Vibha Kankanwadi JUDGMENT
Vibha Kankanwadi, J.
1. Present appeal has been filed by the original claimants challenging the dismissal of their claim petition under Section 166 of the Motor Vehicles Act, 1988, by the learned Member of the Motor Accident Claims Tribunal, Sangamner, District Ahmednagar, in Motor Accident Claim Petition No. 84 of 2009, dated 16-01-2018. [Parties are referred as per their nomenclature before the Tribunal.]
2. The petitioners had come with a case, that petitioner no. 01 is the widow. Petitioner no. 02 is the mother and petitioners no. 03 to 05 are children of deceased Ashok Keru Balsaraf. Said Ashok was 42 years old, centering contractor and agriculturist, who used to earn Rs. 10,000/- per month from centering contract and Rs. 10,000/- per month from agriculture. Deceased Ashok was proceeding from Sangamner to Akole at about 02.30 p.m. on 15-03-2009 on his motorcycle bearing temporary registration mark MH-17-TC-155/156/157. When he came near brick kiln of one Jorvekar on Sangamner-Akole road, he was dashed by Bolero jeep bearing No. MH-12/BG-4170 driven by opponent no. 03. The said jeep had come from opposite direction. It is stated that it was driven in a high speed rashly and negligently. As a result of dash, Ashok fell down, sustained grievous injury and died on the spot. It is stated that the accident took place due to the negligence on the part of opponent no. 03 against whom C.R. No. I-24/2009 was registered with Sangamner City Police Station. It is stated that all petitioners were dependent on the income of the deceased and, therefore, they have claimed compensation of Rs. 20,00,000/- together with interest.
3. Opponents no. 02 and 03 filed written statement at Exhibit 22, who are the owner and driver of the offending vehicle. Opponent no. 01 is the Insurance Company. It has filed written statement at Exhibit 26. All of them have denied the allegations about rashness and negligence and involvement of the vehicle i.e. Bolero jeep bearing No. MH-12/BG-4170. They have denied the age, income and occupation of the deceased. They have admitted that opponent no. 01 had insured the Bolero jeep on the date of the accident. However, opponent no. 01 has taken statutory defences also.
4. Taking into consideration the rival contentions, issues have been framed. The petitioners have led evidence of petitioner no. 01 who has been cross examined by the opponents. However, there is no evidence led by the opponents.
5. Taking into consideration the evidence on record and hearing both sides, the learned Member of the Tribunal has held that the petitioners have failed to prove that the accident was caused due to the rash and negligent driving on the part of opponent no. 03. Though it was held that Ashok died in that accident, the petition itself was dismissed on 16-01-2018. Hence, this first appeal.
6. Heard learned Advocate Mr. R.L. Kute appearing for the appellants-original claimants. Heard learned Advocate Mr. S.G. Chapalgaonkar appearing for respondent no. 01-Insurance Company. None for respondents no. 02 and 03, though served.
7. It has been vehemently submitted on behalf of the appellants, that the learned Tribunal failed to consider the documents on record. Though certified copies of the police papers were produced, they were not exhibited and especially the first information report has not been considered. Much stress has been given on the contents of the panchanama, but the Tribunal failed to consider the directions in proper perspective. Though petitioner no. 01 had not seen the accident, she had relied on the police papers and on the basis of the same, she had made a categorical statement that the jeep had come to the wrong side before giving dash to the motorcycle driven by Ashok. There is no proper appreciation of the evidence in respect of the manner in which the accident took place and further even alternatively, computation of the compensation has not been made. He, therefore, mainly prayed for remand of the matter.
8. Per contra, learned Advocate appearing for respondent no. 01 submitted that the contents of the panchanama, though the document was not exhibited, was considered by the Tribunal. If the situation in the panchanama is considered, then it would be seen that there was negligence on the part of the deceased who had gone to the wrong side because the impact appears to be at a distance of 04 feet from the northern side which was a wrong side for the deceased. Alternatively, he also submitted that if the FIR is to be considered, then it is also required to be considered, taking into consideration the contents of the FIR together with the panchanama, that there was contributory negligence on the part of the deceased.
9. It is to be noted that the learned Tribunal started with a note that the accident is admitted and, therefore, it is specifically stated that the inquest panchanama and post mortem report have been proved by the petitioners. It was thereafter stated that the question only remains as to who was negligent. One of the facts, that has been highlighted is that the petitioners have not examined the eye witness and thereafter the Tribunal went on to take into consideration the contents of the spot panchanama. However, what is missing is that there is absolutely no discussion in respect of the FIR. There is no reason as to why the investigation papers were not exhibited. When the Tribunal started with admitted position, then all the documents on record ought to have been considered including that of the FIR. At this stage, only a fact can be mentioned, that the FIR was filed by an eye witness and the prosecution was against opponent no. 03. Further, situation in respect of the spot panchanama cannot be stated in isolation because the spot was shown by the informant himself. Under such circumstance, the learned Tribunal ought to have considered the contents of the FIR together with the contents of the spot panchanama. The police papers being public documents, ought to have been considered. In fact, they are required to be directly read in evidence. Support can be taken of the decision in Oriental Insurance Company Vs. Sangita Jamdade [MANU/MH/1406/2004 : 2006 ACJ Bom. 971], Rajasthan State Road Transport Corporation Vs. Nandkishor & others [MANU/RH/0937/2001 : 2002 ACJ 1564 (Rajasthan)] and Radheshyam & others Vs. Keshav Prakash Jain & others [1987 ACJ 280 (Rajasthan)], wherein it has been held that the certified copies of FIR, panchanama and medical papers prepared by public servants in discharge of their public duty are admissible in evidence.
