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2012 DIGILAW 101 (BOM)

Sudhir Ganpatrao Alone v. Pramod Ramrao Choudhary

2012-01-16

A.B.CHAUDHARI

body2012
Judgment Heard. Admit. Heard finally with the consent of learned counsel for the parties. This appeal is directed against the judgment and Award dated 5.2.2011 passed by Motor Accident Claims Tribunal, Amravati, in Claim Petition No.134 of 2007, whereby the claim petition was dismissed. 2. Learned counsel for the appellant vehemently argued that the legislation providing for compensation for accidents being welfare legislation, in normal course rule should be to grant compensation by ignoring the error committed by the claimant. According to him, the Tribunal committed an error in dismissing the claim petition filed by the appellant because the appellant stated in the claim petition that he was driving the vehicle and in the evidence stated that he was the pillion rider. He then argued that this error should have been ignored by the Tribunal and compensation should have been awarded particularly because the same was lodged under Section 163-A of the Motor Vehicles Act where provision has been made by Parliament for granting compensation in all eventualities. He further argued that the matter should be remitted to the Tribunal to enable the appellant to amend the pleadings and remove the lacuna. In support of his submission he relied on the decision of Supreme Court in (2008) 5 SCC 736 -Oriental Insurance Co. Ltd. v. Rajni Devi & ors. He further argued that the pillion rider in other claim petition got the relief of compensation and, therefore, there is no reason why the appellant should be deprived of the relief of compensation. 3. Per contra, learned counsel for the respondents opposed the appeal and argued that the case in hand was a straight case of dismissal because of the settled jurisprudence regarding pleading and evidence and, therefore, no fault could be found out with the impugned judgment and Award. 4. I have gone through the impugned judgment and Award. Having heard learned counsel for the rival parties, following points arise for my determination and my findings are recorded against them : (i) Whether the Tribunal committed error in dismissing the claim petition on the ground of variance in pleading and proof? No. (ii) Whether the Tribunal committed error in dismissing the claim? No. 5. At the outset, in the case of (a) J.K. Iron & Steel Co. No. (ii) Whether the Tribunal committed error in dismissing the claim? No. 5. At the outset, in the case of (a) J.K. Iron & Steel Co. Ltd. v. The Iron & Steel Mazdoor Union - AIR 1956 SC 231 , and (b) AIR 1979 SC 1652 -Shankar Chakravarti v. Britannia Biscuit Co. Ltd. the Supreme Court while considering the provisions of welfare legislation like Labour Law, in substance, held that the parties to the litigation even under Labour Laws which is a welfare legislation cannot be allowed to fly off at a tangent. Ultimately, the adjudications are made by the courts of law on the basis of pleadings and evidence tendered before them and on the preponderance of probabilities. The decisions cannot be rendered on surmises and conjectures and, therefore, parties to such litigation are noticed on particular pleadings and proof sought to be used in their favour or against them. Following are the observations made by the apex court in para 24 of the judgment in J.K. Iron & Steel Co., supra. "(24) Now the position in the present case is this. The Tribunals are directed by S.7, Industrial Disputes Act to adjudicate industrial disputes "in accordance with the provisions of the Act" and section 11 directs them to follow "such procedure as may be prescribed." The procedure for the Uttar Pradesh Tribunals is laid down by the U.P. State Industrial Tribunal Standing Orders, 1951." "Very broadly it follows the pattern of the civil Courts. Once the reference is made by Government, the Tribunal has to take the pleadings of the parties in writing and to draw up issues. Then it takes evidence, hears arguments and finally pronounces its "judgment" "in open Court." It is evident from this that though these tribunals are not bound by all the technicalities of civil Courts, they must nevertheless follow the same general pattern." "Now the only point of requiring pleadings and issues is to ascertain the real dispute between the parties, to narrow the area of conflict and to see just where the two sides differ. It is not open to the Tribunals to fly off at a tangent and, disregarding the pleadings, to reach any conclusions that they think are just and proper." 6. The apex court in Shankar Chakravati, supra, in para 31, 32 & 33 of the judgment, observed thus : "31. It is not open to the Tribunals to fly off at a tangent and, disregarding the pleadings, to reach any conclusions that they think are just and proper." 