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1988 DIGILAW 24 (ORI)

JAMUNA CHAND v. GANESH PRASAD GUPTA

1988-01-25

G.B.PATNAIK

body1988
JUDGMENT : G.B. Pattnaik, J. - This is an appeal u/s 110-D of the Motor Vehicles Act against the award of the Second Motor Accidents Claims Tribunal. 2. The appellant is the widow of deceased Rama Chandra Chand. The deceased was going on his scooter on the date of occurrence and near about the I.T.I., crossing at Rourkela, the bus bearing registration No. OSO 6780 dashed against the scooter as a result of which the deceased died on the spot. This application having been filed before the Tribunal, the Tribunal conducted the inquiry. Before the Tribunal," two witnesses were; examined on behalf of the claimant and on behalf of the respondents, the driver of the bus who was driving the vehicle was examined as OPW 1. The learned Tribunal on consideration of the evidence before him came to the conclusion that the accident in question occurred not on account of any negligence of the driver of the vehicle but on account of the negligence of the deceased himself and in that view of the matter, he only awarded the statutory compensation of Rs. 15,000/- u/s 92-A of the Motor Vehicles Act. It is this award of the Tribunal that is being impugned in this appeal. 3. Mr. AC. Mohanty, the learned Counsel appearing for the appellant, contends that the appellant should get a further chance to adduce evidence in the case so that she will not be prejudiced in any manner. But the aforesaid submission has been made more for invoking the sympathy of the court rather than on any legal ground. There, is no grievance on behalf of the appellant that she was not given due opportunity of adducing evidence. After adducing evidence, if the Tribunal comes to the conclusion that the claimant has failed to establish the negligence of the driver of the vehicle, the claimant cannot come forward and plead for further opportunity to adduce evidence and the appellate court would not be justified in remanding the matter again for the said purpose. The, power to remand should not be exercised to fill up the lacuna in a case. In the facts and circumstances of the present case, no ground has been made out for remanding the matter and, therefore, I am unable to persuade myself to agree with the submission of Mr. Mohanty, the learned Counsel for the appellant. 4. The, power to remand should not be exercised to fill up the lacuna in a case. In the facts and circumstances of the present case, no ground has been made out for remanding the matter and, therefore, I am unable to persuade myself to agree with the submission of Mr. Mohanty, the learned Counsel for the appellant. 4. The learned Counsel for the appellant then urges that the evidence of the driver, OPW 1, itself indicates that he was negligent in driving. I have carefully examined the evidence of the driver and I do not find any merit to the submission of Mr. Mohanty, the learned Counsel for the appellant. The evidence adduced on behalf of the claimant is not at all relatable to the alleged negligence of the driver of the vehicle. On the other hand, the driver of the vehicle examined as OPW I clearly shows that it is the deceased who was responsible for the accident in question. Nothing has been elicited from the cross-examination of the said driver so as to impeach his testimony. On the materials on record, in my view, the Tribunal was wholly justified in coming to the conclusion that the appellant failed to establish any negligence on the part of the driver of the vehicle which dashed to scooter on which the deceased was moving on the date of occurrence and accordingly, the award of the Tribunal is unassailable. 5. Mr. Mohanty further prays that the amount awarded may be paid to the appellant. It appears from the records of the case that two account payee cheques, one for Rs. 3,000/- (three thousand) in the names of Chinmay Chand, Niranmoy Chand and Lipi Chand and another for Rs. 15,378.08 (Fifteen thousand three hundred seventy-eight and paise eight) in favour of Jamuna Chand, the present appellant, have been filed before the Tribunal and those two cheques are on record. Mr. Mohanty for the appellant prays that the cheques in question may be handed over to the appellant on her giving due identity to the satisfaction of the Registrar of this Court. The learned Counsel appearing for the insurance company {respondent No. 2) has no objection to the aforesaid submission. Mr. Mohanty for the appellant prays that the cheques in question may be handed over to the appellant on her giving due identity to the satisfaction of the Registrar of this Court. The learned Counsel appearing for the insurance company {respondent No. 2) has no objection to the aforesaid submission. I would accordingly direct that both the cheques may be handed over to Jamuna Chand for herself and on behalf of her minor children on her satisfying the Registrar as to her identity and her counsel Mr. A.C. Mohanty will certify the person of the appellant before the Registrar at the time of delivery of the cheques in question. 6. Subject to the aforesaid observation, this appeal is dismissed, bat there will be no order as to costs.