10. As regards the finding given by the Tribunal, that the petitioners have failed to prove that the accident was caused due to rash and negligent driving on the part of opponent no. 03, it appears that the Tribunal further did not alternatively discussed the other issues those were framed. In fact, even if on one issue a finding is given in negative, yet, it was incumbent on the part of the Tribunal to alternatively discuss the other issues, so that the possibility of remand by the appellate Court could have been avoided. Under Order XIV, Sub-rule 2 of Rule 2, makes it mandatory to pronounce judgment on all the issues. Under such circumstance, as aforesaid, the Tribunal, though giving finding in negative to one issue, ought to have discussed the other issues in order to facilitate the appellate Court, if the appellate Court would have taken contrary finding to the issue which has been answered in the negative by the Tribunal. Same view was taken by Hon'ble Himachal Pradesh High Court in Kaljang Dorje Vs. Dorje Phunchok & another [2007 ACJ 1472], wherein in para no. 19, it has been observed thus:-
"The learned Tribunal did not give his findings on issue Nos. 2 to 6 framed by him since he held that the accident occurred on account of overloading of the vehicle and not due to rash and negligent driving on the part of the driver. In my opinion, learned Tribunal did not follow the proper procedure. Order 14 of the Code of Civil Procedure lays down that notwithstanding that a case may be disposed of on a preliminary issue, the court shall subject to the provisions of sub-rule (2), pronounce judgment on all issues. Thus learned Tribunal was required to give its findings on all the issues even if the petition was being dismissed on one of the issues. In case the learned Tribunal had decided all the issues, then the appeals could have been disposed of on merits by this court itself. Since this has not been done by the learned Tribunal, there is no other option but to remand the cases back to the learned Tribunal below for decision on the remaining issues."
Similar observations can be found by the High Court of Karnataka at Bangalore, in Mallamma Vs. Mahaboob Ali & another [MANU/KA/0250/2009 : 2011 ACJ 728], wherein in para 17 it has been observed thus:-
"Learned Tribunal while rejecting the petitions has not assessed the compensation payable to the appellants, though the appellants have placed on record the evidence even with regard to the loss. Unfortunately, on the measure of the compensation amount, the Tribunal recorded no finding. It was its duty to record findings on all the issues even if on the finding of any one of the issues it was possible to decide the matter one way or the other. Under Order 20, rule 5 of Code of Civil Procedure, 1908, it is mandatory that the court shall state its finding or decision, with the reasons therefor, upon each separate issue and all the distinct issues have to be answered separately. The exceptional situations are only those provided under Order 14, rule 2(2), where an issue relating to the jurisdiction or a bar to a suit/proceedings is required by any law for the time being in force to be decided as a preliminary issue. In matters of the present nature where evidence is recorded on all the issues, when there is scope of appeal like the one under section 173 of the Act, to avoid delay and protraction of litigation, the Tribunal/court should, when dealing with the matter dispose of all the issues and not merely to rest its decision on one or more issues by leaving unanswered the remaining issues/points. Such a course of action, when an appeal is filed by the aggrieved party, will enable the appellate court to decide the whole matter at once."
11. Now, taking into consideration the fact that important documents have not been considered by the Tribunal and they are not read conjointly and a fair and proper opportunity appears to have not given, the matter deserves remand. At the same time, when the Insurance Company also intends to take alternative defence regarding contributory negligence, an opportunity can also be given to the Insurance Company in that respect. Therefore, though it may not be advisable to remand the matter in such cases which are basically of summary nature, but if proper opportunity was not given, then there is no alternative left with this Court. Since the matter deserves to be remanded, this Court refrains itself from making further observations on the merits of the case.
12. Hence, the following order:-
(a) The first appeal is hereby allowed.
(b) The judgment and award passed by the learned Member of the Motor Accident Claims Tribunal, Sangamner, District Ahmednagar, in Motor Accident Claim Petition No. 84 of 2009, dated 16-01-2018, is hereby set aside. The said petition is restored to the file of the learned Member with a direction to dispose it of on merits, in accordance with law and the observations made herein above. The learned Tribunal is directed to give proper opportunity to both the parties to lead evidence.
(c) Taking into consideration the fact that the matter is old, the learned Tribunal is directed to expedite the matter and decide it as expeditiously as possible and in any case, before 31st December 2019. Both the parties are directed to appear before the Tribunal on 24th June 2018.
(d) Record & proceedings be sent back to the Tribunal immediately.
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