Smt. Suman Kumari & Others vs The New India Assurance Co Ltd & ...
2015 Latest Caselaw 14 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Judgment Reserved
 

 
Case :- FIRST APPEAL FROM ORDER No. - 2972 of 2007
 

 
Appellant :- Smt. Suman Kumari & Others
 
Respondent :- The New India Assurance Co Ltd & Another
 
Counsel for Appellant :- Anil Kumar Aditya,Ratnesh Tewari
 
Counsel for Respondent :- Ram Pratap Singh,S K Mehrotra,S.K.Mehrotra.,Vijay Shenkar Yadav
 

 
Hon'ble Krishna Murari,J.

Hon'ble Pratyush Kumar,J.

(Delivered by Hon'ble Pratyush Kumar, J.)

The present appeal, filed under Section 173, Motor Vehicles Act, 1988 (hereinafter referred as "1988 Act") whereby the judgment and award dated 11.7.2007 passed by Shri Shashank Shekhar, Motor Accident claims Tribunal/Additional District Judge, Court No.1, Aligarh in MACP No.243 of 2003, dismissing the said claim petition, has been challenged.

Heard Shri Ratnesh Tewari, learned counsel for the appellants and Shri S.K. Mehrotra, learned counsel appearing for the respondents and perused the record.

Learned counsel for the appellants/claimants (hereinafter referred as "appellants") has submitted that impugned judgment and award are against the material on record and law. He submits that the appellants had duly proved the accident and manner in which it took place, but the learned tribunal has wrongly disbelieved the evidence of the appellants. He further submits that without framing any issue on the maintainability of the claim petition, the claim petition has been erroneously held to be not maintainable. In the last, he submits that the findings recorded in the judgment and award are based on surmises and conjectures, therefore, deserve to be set aside.

On behalf of respondent no.1/opposite party no.1 (hereinafter referred as "respondent no.1) the judgment and award have been defended and argued that though death of the deceased is not disputed, but the learned tribunal after appreciation of the evidence has correctly held that the bus had overturned in order to save a child coming on road, therefore, the driver could not be said to be guilty of rash and negligent driving. According to learned counsel for the respondent no.1, claim petition filed under 1988 Act itself becomes not maintainable as soon as the appellants failed to prove the rash and negligent driving on the part of the vehicle in question.

Before proceeding further, it will be necessary for us to notice briefly the pleadings of the parties. The appellants have stated in the claim petition that the deceased Yagya Dutt @ Dorilal, aged about 32 years, employed by Satish Bus Service was engaged in the work of operating bus. He was earning Rs.5,000/-. Appellants are his dependants. When the deceased was coming to Aligarh by mini bus no.UP-81/F/9484 on 19.5.2003 and reached near village Bhnaakari, P.S. Gabhana, the driver of the said mini bus was driving the bus very rashly and negligently. Suddenly one child came on the road, in order to save him the bus driver lost his balance and the bus was overturned. In the accident deceased had sustained serious injuries in the body and head, while taking to the hospital he died. Due to premature death of the deceased, the appellants have suffered great loss and they are entitled to be awarded Rs.10,60,000/- along with interest payable by the opposite parties.

Respondent no.1, the Insurance Company contested the claim petition and filed written statement whereby averments of the claim petition are denied. In the additional pleas it has been stated inter alia that the claimed compensation is excessive and death of the deceased was occurred due to his own negligence.

Non-contesting opposite party no.2/respondent no.2 has also filed the written statement wherein he has admitted the occupation and income of the deceased. He has also admitted the accident and death of the deceased, but it has been specifically stated that the driver of the said bus was driving the vehicle at moderate speed in accordance with the relevant rules. On account of one child, who came in front of the bus, the bus driver tried to save him due to which the said bus had overturned. The said bus was insured with respondent no.1, who is liable to pay the compensation.

