Kalawati Devi & Others vs Kalim Uddin & Others
2021 Latest Caselaw 216 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
           (Civil Miscellaneous Appellate Jurisdiction)
                  M.A. No. 332 of 2014
                         ........

Kalawati Devi & Others .... ..... Appellants Versus Kalim Uddin & Others .... ..... Respondents

CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO (Through : Video Conferencing) ............

For the Appellants : Mr. Achinto Sen, Advocate. For the Respondent Nos. 1 &2 : Mr. Lalan Kumar, Advocate. For the Respondent No. 3 : Mr. Manish Kumar, Advocate.

........

05/15.01.2021.

I.A. No. 4445/2014 The aforesaid interlocutory application has been filed for condonation of delay of 13 days in filing the instant miscellaneous appeal.

Having heard, learned counsel for the appellants and considering the reasons mentioned in para-3, 4, & 5 of the aforesaid I.A., the delay of 13 days in filing the instant miscellaneous appeal is hereby condoned.

Accordingly, I.A. No. 4445/2014 stands disposed of. M.A. No. 332/2014 Heard, learned counsel for the appellants, Mr. Achinto Sen, learned counsel for the respondent nos. 1 & 2, Mr. Lalan Kumar and learned counsel for the respondent no. 3 - Insurance Company, Mr. Manish Kumar.

Learned counsel for the appellants has submitted that (i) Kalawati Devi, (ii) Kalayan Kr. Brahuria @ Kalayan Kumar, (iii) Sanjay Kumar Brahpuria and (iv) Anuj Kumar being the claimants are appellants before this Court and they have preferred this appeal against the judgment dated 26.04.2014 passed by learned District & Sessions Judge-cum-M.A.C.T. Court No. 1, Koderma, in Claim Case No. 08/2009, whereby the claim application filed by the claimants has been dismissed.

Learned counsel for the appellants has submitted that the learned Tribunal has wrongly dismissed the claim application without appreciating the ocular and documentary evidences and failed to consider the F.I.R. being Koderma P.S. Case No. 263/2005

as the admitted facts are available on record. One of the claimants i.e. C.W.-1 Kalyan Brahapuria, who was riding the motorcycle has been examined and has categorically stated that the deceased was initially treated at Jhumri Telaiya and subsequently, at Sisir Sewa Sadan, Ranchi. Further, it has been categorically submitted that the learned Tribunal has not considered other relevant materials available on the record, rather on the basis of non-production of post- mortem report, concluded that the death was not due to road accident injury.

Learned counsel for the respondent no. 1 & 2 (owner and driver of the offending vehicle), Mr. Lalan Kumar has submitted that he appears in this case for the owner and driver of the offending vehicle bearing no. JH-12A-1774.

Learned counsel for the respondent no. 3 - Insurance Company has submitted that the learned Tribunal has rightly dismissed the claim application as the claimants have failed to adduce any relevant record in support of their claim. The claimants failed to adduce the post-mortem report and there is no paper on record, which can justify that the deceased died in the road accident. Further, it has been submitted that the claim application in the present form is not sufficient to be appreciated under the eyes of law and award cannot be passed. The story as a whole substantiate, that the deceased died due to his own ailment and not due to road accident injury and found that the story of the claimants is concocted.

After hearing the learned counsel for the parties and looking into the facts and circumstances of the case, it appears that the evidences has not been properly brought before the learned Tribunal. The learned Tribunal has failed to appreciate available evidences on record properly, as such, in the absence of such evidences, the matter cannot be adjudicated at this conjecture.

Accordingly, the impugned judgment dated 26.04.2014 passed by learned District & Sessions Judge-cum-M.A.C.T. Court No. 1, Koderma in Claim Case No. 08/2009 is hereby set aside.

The instant miscellaneous appeal is disposed of. The instant matter is remanded to the court below for re- consideration and decide afresh after giving opportunity to party to adduce evidence.

The parties are directed to appear before the learned Tribunal within a period of 30 days from today. The parties have also undertaken that they will appear before the learned Tribunal within 30 days from today.

The learned Tribunal shall frame the issues and allow the parties to adduce the evidence and decide the issues within 09 months from the date of framing of issue.

No further notice is required to be issued to any of the parties as they have undertaken before this Court that they will appear before the learned Tribunal.

(Kailash Prasad Deo, J.) Sunil/-