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2012 DIGILAW 632 (RAJ)

Ramesh Kumar Jain v. Master Rajan

2012-03-13

MAHESH BHAGWATI

body2012
BHAGWATI, J.—Challenge in this appeal is to the judgment dated 21st December, 2006, whereby the Motor Accident Claims Tribunal, Jaipur passed an award of Rs. 52,000/- in favour of Rajan through his mother Smt. Sugan Kanwar and against the appellant Ramesh Kumar. 2. Having heard the learned counsel for the parties and carefully perused the impugned judgment and the order sheets recorded by the Tribunal from time to time, it is revealed that albeit the Tribunal decreed an amount of Rs. 52,000/- in favour of Smt. Sugan Kanwar and against the appellant Ramesh Kumar, yet held the Insurance Company to make the payment of the amount under the award and thereafter empowered the Insurance Company to recover or realize the said amount from the appellant Ramesh Kumar Jain. 3. Learned counsel for the appellant has assailed the judgment of the Tribunal only on one ground that the claim petition was decided without affording an opportunity of being heard to the appellant. Learned counsel took me through the order sheets of 21st December, 2006 as also the relevant portion of the impugned judgment and contended that on the one hand the presence of the counsel for the appellant was recorded on 21st December, 2006 in the order sheet and on the other hand, on the statement of HKG Motwani, it was recorded that none was present on behalf of the appellant non claimant no. 1. He also submitted that albeit the statement of HKG Motwani, NAW-1 was recorded on 21st December, 2006, but there is not even a whisper of this fact in the order sheet recorded by the Tribunal on 21st December, 2006. Both, the order sheet and the fact of the absence of the counsel for the appellant non claimant no.1 recorded in the statement of Motwani are contradictory to each other, yet neither the Tribunal passed the order to proceed ex-part against the appellant nor afforded an opportunity of hearing to him and in his absence sans assigning any cogent reason, decided the claim petition arbitrarily. Hence, the impugned judgment is liable to be set-aside and the appeal deserves to be allowed. 4. Hence, the impugned judgment is liable to be set-aside and the appeal deserves to be allowed. 4. Learned counsel appearing for the Insurance company submits that in case the matter is remitted to the Tribunal and the appellant is granted an opportunity to lead the evidence in support of his case, then the Insurance Company should also be equally given an opportunity to defend its case. 5. Having reflected over the submissions made at the bar and carefully scanned the order sheet of 21st December 2006 and the statement of MAW-1 HKG Motwani, it is revealed that as per the affidavit of witness NAW-1 HKG Motwani, this affidavit was filed by the witness on 21.12.2006. He was subjected to cross-examination also on the same day. Learned counsel for the claimant cross-examined the witness, but the absence of the counsel for the appellant – non claimant no. 1 was recorded as none was present on his behalf, but the fact of filing the affidavit of HKG Motwani NAW-1 etc. does not find any place in the order sheet of that day. On the contrary, the order sheet recorded by the Tribunal reflects that the counsel for the party was present, but there is not even a whisper in the order sheet that any affidavit was ever filed by any witness of the non claimants or any witness was cross-examined by the counsel for the claimant. The text of the order sheet and the fact of filing the affidavit of HKG Motwani on 21st December, 2006 and his cross examination are contradictory per-se. Be that as it may, one thing is tangible that the counsel for the non claimant no.1 appellant was not afforded any opportunity of hearing prior to deciding the instant claim petition. Neither he was given an opportunity to cross-examine the witness nor in his absence the ex-parte proceedings were drawn by the Tribunal. 6. In view of the afore-stated facts and circumstances of the case, it is found that the Tribunal arbitrarily adjudicated the claim petition in haste and cursorily drew the order sheet without recording the fact of filing of the affidavit of witness HKG Motwani. The order sheet dated 21.12.2006 does not suggest that any witness on behalf of non claimant was ever examined in the Court. 7. The order sheet dated 21.12.2006 does not suggest that any witness on behalf of non claimant was ever examined in the Court. 7. In view of above, I deem just and proper to remit the case directing the Tribunal to afford ample opportunity to the learned counsel for the appellant non claimant no.1 to lead evidence in his defence as also to the respondent no.2 Insurance Company to lead evidence in defence and in rebuttal. 8. For the reasons stated above, the appeal succeeds. The impugned judgment dated 21st December, 2006 is set-aside. The case is remitted to the MACT, Jaipur with the direction that the Tribunal shall afford ample opportunity to the appellant non claimant no.1 to lead evidence in his defence and also grant an opportunity to cross-examine the witness NAW-1 HKG Motwani. The Tribunal shall also grant an opportunity to respondent no.2 Insurance Company to lead evidence in the interest of justice and thereafter decide the claim petition afresh in accordance with law. 9. Learned counsel for the parties are directed to appear before the Tribunal on 26th March, 2012. 10. As the matter is related to the accident of the year 2004, the Tribunal is further directed to decide the claim petition within a period of four months positively from the date of receipt of the copy of this order. 11. The record of the Tribunal be sent back immediately.