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2007 DIGILAW 400 (PAT)

Panchanand Pandey v. Prabhu Singh

2007-02-22

SYED MD.MAHFOOZ ALAM

body2007
Judgment Syed Md.Mahfooz Alam, J. 1. This Miscellaneous Appeal has been preferred by the claimant-appellant against the judgment dated 8th May, 1997 passed by Sri P.N. Prasad, 3rd Additional District Judge-cum-Motor Vehicle Accident Claim Tribunal, Saran at Chapra in Claim Case No. 32 of 1993 whereby he has been pleased to dismiss the claim application of the appellant. 2. The brief facts of the case are as follows:- Appellant, Panchanand Pandey, filed claim application on account of the death of his son Deepak Pandey aged about 8 years who met with an accident on 8.8.1993 at 9.30 A.M. near village Basdila and died on the spot. The registration number of offending vehicle was BHD 1645 which was being driven in rash and negligent manner as a result of which accident took place. For the said accident, a criminal case bearing Kopa RS. Case No. 63/ 93 dated 8.8.93 was instituted against the driver of the truck and thereafter this claim application was filed by the appellant, the father of the deceased Deepak Pandey. 3. Before the Tribunal, the owner as well as the insurer (United India Insurance Company Limited) appeared and contested the claim by filing written statement. However, no oral or documentary evidence was adduced on behalf of the owner as well as the insurer of the vehicle and only the claimant-appellant adduced oral as well as documentary evidence. 4. From perusal of the judgment of the Tribunal it appears that the Tribunal framed altogether four issues in this case which are as follows:- (1) Is the claim case maintainable? (2) Was the truck driver driving the truck rashly and negligently? (3) Was the truck insured at the time of accident? (4) Is the claim amount as claimed by the claimant proper and payable? 5. From perusal of the judgment it appears that on issue no. 1 the Tribunal held that the claim application was not filed by a proper person and as such, he doubted the very identity of the claimant, Panchanand Pandey claiming to be the father of the deceased and so, the Tribunal gave its finding on issue no. 1 that the claim application is not maintainable. On issue no. 1 the Tribunal held that the claim application was not filed by a proper person and as such, he doubted the very identity of the claimant, Panchanand Pandey claiming to be the father of the deceased and so, the Tribunal gave its finding on issue no. 1 that the claim application is not maintainable. On issue no. 2, the Tribunal held that the court (Tribunal) was unable to hold that the truck in question was being driven in rash and negligent manner causing the death of the son of the applicant on the alleged date of occurrence. On issue no. 3, the Tribunal held that the vehicle in question was insured under the Insurance Company. However, the Tribunal did not give any finding on issue no. 4 regarding the quantum of compensation and hold that this issue has become redundant in view of its finding on issue nos. 1, 2 and 3. 6. It has been submitted by the learned Advocate of the appellant that the findings of the Tribunal are perverse as the same are against the materials available on record. The learned Advocate submitted that neither the owner of the truck nor the insurer of the vehicle had challenged the identity of the claimant-appellant and merely on the basis of the fact that the claimant had put his signature on the vakalatnama as well as on claim application in English but on his deposition, he had put his signature in Hindi, it cannot be said that the claimant is a fictitious person. I am in full agreement with the argument of the learned Advocate of the appellant and I hold that the finding of the Tribunal that the claim application was not maintainable because the claimant had put his signature on vakalatnama and claim application in English but in court he had put his signature on his deposition in Hindi, is perverse. The reasoning given by the Tribunal is absurd based on no evidence and any finding which is based on no evidence is definitely perverse. In such view of the matter, I hold that the above finding of the Tribunal is perverse and must be set aside. Accordingly, the above finding is set aside and it is held that the claim application is maintainable. 7. In such view of the matter, I hold that the above finding of the Tribunal is perverse and must be set aside. Accordingly, the above finding is set aside and it is held that the claim application is maintainable. 7. As regards the finding of the Tribunal that the court is unable to hold that the truck in question was being driven in rash and negligent manner, I find that this finding is also against the materials available on record as on this point at least two witnesses were produced on behalf of the claimants, who have deposed that the accident had taken place due to rash and negligent driving of the driver of the truck. They are A.P.W. 1 Panchanand Pandey and A.P.W. 2 Subhash Pandey. To rebut the evidence of the abovesaid witnesses, neither the owner nor the insurer of the vehicle has adduced any evidence and as such, the evidence of A.P.W. 1 and A.P.W. 2 on the point of rash and negligent driving is ex parte and there was no reasonable explanation for rejecting the evidence of A.P.W. 1 and A.P.W. 2 on this point. Moreover, the manner of occurrence in which the deceased was crushed to death by the offending truck itself discloses that the driver of the truck was driving the vehicle very rashly and negligently. The principle of "Res ipsa loquitor" applies in this case but unfortunately, the Tribunal without applying its mind and ignoring the evidence of A.RW. 1 and A.P.W. 2 whimsically came to the conclusion that there is no evidence that the driver was driving the truck rashly and negligently. I, therefore, set aside the above finding of the Tribunal and hold that there is uncontroverted evidence of A.P.W. 1 and A.P.W. 2 that at the time of alleged occurrence, the driver of the concerned truck was driving the offending truck very rashly and negligently due to which accident was caused. 8. On issue no. 3, I find that there is no denial thai the truck in question was not insured during the relevant time and, therefore, this finding of the Tribunal is affirmed. 9. Now the only controversial point which remains to be decided in this case is issue no. 4 i.e. the quantum of compensation and who is liable to pay the compensation. 3, I find that there is no denial thai the truck in question was not insured during the relevant time and, therefore, this finding of the Tribunal is affirmed. 9. Now the only controversial point which remains to be decided in this case is issue no. 4 i.e. the quantum of compensation and who is liable to pay the compensation. It has been argued by the learned Advocate of the Insurance Company that since the Tribunal has not given its finding on this point as such, the only course available to this Court is to remand this case to the Tribunal for ascertaining the quantum of compensation and also for ascertaining-whether the owner is liable to pay the compensation or the Insurance Company is liable to pay the compensation. I am of the opinion that the argument of the learned Advocate of the Insurance Company appears to be correct as the learned Tribunal has failed to give any finding on the point of quantum of compensation and the liability of the parties to pay the compensation. I am of the view that in order to decide any point in the appeal, there should be a definite finding of the lower court on that point so that the appellate court can scrutinise the reasoning of the lower court upon which its findings are based. Therefore, I do not find any alternative except to remand this case to the Tribunal to decide the limited question on the point of quantum of compensation and which party is liable to pay the compensation. 10. In the result, this Miscellaneous Appeal is allowed and the findings of the learned Tribunal on issue nos. 1, 2 and 3 are set aside and reversed. The claim case is remitted back to the Tribunal for giving its finding only on the issue framed as below:- "What should be the quantum of compensation payable to the applicant in this case and by whom it will be realised?" 11. Let the lower court records be immediately sent back to the Tribunal with direction to the Tribunal to decide the point within three months from the date of receipt of this judgment.