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2014 DIGILAW 306 (JK)

Mohammad Jamal Bhat v. J&K Bank Ltd.

2014-07-15

MUZAFFAR HUSSAIN ATTAR

body2014
JUDGMENT Muzaffar Hussain Attar, J. 1. The issues involved in these Appeals being similar and the Claim Petitions, having been decided by a common order, same are taken up for disposal together. 2. The Motor Accidents Claims Tribunal, Srinagar, (for short MACT), has dismissed 11 Claim Petitions by one common order dated 29-08- 2013, holding them not maintainable. 3. The facts relevant for consideration of these Appeals are briefly summarized as under: An Ambassador Car bearing No. JK01B-9009, belonging to J&K Bank Ltd. was, allegedly taken out of the custody and control of its driver on 10-08-2000 by unknown persons. Almost two hours thereafter, the vehicle was parked near the wall of State Bank of India, Srinagar where it exploded resulting in death of many persons, whose legal representatives have filed the Claim Petitions as also these Appeals. F.I.R No. 85/2000 u/s 302, 307 and 427 IPC and section 3 of Prevention and Suppression of Sabotage Act was registered at Police Station, Kothi Bagh. 4. In the Claim Petitions, the MACT, framed as many as 07 issues. Issue No.04, which was taken as preliminary legal issue and on the basis of which, the Claim Petitions were dismissed, is taken note of : 4. Whether the death of the deceased is not due to use of the vehicle due to its rash and negligent driving being the paramount consideration while claiming compensation under the Act before this Tribunal and for this reason the petition is not maintainable. 5. In the Appeals it is pleaded that the issue No.4 could not be taken as preliminary issue, in as much as, it was mixed question of law and fact. Learned counsel for the Appellants referred to Order 14 rule 2(2) of the Code of Civil Procedure (CPC) and submitted that in the facts of these cases, issue No.4 has been wrongly treated as preliminary issue when decision on the said issue could be rendered only after recording of evidence. 6. Learned counsel for the respondents, more particularly, learned counsel for the Insurance Company, submitted that the issue No.4, being exclusively a legal issue and its decision being not dependant for recording of any evidence, it has rightly been treated as preliminary issue and rightly decided by the MACT. 06/ In order to appreciate the controversy raised in these Appeals, Rule 2 of Order XVI is taken note of : 2. 06/ In order to appreciate the controversy raised in these Appeals, Rule 2 of Order XVI is taken note of : 2. Court to pronounce judgement on all issues. (1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of sub-rule (2), pronounce judgement on all issues. (2) Where issues both of law and of fact arise in the same Suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to : (a) The jurisdiction of the Court, or (b) A bar to the Suit, created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the Suit in accordance with the decision on that issue. 7. Be that as it may, the issue No.4, which appears to have not been framed properly in the form it exists, in the facts and circumstances of this case, cannot be said to be a preliminary issue of the nature, which would affect the jurisdiction of the Court or would constitute a bar to the Suit created by any law for the time being in force. The issue No.4 is an issue of both law and fact and would require to be decided along with all other issues. 8. Negligence of the driver, in all circumstances, is not related only to the driving of the vehicle. The driver of a vehicle is its custodian as the vehicle is entrusted to him by the owner. He (driver) has to be vigilant and cautious, in all circumstances. All these aspects are to be considered and dealt with only after evidence is recorded before the MACT. 9. For the above stated reasons, these Appeals are allowed and the order dated 29-08-2013 is set aside. All the Claim Petitions are remitted back to the Motor Accidents Claims Tribunal, who will deal with them in accordance with law and in the light of observations made in this order. The parties through their learned counsel to appear before the MACT on 18th August, 2014. 10. All the Claim Petitions are remitted back to the Motor Accidents Claims Tribunal, who will deal with them in accordance with law and in the light of observations made in this order. The parties through their learned counsel to appear before the MACT on 18th August, 2014. 10. Before parting with, it is made clear that any expression of opinion on the merit of the Appeals in this order shall not affect the trial of the Claim Petitions, which shall be decided on their own merit in accordance with law. 11. Disposed of along with connected IAs.