Usha Aggarwal vs Pramod Kumar Gupta & Ors.
2010 Latest Caselaw 639 Del

*IN THE HIGH COURT OF DELHI AT NEW DELHI

                   +    MAC.APP.No. 307/2004

                             Date of Decision:4th February, 2010,
%

      USHA AGGARWAL              ..... Appellant
                   Through Mr. R.K. Tripathi, Advocate.
              versus

    PRAMOD KUMAR GUPTA & ORS.        ..... Respondents
                  Through Mr. K.L. Nandwani, Advocate.
CORAM :-
THE HON'BLE MR. JUSTICE J.R. MIDHA

1.      Whether Reporters of Local papers may               NO
        be allowed to see the Judgment?

2.      To be referred to the Reporter or not?              NO

3.      Whether the judgment should be                      NO
        reported in the Digest?

                        JUDGMENT (Oral)

1. The appellant has challenged the award of the learned

Tribunal whereby compensation of Rs.1,10,000/- has been

awarded to the claimants.

2. The accident dated 27th April, 2001 resulted in the

death of Jitender Prasad Aggarwal. The deceased was

survived by his mother, who filed the claim petition before

the learned Tribunal.

3. The deceased was aged about 23 years at the time of

the accident and was qualified MCA (Master of Computer

Applications). The deceased had the appointment letter for

joining a Company at Dubai at a salary of US$ 1280

equivalent to Rs.65,000/-.

4. Learned counsel for appellant submits that the

appellant filed a claim petition under Section 166 of the

Motor Vehicles Act and the appellant proved the case by

examining herself as PW-1. The appellant also produced the

eye witness PW-2 to prove that the accident occurred due to

the rash and negligent driving of the offending vehicle. The

learned counsel submits that the Claims Tribunal treated the

claims petition under Section 166 of the Motor Vehicles Act.

The learned counsel further submits that the learned

Tribunal ought to have passed an award under Section 166

of the Motor Vehicles Act.

5. The learned counsel for respondents submits that the

claim petition was filed under Section 163 A of the Motor

Vehicles Act and the learned Tribunal has passed the award

in accordance with law.

6. The trial court record reveals that the learned Tribunal

framed the following issues on 16th August, 2002:-

"On the pleadings of the party, following issues were framed:-

i) Whether Sh. Jitender Aggarwal died in an accident caused due to rash and negligent driving of vehicle No. HR-03-CTA-369 by respondent no.1?

ii) Whether the petitioner is entitled to compensation? If so, to what extent and from whom?

iii) Relief."

7. After the framing of issues, the appellant led the

evidence and proved that the accident occurred due to the

rash and negligent driving of the offending vehicle.

8. The framing of issue relating to the rashness and

negligence and the evidence led by the appellant shows that

the appellant was prosecuting the claim under Section 166 of

the Motor Vehicles Act and the learned Tribunal was also all

throughout treating the claim under Section 166 though the

title of the claim petition mentions Section 163A.

9. In the facts and circumstances the impugned award is

set aside and the case is remanded back to the Claims

Tribunal to conduct the inquiry under Section 166 of the

Motor Vehicles Act. The learned Tribunal shall afford

adequate opportunities to the parties in the matter before

passing the final award.

10. Considering that the case relates to the accident dated

27th April, 2001, the learned Tribunal shall complete enquiry

within a period of four months. Parties are directed to appear

before the Claims Tribunal on 26th February, 2010. The Trial

Court record be sent back forthwith.

11. Copy of this order be given 'Dasti' to learned counsel

for both the parties under signature of Court Master.

J.R. MIDHA, J FEBRUARY 04, 2010/HL