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2014 DIGILAW 168 (HP)

Tulsi Ram Thakur v. Mohinder Kaur

2014-03-07

MANSOOR AHMAD MIR

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JUDGMENT Mansoor Ahmad Mir, ACJ (Oral): These two appeals along with cross objection No. 136 of 2007, filed in FAO No. 216 of 2006, are arising out of the same accident and the issue involved is also the same, hence taken up together for disposal. 2.The facts of the case have been set out fairly fully in the impugned judgments and awards of the Tribunal below and for the purposes of these appeals, it is sufficient to set out the facts in its broad essentials. 3. Appellant-owner of the offending vehicle in both the appeals has questioned the impugned awards dated 1.4.2006, so far as these relate to recovery rights given to the insurer-respondent No. 6 herein, on the grounds taken into the memo of appeals. 4. It appears that Tulsi Ram, appellant-owner of the offending vehicle was not arrayed as party in the memo of claim petitions. On the motion laid by respondents No. 1 to 3 herein, he was arrayed as party respondent in the claim petitions on 22nd August, 2003. Issues were accordingly framed on 9.3.2005 in both the claim petitions. The onus to prove all the issues was on the claimants and respondent No. 3. 5. The claimants have led evidence, was closed and thereafter respondent No. 3 has also led evidence and the evidence of respondent No. 3 was closed vide order dated 20.3.2006. The minutes of the Tribunal file do disclose that no chance was given to respondent No. 4- appellant herein to lead evidence in rebuttal, led by the claimants or respondent No. 3, and in support of the averments contained in para 24 of the reply/objections filed by him, before the Tribunal below. Having said so, the appellant has been condemned unheard. 6. In the given circumstances, I deem it proper to remand the case only for the purpose of providing two opportunities to the appellant herein to lead evidence in rebuttal and in support of the pleadings contained in para 24 of the reply/objections and it is for the Tribunal to determine whether driver, namely, Deep Ram @ Kala was driving the offending vehicle at the relevant point of time or Sh. Manmohan Singh, particulars of whom have been given in para 24 of the reply/objections, filed to the claim petitions. Manmohan Singh, particulars of whom have been given in para 24 of the reply/objections, filed to the claim petitions. It is further for the Tribunal to determine whether owner, after leading evidence has committed any willful breach in terms of the provisions of Sections 147 and 149 of the Motor Vehicles Act and whether right of recovery is to be granted to the insurer National insurance Company/respondent No. 6 herein. 7.As a consequence, both the appeals are remanded to the Tribunal below on this limited issue. The Tribunal is directed to conclude the trial of both the cases within three months from today and pass appropriate orders. 8.The impugned awards, so far as these relate to holding driver Deep Ram @ Kala, has caused the accident, and the right of recovery, are set aside and shall remain subject to the outcome of the findings returned by the Tribunal, in terms of the time frame already mentioned above. It is made clear that the recovery proceedings, already drawn by the insurance Company, as stated by the learned counsel for the insurer, shall remain under eclipse till the decision of the Tribunal. 9. Parties are directed to cause appearance before the Tribunal, Bilaspur, HP on 31st March, 2014. Both the appeals along with cross-objections are disposed of accordingly. 10. Send down the records forthwith, along with copy of this judgment.