Janka And 2 Ors. vs Akhilesh Kumar Gupta And 2 Ors.
2015 Latest Caselaw 3709 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Court No. - 1
 

 
Case :- FIRST APPEAL FROM ORDER No. - 761 of 2013
 

 
Appellant :- Janka And 2 Ors.
 
Respondent :- Akhilesh Kumar Gupta And 2 Ors.
 
Counsel for Appellant :- Santosh Kumar Kanaujia
 
Counsel for Respondent :- Vaibhav Raj
 

 
Hon'ble Dinesh Maheshwari,J.

Hon'ble Anant Kumar,J.

By the Court (per Dinesh Maheshwari, J.)

This appeal by the claimants-appellants is directed against the judgment and Award dated 24.05.2013 as made by the Motor Accident Claims Tribunal (Additional District Judge, Court No.3), Lakhimpur-Kheri ['the Tribunal'] in Motor Accident Claim Petition No.124 of 2012 whereby the Tribunal has proceeded to determine the relevant issue No.1 on the factum of accident against the claimants-appellants for want of evidence; and on that basis, has dismissed the claim application.

The relevant background aspects of the matter are that the appellant No.1, said to be a blind lady in 66 years of age and the appellant Nos.2 and 3, said to be the minors in about 12 and 9 years of age, preferred the claim application aforesaid through their next friend/guardian Shri Sanjay Kumar, who is son of the appellant No.1 and uncle of the appellant Nos.2 and 3. It was submitted that the victim Arvind Kumar died due to the injuries sustained in the vehicular accident caused by the vehicle belonging to the respondent No.1, which was being driven by the respondent No. 2 and was insured with the respondent No.3. While stating that the deceased was a skilled mason and was also engaged in agriculture, it was submitted that the claimant-appellant No.1 was the blind mother of the victim, whereas the claimant nos.2 and 3 were his minor sons, whose mother had already expired; and all the claimants were dependent solely on the victim. The other factual aspects relating to the accident and the basis of claim need not be dilated for the short point involved in this appeal.

The relevant aspects of the matter are that the claim application was filed on 03.04.2012 by Sanjay Kumar as the next friend/guardian of the claimants. In the claim application, issues were framed on 30.03.2013 with reference to the pleadings of the parties. Issue No.1 was framed on the question if the victim Arvind Kumar sustained injuries due to the accident caused by the vehicle belonging to the respondents and died because of such injuries. The Tribunal posted the matter for evidence on 04.04.2013 and then, adjourned the same to 16.04.2013.

On 16.04.2013, an affidavit of the aforementioned Sanjay Kumar, the guardian/next friend of claimants, was filed in evidence; and after filing of this affidavit, the non-applicants sought time for cross-examination that was given on costs of Rs.100/- and the matter was adjourned to 27.04.2013.

However, on 27.04.2013, nobody appeared for the claimants and their witness was also not present and therefore, the Tribunal proceeded to close down the evidence of claimants-appellants and then, heard the matter on 09.05.2013 in the absence of the counsel for the claimants-appellants; and thereafter, pronounced its judgment and Award on 24.05.2013. Obviously, for want of evidence, the Tribunal proceeded to decide issue No.1 against the appellants. Although the Tribunal decided other issues on the liability of the insurer in favour of the appellants, but in view of the finding on issue No.1, held that the claimants-appellants had failed to establish that the victim expired due to the alleged accident from the vehicle of the non-applicants; and therefore, proceeded to dismiss the claim application.

The learned counsel for the appellants has strenuously argued that the Tribunal has proceeded rather in an unnecessary haste and rejected the claim application without extending reasonable opportunity to the appellants and without considering that the claim application was being maintained by the guardian and next friend of the claimants-appellants, who were suffering from physical as also legal disability. It is submitted that the claim application deserves to be examined on merits while extending reasonable opportunity of evidence to the claimants-appellants. The learned counsel appearing for the respondent-insurer has duly supported the Award impugned with the submissions that the claimants-appellants having failed to establish the basic facts, the Tribunal has not committed any error in rejecting the claim application.

Having given thoughtful consideration to the entire matter, we are clearly of the view that on the facts and in the circumstances of this case, the impugned Award cannot be sustained and the matter deserves to be remanded to the Tribunal for consideration afresh.

A perusal of the record makes out that the Tribunal has obviously proceeded with an extra haste in the matter. The affidavit in evidence was filed on 16.04.2013 and on the next date, the evidence was closed for nobody having appeared for the claimants-appellants. Thereafter, the matter was heard (in the absence of claimants) on 09.05.2013 and was decided on 24.05.2013. In the process, the Tribunal omitted to consider that it were a matter of claim for compensation because of the death of the victim of a vehicular accident; and the claimants were said to be the persons suffering from physical as also legal disabilities inasmuch as the claimant No.1 was said to be the blind mother of the victim whereas claimant Nos.2 and 3 were said to be the minor sons of the victim.

Although affidavit in evidence was indeed filed by the guardian/next friend of the claimants on 16.04.2013 and hence he cannot be considered totally negligent in prosecuting the matter but, if at all the Tribunal found him wanting in attending on his duties and in prosecuting the matter, alternative arrangements could have been always ordered, rather ought to have been ordered, by the Tribunal for protection of the rights of the claimants who are shown to be the persons with disabilities.

It appears that in its haste for disposal, the Tribunal altogether failed to consider that the matter related to the claimants who were shown to be the persons under disabilities including minors; and if at all their next friend was found not doing his duties for prosecution of the matter, the next friend could have been removed and guardian ad-litem could have been appointed for the claimants on the principles referable to Order XXXII of the Code of Civil Procedure. The manner of disposal of the present claim application by the Tribunal without regard to all the facts and circumstances has only resulted in failure of justice and this manner of disposal cannot be endorsed.

In the totality of circumstances of the present case, we are clearly of the view that the interest of justice demands a merit hearing of the claim application, after reasonable opportunity of evidence to the claimants.

Accordingly and in view of the above, this appeal is allowed in the manner and to the extent that the impugned Award dated 24.05.2013 as passed in M.A.C.P. No.124 of 2012 is set aside. M.A.C.P. No.124 of 2012 shall stand restored for consideration by the Tribunal afresh.

The parties through their counsel shall stand at notice to appear before the Tribunal concerned on 21.12.2015. It shall also be required of the next friend/guardian of claimants, who has filed affidavit in evidence to remain present before the Tribunal concerned on the date of appearance. The Tribunal shall thereafter proceed with the matter in accordance with law keeping in view the observations foregoing.

The record of the Tribunal concerned be sent back immediately with a copy of this order. No costs.

Order Date :- 2.11.2015

lakshman

[Anant Kumar, J.] [Dinesh Maheshwari, J.]