6. The apex court in Shankar Chakravati, supra, in para 31, 32 & 33 of the judgment, observed thus : "31. If such be the duties and functions of the Industrial Tribunal or the Labour Court, any party appearing before it must make a claim or demur the claim of the other side and when there is a burden upon it to prove or establish the fact so as to invite a decision in its favour, it has to lead evidence. The quasi-judicial tribunal is not required to advise the party either about its rights or what it should do or omit to do. Obligation to lead evidence to establish an allegation made by a party is on the party making the allegation. The test would be who would fail if no evidence is led. It must seek an opportunity to lead evidence and lead evidence. A contention to substantiate which evidence is necessary has to be pleaded. If there is no pleading raising a contention there is no question of substantiating such a non-existing contention by evidence. It is well settled that allegation which is not pleaded, even if there is evidence in support of it, cannot be examined because the other side has no notice of it and if entertained it would tantamount to granting an unfair advantage to the first mentioned party. We are not unmindful of the fact that pleadings before such bodies have not to be read strictly, but it is equally true that the pleadings must be such as to give sufficient notice to the other party of the case it is called upon to meet. This view expressed in Tin Printers (Pvt.) Ltd. v. Industrial Tribunal (1967) 2 Lab LJ 677 at p. 680 (Punj), commends to us. The rules of fair play demand that where a party seeks to establish a contention which if proved would be sufficient to deny relief to the opposite side, such a contention has to be specifically pleaded and then proved. But if there is no pleading there is no question of proving something which is not pleaded. This is very elementary." "32. Can it for a moment be suggested that this elementary principle does not inform industrial adjudication? But if there is no pleading there is no question of proving something which is not pleaded. This is very elementary." "32. Can it for a moment be suggested that this elementary principle does not inform industrial adjudication? The answer must be an emphatic `no'." "33. The employer terminates the service of a workman. That termination raises an industrial dispute either by way of an application under Section 33 of the Act by the employer or by way of a reference by the appropriate Government under Section 10. If an application is made by the employer as it is required to be made in the prescribed form all facts are required to be pleaded." 7. The submission made by the learned counsel for the appellant that the courts of law should ignore the basic tenets of law whenever it comes across with the welfare legislation, is not thus correct. In the light of the above position of law the Tribunal has correctly observed that there was a categorical pleading by the appellant in his claim petition in para 22 that appellant was driving the motor cycle along with Ravindra without registration number of the vehicle. The appellant was driving the motor vehicle going from Shirala towards Pusda. Thereafter he did not amend his pleadings if at all there was any mistake on his part in describing the incident. F.I.R. was also filed at Ex.33. In other words, the appellant had taken a stand in the claim petition that he was driving the vehicle whereas F.I.R. shows that the appellant was pillion rider. The Tribunal thus found that the appellant could not be allowed to fly off at a tangent to his pleadings because the other side had already filed pleadings and closed the case. The Tribunal has also found that the new stand taken by the appellant that he was not driving the vehicle but was a pillion rider and therefore his earlier stand was incorrect, could not be accepted without any corroborative or satisfactory evidence in support of such statement. In my view, though the legislation is welfare in nature, that does not mean that the courts of law can ignore the very jurisprudence of pleadings and proof. In my view, though the legislation is welfare in nature, that does not mean that the courts of law can ignore the very jurisprudence of pleadings and proof. The Tribunal thus did not commit any error in holding that there was no technical error as such, but the error went to the root of the matter and the opponent could not be allowed to be gravely prejudiced by allowing the appellant to change his stand in the matter of pleadings and proof. That is the reason why the Tribunal did not accept the submission. 8. For the above reasons, I answer the points accordingly. The decision relied on by the learned counsel for the appellant is of no assistance on the facts discussed by me in the instant case. There is no merit in this appeal. Hence, the following order. ORDER (i) F.A. No.515 of 2011 is dismissed. (ii) There shall be no order as to costs.