On the basis of the pleadings of the parties, following two issues were framed in Hindi. They are translated as below:-

1.Whether on 19.5.2003 driver of mini bus no. UP-81/F/9484 was driving the said bus rashly and negligently due to which it was overturned, wherein passenger Yagya Dutt @ Dorilal sustained injuries and died on his way to hospital?

2.Whether claimants are entitled to get any compensation? If so, how much and from whom?

On behalf of appellants three witnesses Smt. Suman Kumari (co-claimant) PW-1, Deepak Sharma (eye witness) PW-2 and Satish Sharma (employer) PW-3 were examined and eight documents were filed. On behalf of non-contesting respondent no.2, three documents were filed. No oral evidence was given. Respondent no.1 neither filed any document nor examined any witness.

By the impugned judgment and award, in reference to issue no.1, learned tribunal has held that the fact, that accident had occurred due to rash and negligent driving by the driver of the said bus was not proved. Accident had occurred only on account of evasive action taken by the bus driver in order to save the child. Learned tribunal has further held that for maintainability of claim petition filed under section 166 of the 1988 Act, rash and negligent driving by the offending vehicle is must, which is absent in the present matter. The claim petition is a collusive petition between the claimants and the owner of the vehicle, therefore, deserves to be rejected.

When the rival arguments are considered, in this background it has to be observed that the issues framed by the learned tribunal do not confirm to the provisions contained in Order XIV Rule 1, C.P.C. Sub-Rule 1 of the said provision prescribes that issues arise when a material proposition of fact or law is affirmed by one party and denied by the other. Sub-Rule 2 further says that material propositions either of law or fact have to be necessarily sated and Sub-Rule 3 mandates the court to frame a distinct issue for each material proposition. The Hon'ble Apex Court in the case of Kalyan Singh Chouhan Vs. C.P. Joshi, 2011 (11) SCC 786 has explained the object of framing issues. According to Hon'ble Apex Court the object of framing issues is to ascertain the area of dispute and pinpoint the points requires to be determined by the court. Keeping in view the above mentioned provisions and object underlying them, we find that the non-contesting respondent has specifically stated that the accident had not occurred in the manner stated in the claim petition, but it had occurred in order to save a child, who came suddenly in front of the said bus. Further in the written statement filed on behalf of respondent no.1 not only the manner in which the alleged accident took place was disputed, but also it has been specifically pleaded that claimants had no cause of action to file the claim petition and claims tribunal had no jurisdiction to try the same.

On these three points issues were not framed. In Kalyan Singh's case (supra) the Hon'ble Apex Court has held that in the matter of adducing evidence parties are not guided by the pleadings, but by the issues. In the present case, non-framing of material issues have resulted in non-production of material evidence on those points. In this case, the Hon'ble Apex Court has further observed that the court should not decide a suit on matter/point on which no issue has been framed. This legal proposition is enough for us to come to the conclusion that the learned tribunal has rejected the claim petition on the ground in relation to which no issue was framed by it. We are further of the opinion that in the present case non-framing of issues have resulted in non-production of relevant evidence, therefore, the claim petition was not fairly tried and decided.

Findings recorded in reference to issue nos.1 & 2 are not substantially covered under these issues and the sole ground of rejection of the claim petition does not find any place in the issues framed by the learned tribunal. In order to ensure that by the omission of the learned tribunal, no injustice should be caused to any party, the present claim petition requires to be tried afresh. With a view to ensuring fair retrial it is necessary for us to set aside the impugned judgment and order wherein erroneous findings on inadequate evidence have been recorded. It appears to us the only option suitable for the purpose is to remand the case under Order 41 Rule 23A of the C.P.C. after setting aside the impugned judgment and award for retrial.

Accordingly, the appeal is allowed. Impugned judgment and award are set aside under Order 41 Rule 23 A, C.P.C. Claim Petition No.243 of 2003 is remanded back to the learned tribunal for retrial in the light of the observations made by us hereinabove.

Order Date :- 18.4.2015

T. Sinha