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Smt. Shivsinha and anr. Vs. Dashrath and ors. - Court Judgment

LegalCrystal Citation
SubjectInsurance;Motor Vehicles
CourtMadhya Pradesh High Court
Decided On
Judge
Reported inII(1984)ACC258
AppellantSmt. Shivsinha and anr.
RespondentDashrath and ors.
Excerpt:
.....reduced to period undergone by appellant considering mental agony suffered by him - 4. the claim tribunal dismissed the claim holding that the claimants failed to prove negligence of the bus driver. 5. the first point raised on behalf of the appellants in that the claim tribunal failed to afford them reasonable opportunity to prove their case. 6. after giving our anxious consideration over the arguments advanced and perusing the record, we are clearly of the opinion that the claim was dismissed without affording proper opportunity to the claimants. the rejection of the claimants, prayer to examine the witness has resulted in failure of justice. being devoid of any source of income, their difficulties even for one attendance from bihar to the court at jabalpur, can well be..........opposing the claim. similar stand was taken by respondent no. 3--insurance company.4. the claim tribunal dismissed the claim holding that the claimants failed to prove negligence of the bus driver. it was also held that the scooter dashed against the bus it was stationary. in the event of driver of the bus being held negligent, the compensation payable to the dependante would have been rs. 9,000/- with interest at 6% and costs. hence, the claimants filed the present appeal against the dismissal of their claim.5. the first point raised on behalf of the appellants in that the claim tribunal failed to afford them reasonable opportunity to prove their case. it was urged that they wanted to examine one thomas, who was riding on the pillion seat of the scooter driven by the deceased,.....
Judgment:

P.C. Pathak, J.

1. This appeal, Under Section 110-D of the Motor Vehicles Act, 1939, is directed against an award dated 30-9-1980, passed by Shri D.R. Pundlik, Motor Accident Claims Tribunal, Jabalpur, in Motor Vehicle Case No. 20 of 1976, whereby the claim for compensation filed by the appellants-claimants has been dismissed.

2. The claimants, namely, the widow, aged 20 years and minor posthumous daughter, aged 5 months of deceased Rajendra Kumar, lodged a claim of Rs. 2,44,000/- against the present respondents, on the allegation that on the material date and time, the deceased was driving a scooter. The bus coming from the opposite direction dashed against the scooter. He died in the hospital as a result of head injuries in the same night.

3. The respondents No. 1 and 2 filed their separate but identical written statements opposing the claim. Similar stand was taken by respondent No. 3--Insurance Company.

4. The claim Tribunal dismissed the claim holding that the claimants failed to prove negligence of the bus driver. It was also held that the scooter dashed against the bus it was stationary. In the event of driver of the bus being held negligent, the compensation payable to the dependante would have been Rs. 9,000/- with interest at 6% and costs. Hence, the claimants filed the present appeal against the dismissal of their claim.

5. The first point raised on behalf of the appellants in that the claim Tribunal failed to afford them reasonable opportunity to prove their case. It was urged that they wanted to examine one Thomas, who was riding on the pillion seat of the scooter driven by the deceased, at the time of accident. The claimants submitted that statement of Thomas was recorded by the Maim Tribunal during preliminary enquiry before issuance of notices to the non-applicants. Said Thomas was an employee of the respondent No. 2, the owner of the vehicle. He was dismissed, whereafter he left Jabalpur in search of another job. On account of this, the appeallants could not secure attendance of Thomas as a witness, even after repeated efforts. Frustrated by the absence of Thomas, on 20-6-1980, the claimants submitted an application to examine one Jagdish Pater said to be an eye-witness of the accident. The respondents opposed this application and the Tribunal, by its order 2-7-1980, rejected the claimants' prayer to examine Jagdish Patel on the ground of delay. The Tribunal thereafter directed the respondents to summon their witnesses for next date, i.e., 26-7-1980. The respondents examined only two of their witnesses and prayed for further time to produce the third witness by the next date. The respondents examined their third witness on 11-9-1980 and closed their case. After hearing arguments on 18-9-1980, the Tribunal passed the award on 22-9-1980. The appellants, therefore, submitted that when the Tribunal adjourned the case for filing reply to the application and later for producing the respondents' witnesses, grant of permission to the appellants to examine one witness, as the last opportunity, would not have prejudiced the respondents at all.

6. After giving our anxious consideration over the arguments advanced and perusing the record, we are clearly of the opinion that the claim was dismissed without affording proper opportunity to the claimants. It is not disputed before us that Thomas was an employee of the respondent--University and that his services were dispensed with. The case was adjourned on various dates for examination of Thomas and finally, by order dated 16-4-1980, the Tribunal refused to grant any further time to the claimants to produce attendance of said Thomas, and closed their case. Before the respondents could summon their witnesses, the claimants sought permission to examine one Jagdish Patel as eye-witness of the accident. On vehement opposition of the respondents, this application was rejected by order dated 2-7-1980. on 20-6-1980, when the order was passed, the respondents had not entered into their defence. The case was adjourned, at least, twice before the respondents could produce and start examing their witnesses. No prejudice, under the circumstances, would have caused to the respondents, if the Claims Tribunal would have permitted them to examine Jagdish Patel on any date before the respondents examined their witnesses. The argument of the respondents that the application was belated and the witness sought to be examined was got up even before the person has been examined as awitness, is premature and cannot be entertained, even before the person has been examined as a witness. The respondents will have ample opportunity to advance their criticism even after the witness has been examined. The rejection of the claimants, prayer to examine the witness has resulted in failure of justice. It cannot be lost sight of the fact that the claimants are: widow aged about 20 years, and a minor posthumous daughter aged 5 months and after the accident, have shifted their residence in district Samastipur of Bihar. Apparently, they have none to assist them. Being devoid of any source of income, their difficulties even for one attendance from Bihar to the Court at Jabalpur, can well be visualised.

7. We, therefore, set aside the award passed by the Claims Tribunal, and direct that the Tribunal should now afford afresh opportunity to the claimants to produce such documentary and/or oral evidence in proof of their claim as they deem proper. The respondents will also be free to lead evidence in rebuttal. After considering the evidence already on record and such further evidence as might be led by the parties, the Tribunal shall decide the claims afresh. The costs of this Court shall abide the result. The parties are directed to appear before the Claims Tribunal, Jabalpur on 23-7-1984. No fresh notices to the parties will be necessary unless the Tribunal, in the circumstances of the case, decides otherwise. The original record of the Court below be sent back immediately.


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