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2007 DIGILAW 535 (PAT)

Gulam Nabi Khan v. State Of Bihar

2007-03-15

SYED MD.MAHFOOZ ALAM

body2007
Judgment Syed Md.Mahfooz Alam, J. 1. This Miscellaneous Appeal has been preferred by appellant Gulam Nabi Khan who was the applicant in Claim Case No. 27/99/80/94 which was disposed of on 23rd May, 2000 by 7th Additional District Judge-cum-Motor Vehicle Accident Claims Tribunal, Gaya whereby he has been pleased to reject the claim application of the appellants filed under Sec. 166 of the Motor Vehicles Act (hereinafter will be called "M.V. Act"). 2. During course of rgument, it has been submitted by the learned Advocate of the appellants that the lower court record will show that on 29.11.1995 the Tribunal passed an order for holding enquiry under Sec. 140 of the M.V. Act and thereafter the Tribunal examined as many as eleven witnesses on behalf of the applicant and two witnesses on behalf of the opposite party i.e. the owner of the vehicle. The learned Advocate of the appellants submitted that the depositions of all the witnesses will show that the evidences were recorded under the provision of Section 140 of the M.V. Act which goes to show that the enquiry was held for the purpose of ascertainingwhether the appellants were entitled to get compensation under "no fault liability" as provided under Sec. 140 of the M.V. Act and so, on the basis of that very enquiry, the claim application filed under Sec. 166 of the M.V. Act could not be finally disposed of but the learned Tribunal while passing the order on the application under Sec. 140 of the Act, finally disposed of the claim application filed under Sec. 166 of the M.V. Act which is illegal. On that ground alone, the learned Advocate of the appellants prayed to set aside the impugned judgment. 3. The learned Advocate appearing on behalf of the owner of the vehicle (respondent no. 2) conceded that the impugned order whereby the entire claim application filed under Sec. 166 of the M.V. Act was rejected by the Tribunal was passed while the Tribunal was passing order on the application filed under Section 140 of the M.V. Act. 4. 3. The learned Advocate appearing on behalf of the owner of the vehicle (respondent no. 2) conceded that the impugned order whereby the entire claim application filed under Sec. 166 of the M.V. Act was rejected by the Tribunal was passed while the Tribunal was passing order on the application filed under Section 140 of the M.V. Act. 4. On hearing the learned Advocates of both sides and on perusing the lower courts record, I am satisfied that the impugned order whereby the entire claim application filed under Sec. 166 of the M.V. Act was rejected by the Tribunal, was passed while the Tribunal was making order on the application filed under Sec. 140 of the M.V. Act after conducting enquiry under the said Section. 5. At this stage, I would like to say that the scope of enquiry under Section 140 of the M.V. Act is entirely different from the scope of enquiry under Section 166 of the M.V. Act. For coming to the conclueion that the claimant is entitled to get compensation under Sec. 140 of the M.V. Act no full-fledged enquiry is required but for disposing of the claim application under Sec. 166 of the M.V. Act there is need of thorough and fullfledged enquiry as the claimants are required to prove the rash and negligent driving of the driver of offending vehicle. Thus, the scope of enquiry under the abovementioned two sections of the M.V. Act is entirely different from each other. I am further of the view that even after the refusal of grant of compensation under Sec. 140 of the M.V. Act, the claimants are entitled to get opportunity to prove their case for grant of compensation under Sec. 166 of the M.V. Act by adducing oral and documentary evidence during full-fledged enquiry under Section 166 of the M.V. Act. In such view of the matter, I am of the opinion that the rejection of the entire claim application filed under Sec. 166 of the M.V. Act by the Tribunal at the stage of passing order on the application filed under Sec. 140 of the M.V. Act was not in accordance with law and, therefore, I am of the view that the impugned order must be set aside. 6. 6. In the result, this Miscellaneous Appeal is hereby allowed and the impugned order dated 23.5.2000 whereby the learned Tribunal has rejected the entire claim application of the claimants filed under Sec. 166 of M.V. Act is set aside and the claim case is remanded back to the Tribunal for passing fresh order on the application filed under Sec. 140 of the M.V. Act on the basis of the materials already available on record and then to proceed with trial for disposing of the claim application filed under Sec. 166 of the M.V. Act and to pass final order on the application under Sec. 166 of M.V. Act. The Tribunal is further directed to dispose of the claim application within four months from the date of receipt/production of this judgment. LA. No.1855 of 2000 7. In view of the aforesaid order, this interlocutory application being I.A. No.1855 of 2000 also stands disposed of as the same has become infructuous. 8. Let the lower court records be sent to the court below at once.