Himachal Pradesh High Court
Madan Lal vs Fateh Singh Buria & Another on 31 August, 2016
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO (MVA) No. 463 of 2011 Date of decision: 31.8.2016 .
Madan Lal. ...Appellant
Versus
Fateh Singh Buria & Another. ...Respondents
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
of Whether approved for reporting?1 No. For the Appellant: Mr. V.S. Rathore, Advocate.
For the Respondents:
rt Mr.Ritesh Sharma,
respondent No. 2.
Advocate, for
Tarlok Singh Chauhan J (oral).
Aggrieved by the dismissal of the claim petition by the learned Tribunal below, the appellant has filed the instant appeal under Section 173 of the Motor Vehicles Act, 1988 (for short the 'Act') questioning the said award.
2. The appellant had filed a claim petition on the ground that on 17.11.2003 at about 4:30 P.M. while he had un-boarded from a taxi at Jallag Baijnath, a taxi (van) bearing No. HP-02-6288 driven by respondent No. 1 in a rash and negligent manner hit him, as a result of which he sustained multiple injuries, including fracture of his right leg. He was initially taken to Civil Hospital, Baijnath and thereafter referred to RPM College Dharamshala, where he remained under treatment till 15.12.2003. On such allegations, compensation to the tune of `4,75,000/- with interest was prayed for. But as observed earlier, the said claim petition came to be Whether the reporters of the local papers may be allowed to see the Judgment? Yes ::: Downloaded on - 15/04/2017 21:06:54 :::HCHP 2 FAO (MVA) No. 463 of 2011 dismissed by the learned Tribunal below only on the ground that the petitioner had not been able to prove the alleged accident and that .
no person who was witness to this accident has been examined.
3. On 26.9.2007, the learned Tribunal below framed the following issues:-
"1. Whether the accident resulting into sufferance of injuries by the petitioner was on account of rash and negligent driving of by the respondent No. 1, as alleged? OPP
2. If issue No. 1 is proved in affirmative, whether the petitioner is entitled for compensation, if so, the amount thereof?
rt OPP
3. Whether the respondent No. 1 was not having valid driving licence, as alleged, if so, its effect? OPR-2.
4. Relief."
I have heard the learned counsel for the parties and also gone through the records of the case.
4. At the outset, it may be observed that the findings recorded by the learned Tribunal below to say the least are perverse and based on total misreading and mis-appreciation of the evidence on record. The appellant while appearing as PW-2 had with minutest procedure and accuracy set out in detail the mode and manner in which the accident had occurred. Not only this, he also produced on record a copy of compromise Ex. PW-2/C, arrived by respondent No. 2 with him, wherein not only the factum of accident was admitted by respondent No. 2, but he also undertook to bear all the expenses of the appellant's treatment and on such condition, the appellant had undertaken not to pursue any criminal action against respondent No. 2.
::: Downloaded on - 15/04/2017 21:06:54 :::HCHP 3 FAO (MVA) No. 463 of 20115. Strangely enough, the compromise and the report lodged by the appellant before the police vide Ex. PW-1/A have .
been discarded as self serving statement of the appellant. How the learned Tribunal has reached in such conclusion is beyond my comprehension.
6. That apart, the learned Tribunal in earlier part of the of judgment has categorically stated that no eye witness had been examined and when the appellant examined PW-3, the alleged eye rt witness, his testimony was discarded only on the ground that his presence at the time of accident appeared to be doubtful, because the appellant had nowhere stated that PW-3 was present when the alleged accident took place. The learned Tribunal has failed to take into consideration the fact that the appellant had sustained serious injuries and was in agony and pain and therefore, in such circumstances was not expected to make account of those persons who may have been present at the time of accident. Such knowledge of the witnesses can come at any time and may even come when the case is at the stage of arguments.
7. It is more than settled that unless the testimony of the witness fails to inspire confidence, the same cannot be discarded only on the ground of suspicion alone.
8. Indisputably, the learned Tribunal has not given any findings and rightly so with regard to the entitlement of compensation, as according to him, the appellant had failed to prove Issue No. 1. In such circumstances, it would only be proper to remand the case to learned Tribunal below for giving findings afresh ::: Downloaded on - 15/04/2017 21:06:54 :::HCHP 4 FAO (MVA) No. 463 of 2011 on Issues No. 1, 2 and 4 and since the findings on Issue No. 3 have already attained finality, the same is, therefore, not open to question .
at this stage.
9. In view of the aforesaid discussion, I find merit in this appeal and the same is accordingly allowed. The matter is remanded to the learned Tribunal below with a direction to decide of Issues No. 1, 2 and 4 afresh. It is made clear that the parties shall only be entitled to address arguments and shall not be permitted to rt lead any further evidence and at the same time, it is made clear that the learned Tribunal below shall not disturb the findings already rendered on Issue No. 3, which has attained finality.
The parties through their learned counsels are directed to appear before the learned Tribunal below on 15th September, 2016.
10. Since the claim petition was instituted more than 12 years back, it is expected that the learned Tribunal below shall decide the same as expeditiously as possible and in no event later than 31st December, 2016.
With the aforesaid observations, the appeal is disposed of, leaving the parties to bear their costs.
(Tarlok Singh Chauhan), Judge.
31st August, 2016 (KRS) ::: Downloaded on - 15/04/2017 21:06:54 :::HCHP