Mohammad Abullas @ Abdul And Anr. vs Mussadi Lal And Ors.
2005 Latest Caselaw 376 Del

JUDGMENT

B.C. Patel, C.J.

Admit.

1. Learned counsel for the respondents waive service of notice.

2. At the request of learned counsel appearing for the parties, we are taking up the matter for final disposal.

3. Before the Motor Accident Claims Tribunal, Tis Hazari, Delhi claim Petition No. RBT-393/2003 (Old No. 72 of 2002) was preferred by the petitioners, which was decided by the Tribunal on 19.5.2004.

4. One Bhoop Singh, aged 32 years, a gold smith earning about Rs. 6,000/- a month met with an accident when he was on his scooter on or about 14.12.2000 at or near Nizampur Road, Jeep No. DHD-5853 which was driven rashly and negligently by the driver hit the scooterist from back side. As a result of the impact, the scooterist fell down and became unconscious and was required to be removed to the hospital where later on he succumbed to the injuries on 27.12.2000. In view of this fatal accident, the legal representatives of the deceased filed a petition for compensation of Rs. 10,00,000/- against respondents 1, 2 and 3, being owner, driver and insurer respectively. After examining the evidence on record, the Tribunal arrived at a conclusion that the claimants are entitled to get the award to the tune of Rs. 4,10,000/- and apportionment was also made as recorded in para 9 of the judgment. Further directions were given about deposit etc.

5. Against this decision, original owner of the vehicle involved in the accident preferred appeal being MAC App. No. 470/2004, which was placed before the learned Single Judge for hearing on 5.11.2004 and the order was passed, which reads as under:-

"MAC.App.470/2004 and CM.APP. 13830/2004;

This appeal is directed against the orders dated 19.5.2004 and 6.10.2004 passed by the Motor Accident Claims Tribunal in Claim petition No. RBD 393/2003 (old No. 72/2002). The claimants were awarded a sum of Rs. 4,10,000/- as compensation.

With the assistance of counsel for the appellant, I have gone through the record of the case and the judgment under challenge. I am satisfied that the judgment under challenge suffers from no infirmity perversity, impropriety, illegality or jurisdictional error.

MAC. App 470//2004 and CM.APPL.13830/2004 are dismissed."

Against this order, the present appeal is preferred.

6. Ordinarily a first appeal is a matter of right unless the appeal is so frivolous and without substance that even at the admission stage it must be dismissed. If on the appreciation of evidence at the admission stage the court is of the opinion that the appeal is not required to be entertained, the appeal can be dismissed. Again recording of the reasons for the same is a must. However, the first appellate court must deal with the issue on facts and on appreciation of evidence apart from any question of law which may arise.

7. The position is different in case of a writ petition or an appeal arising from a judgment delivered in the writ petition where the court is of the opinion that the order under challenge suffers from no infirmity, perversity or impropriety. This would not be the position in case of a first appeal where both facts and evidence will have to be appreciated. The necessary ingredient in all cases is recording of the raison true for the order/judgment. The recording of reasons is essential. In a case of first appeal the reasons must deal with the facts and the evidence at least in some summary manner. There must be some indication in the judgment that the matter was considered in the proper perspective and the decision was so rendered. In the case of first appeal it is not only a question of law which is required to be considered.

8. We may note that in case of Girijanandini Devi and Ors. v. Bijendra Narain Choudhary AIR 1986 SC 1124 in paragraph 12 the Apex Court has pointed out that it is not the duty of the appellate court when it agrees with the view of the trial court on the evidence either to restate the effect of the evidence or to reiterate the reasons given by the trial court. Expression of general agreement with the reasons given by the court decision of which is under appeal would ordinarily suffice. In case of Kerala Transport Company v. Shah Manilal Mulchand and Ors. reported in 1991 Suppl (2) SCC 461 the Apex Court pointed out that even if first appellate court affirms the findings of the trial court, it is the duty to record its reasons in brief for doing so. It is all the more necessary in a case where such court is a final court for finding of fact and where the judgment of the trial court based on appreciation of oral and documentary evidence is seriously challenged by a contesting party. In case of Kiranmal Zumerlal Borana Marwadi v. Dnyanoba Bajirao Khot and Ors. the Apex Court pointed out "Let it be remembered that it was the first appeal against the decision of the trial court and therein the appellant can and has raised serious questions of law and disputed decision on facts. We, therefore, think that this is pre-eminently a fit case which ought to have been admitted and disposed of on merits." Without expressing an opinion the matter was remanded to the High Court.

9. This is a case arising out of claim made before the Claims Tribunal constituted under the Motors Vehicles Act. The owner of the vehicle is contending that it is the liability of the insurance company. This aspect was required to be taken into consideration by adverting to the evidence led before the court, by referring to the policy issued by the insurance company and other such evidence. It is at this juncture we would like to refer to the decision of the Apex Court in United India Insurance Co. Ltd. v. Kanwal Nain Sachdeva and Ors. wherein court has pointed in paragraph 3 as under:

"The High Court dismissed the appeal by a cryptic order stating that no case had been made out for interfering in the well reasoned award of the Motor Accident Claims Tribunal. In our opinion, the High Court ought to have discussed the merits of the contentions raised by the Insurance Company especially when it was dealing with the first appeal against the order of the Tribunal."

10. The Apex Court in Karnataka State Road Transport Corporation v. Asmathunnisa (Smt.) and Ors. considered the submission that the court did not consider all the relevant points and has not come to a reasoned conclusion for agreeing with the conclusion drawn by the trial court. The court pointed out that the appeal was not disposed of in accordance with law and without expressing any opinion on the merits of the controversy between the parties the appeal was remanded.

11. The Apex Court in the case of Satya Pal and Ors. v. Tek Ram and Ors. In Civil Appeal No. 1493/2004 decided on March 8, 2004 pointed out as under:

"We are of the view that the manner of disposal given by the Division Bench could hardly be said to be a judicious or judicial disposal of the matter as is expected of a first appellate court. Though the appellate court while passing an order in affirmence need not give detailed and elaborate reasons, there should be sufficient indication of proper application of mind before court. To see that the impugned order is a well reasoned order and does not call for interference is no sufficient indication of application of mind."

12. Considering the aforesaid decisions, this being the first appeal against the order made by the Tribunal and also keeping in mind that the first appellate court is the final fact finding forum, such an order cannot be said to be in accordance with law for dismissal of an appeal. Where liability is seriously disputed and on appreciation of evidence placed before the court it is required to be affirmed or rejected, for which reasons are required as indicated by the various decisions of the Apex Court.

13. In the instant case, in the absence of any reasons recorded by the first appellate court it is not possible to consider this appeal on merits unless the first appellate court itself examines merits of the judgment of the Tribunal and records reasons for accepting or rejecting the first appeal. On this short ground alone the appeal is required to be allowed and the matter is required to be remanded before the learned single Judge for hearing in accordance with law. Ordered accordingly.

14. We are cautious of the fact that the Tribunal in paras 9 to 11 of the judgment indicated the manner of disbursement of the amount and depositing the same in the bank. Therefore, we are not passing any order with regard to the amount which the appellant has deposited in this Court and in view of that order and the order dated 5.11.2004, it will be open for the appellate court to pass appropriate order after hearing the parties to disburse the amount in accordance with law.