Sunita and Ors. Vs. Divisional Manager, New India Assurance Company Ltd. and Ors. - (High Court of Bombay) (04 Jun 2019)

Judgment on all issues is to be pronounced mandatorily

MANU/MH/1297/2019

Motor Vehicles

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 Tribunal. 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.

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.

In case Radheshyam & others Vs. Keshav Prakash Jain & others, 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.

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 that 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. It is mandatory to pronounce judgment on all the issues.

The judgment and award passed by the Tribunal is hereby set aside. The said petition is restored to the file of the learned Member with a direction to dispose it on merits, in accordance with law. The first appeal is hereby allowed.

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