2008.

However, since no additional issue could arise, hence the case was fixed first time for evidence on 19.12.2008. Since then, after availing nine opportunities, only claimant could be examined.

On 13.10.2009, an application was moved by the claimant seeking further adjournment on the ground that the witnesses have to be summoned from Delhi and they could not come for evidence because Deepawali festival was within the ace of a week but learned Tribunal rejected such application and fixed the case on 03.11.2009 for evidence of the opposite party.

On such date, an application was moved by the claimant, supporting the same with an affidavit, disclosing the grounds of absence of witnesses on the previous date too and sought further time to produce his witnesses but his application was rejected by learned Tribunal and the case was fixed for evidence of the opposite party, which was recorded on the same day and thereafter, the case was fixed for arguments on 07.12.2009. Thereafter, the judgment was pronounced dismissing the petition, where-against, this appeal has been preferred by the claimant.

Looking to whole order-sheet of the Tribunal, I feel that the constraints, which impelled to the claimant for not producing his witnesses in time, could have been considered.

The incident occurred between the intervening night of 6/7 March, 2005 while the deceased Mr. Abhishek Singh, a youth, motorcycle borne, was on the Delhi-Cantt Flyover road. He came from behind and the paver machine, being driven by its driver rashly and negligently as alleged, without rear indicators, was the cause of the accident.

The Criminal Case has also said to be registered and learned counsel for the appellant submits that the evidence, which was produced by the prosecution in that criminal case, had to be either summoned or ought to be produced after procuring the certified copy of such evidence. The closure of evidence by the Tribunal has precluded the appellant from producing such evidence and that is why, the petition, before the Tribunal, could not attain its proper adjudication.

I do agree with the said contentions of learned counsel for the appellant and set aside the impugned judgment and order, passed by the Tribunal and remand the matter to be reheard after rendering proper opportunity to the claimant for either to examine his witnesses or to produce certified copy of the relevant documents/evidence, which have been the part of the record in criminal case before the Trial Court.

Learned counsel for the appellant/claimant undertakes to furnish his evidence within four months from the date, when the case file is received back to the Tribunal.

Appeal thus, stands allowed.