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2015 DIGILAW 751 (GAU)

Lalengvara v. Laldawangliana Sailo and Anr.

2015-06-12

L.S.JAMIR

body2015
1. Heard Mr. Zochhuana learned counsel for the appellant as well as Mr. S. Pradhan for the respondent No. 1 and Mr. Lalfakawma for the respondent No. 2. 2. The present appeal filed under section 173 of the MV Act, 1988 is directed against the judgment and award dated 27.2.2012, passed by the learned MACT, Aizawl, Mizoram in MACT Case No. 56 of 2007. 3. The brief facts, leading to filing of this appeal is that on 31.7.2006, a motor bike bearing Regd. No. MZ-01/C-9180, driven by the respondent No1/claimant and one Taxi bearing Regd. No. MZ-01/C-5415 belonging to the appellant/opposite party No. 1 collided with each other. As a result, the respondent No.1/claimant sustained permanent disablement of 20%. The respondent No.1/claimant, therefore, filed claim petition under section 166 of the M.V Act, 1988 being MACT Case No. 56/2007 before the MACT Aizawl, Mizoram. 4. The learned MACT, Aizawl, Mizoram by Judgment and Award dated 27.2.2012 disposed of the said claim petition by directing the appellant/ opposite part No.1 to pay a sum of Rs. 1,41,819 along with interest to the respondent No. 1/claimant. Being aggrieved, this present appeal has been filed by the appellant/opposite part No.1. 5. The said judgment and award dated 27.2.2012 has been assailed on amongst others, the following grounds : (i) the claimant/respondent No.1 has failed to discharge the burden to establish that the accident took place due to negligence/default on the part of the driver or the owner of the vehicle. (ii) The claimant/respondent No.1 failed to prove his income. (iii) Though the alleged accident took place on 31.7.2006, the claimant/ respondent No.1 reported the matter to the police only on 9.1.2007 which is after a lapse of more than five months. Moreover, the claimant/ respondent No. 1 was admitted in the hospital only on 21.11.2006 and therefore, it cannot be establish that the injuries sustained by him were as a result of the accident in question. (iv) The claimant/respondent No.1 has failed to prove his permanent disablement. However, the learned Tribunal without any evidence on records has accepted the Permanent Disablement Certificate. (v) The learned Tribunal did not frame the issue as regard contributory negligence and thereby caused injustice to the appellant since the appellant did not lead his evidence to prove that there is no contributory negligence on his part. However, the learned Tribunal without any evidence on records has accepted the Permanent Disablement Certificate. (v) The learned Tribunal did not frame the issue as regard contributory negligence and thereby caused injustice to the appellant since the appellant did not lead his evidence to prove that there is no contributory negligence on his part. (vi) That as the Insurer/respondent No.2 did not take the defence of breach of policy and did not even lead evidence so as to discharge it liability to prove that there was breach of policy condition, the question of casting liability upon the appellant does not arise. 6. From the Judgment and Award dated 27.2.2012 it appears that only the following 3 issues were framed : (i) Whether the claim is maintainable or not? (ii) Whether there was any fault on the part of the driver or the owner of the vehicle involved in the case? (iii) Whether the claimant is entitled to compensation and, if so, who is liable to pay and to what extent? 7. The Apex Court in Makhan Lai Bangal v. Manas Bhunta and Ors., (2001) 2 SCC 652 has held that stage of framing the issues is an important one inasmuch as on that day the scope of the trial is determined by laying the path on which the trial shall proceed excluding diversions and departure therefrom. The correct decision of the dispute largely depend on correct framing of issues, correctly determining the real points in controversy which needs to be decided. It is further held that the parties and their counsels are bound to assist the court in the process of framing issues. Duty of the counsel does not belittle the primary obligation cast on the court. It is for the Presiding Judge to exert himself so as to frame sufficiently expressive issues. An omission to frame proper issues may be a ground for remanding the case for retrial subject to prejudice having been shown to have resulted by the omission. 8. The duty of raising issues always rest on the court and it is not permissible to presume that a fact which ought to have been put on issue, but which was not put up and the burden to prove which was on one part, is admitted by other party because it was not put in the issues. 8. The duty of raising issues always rest on the court and it is not permissible to presume that a fact which ought to have been put on issue, but which was not put up and the burden to prove which was on one part, is admitted by other party because it was not put in the issues. No doubt, it is not the duty of the Tribunal to allow the party to fill up a lacuna but at the same time it is also the duty of the Tribunal to do justice to the parties by giving opportunity of putting up their case. 9. I have perused the judgment and award in question. The learned Tribunal has concluded that the claimant has suffered 20% permanent disability. However, no issue in that regard has been framed. The learned Tribunal has arrived at a finding that there was contributory negligence though no issue as to whether there was contributory negligence was framed. Moreover, the learned Tribunal has arrived at a finding that there was breach of condition of the policy of insurance though no issue was framed. The findings, more particularly, on the breach of policy condition and on contributory negligence, by the learned Tribunal without framing issues, in my considered opinion has definitely caused prejudice to the appellant inasmuch as, the appellant did not lead any evidence to prove that there was no breach of policy condition nor was there contributory negligence, on his part. 10. In the absence of framing proper issues there could not be proper adjudication of the case of the parties in the interest of justice and equity. Taking into consideration the matter in its entirety and in the peculiar facts and circumstances of the present case, this court is of the considered opinion that the learned Tribunal should reconsider the matter afresh by framing the following additional issues : (a) Whether there was contributory negligence on the part of the appellant and the driver of the Taxi bearing Regd. No. MZ-01 /C-5415, in causing the accident? (b) Whether the driver of the Taxi bearing Regd. No. MZ-01/C-5415 belonging to the appellant/opposite party No.l was having a valid and effective Driving License at the time of the accident? (c) Whether there was breach of policy conditions of insurance? 11. No. MZ-01 /C-5415, in causing the accident? (b) Whether the driver of the Taxi bearing Regd. No. MZ-01/C-5415 belonging to the appellant/opposite party No.l was having a valid and effective Driving License at the time of the accident? (c) Whether there was breach of policy conditions of insurance? 11. In the result, the appeal is allowed and the impugned judgment and award dated 27.2.2012 passed in MACT Case No. 56/2007 is set aside and quashed. The learned Tribunal shall consider the matter afresh after framing additional issues as indicated herein above. Needless to say that both the parties shall be at liberty to take appropriate pleas, if necessary, regarding the new issues formulated in this judgment and order and shall also be allowed to adduce evidence. 12. Send down the LCR's forthwith.