Kailash Devi and Others vs Umer Deen and Others

Jawahar Lai Gupta, J.—One accident. Two deaths. Six Claim Petitions. All rejected. Now these five appeals. The facts lie in a narrow compass. These may be briefly noticed.

On April 1, 1990, a Maruti Car. No. HYM-4204 which was proceedings from Samalkha to Delhi was hit by Truck No. HNA-4655 which was coming from Delhi. The accident occurred at about 4 PM near Ganaur. Two of the occupants of the car viz. Sushil Kumar and Smt. Sarti Devi, aged 47 and 72 years respectively died at the spot. The other occupants received injuries. Six Claim Petitions were filed. It was inter alia alleged that the truck was being driven rashly and negligently by timer Deen. Since the accident had occurred on account of his negligence, the claimants were entitled to be compensated. The Motor Accident Claims Tribunal framed issues in all the cases separately. In the Claim Petition filed by Smt. Kailash Devi, whose husband Sushil Kumar had died in the accident, the following issues had been framed:-

Whether Sushil Kumar died as a result of rash or negligent driving of the truck in question by respondent No. 1 as alleged? OPP

Whether the petitioners are entitled to compensation? If so, to what amount and from whom? OPP.

Whether the petition is bad for non-joinder of necessary parties as alleged ? If so, to what effect? OPR.

Relief.

On Issue No. 1, the Tribunal held that the accident "did not take place as a result of rash or negligent driving of the truck by its driver Umer Deen". On Issue No. 2, it has held that "the petitioners could get compensation only from the driver, owner or insurer of the Maruti Car involved in the accident and under no circumstances they are entitled to any compensation from the driver, owner or insurer of the truck." Regarding Issue Nd.3, the Tribunal Observed, that "the accident took place on account of carelessness and negligence of the car driver, but since driver, owner and insurer of that car have not been impleaded as respondents and no relief has been claimed against them, individually or jointly, so the petitions are certainly bad on account of non-joinder of such parties". With these findings, it was held that the claimants were not entitled to the payment of any compensation.

Aggrieved by the award of the Tribunal, the claimants have filed the present five appeals.

Mr. Lalit Mohan Suri, learned counsel for the claimants has contended that the findings recorded by the Tribunal are totally contrary to the pleadingo of the parties and the evidence on the record. In particular, it has been submitted that the Tribunal has erred in holding that the accident had not occurred on account of the rash and negligent driving by the respondent-truck driver. Similarly, even the findings on other issues have been challenged.

The claim made on behalf of the appellants has been controverted by the learned counsel for the respondents.

The basic issues before the Court was as to whether or not two occupants had died on account of the rash and negligent driving of the truck. The Tribunal has come to the conclusion against the claimants primarily on the ground that Brijender Kumar who was driving the car did not produce his driving licence in the Court. Secondly, it has also been observed by the Court that the site plan and the photographs of the two vehicles which may have been got prepared by the Investigating Officer in the criminal case have not been produced. In fact, the Court has observed that the evidence "has been withheld by the petitioners." The Court has further observed that these "photographs and others documents were quite necessary to prove as to which part of the car collided against which part of the truck and in this way, those documents were to be very helpful in concluding whether accident took place on account of carelessness and negligence of the truck driver."

Brijender Kumar had appeared as PW-10. He had categorically stated that he had a valid driving licence. It does not appear to have been even suggested to him that he did not have a driving licence. An advance inference had been drawn against him only on the ground that the licence was not produced in the Court at any stage. Mr. Suri, learned counsel for the claimants, very vehemently contends that in the circumstances of the case and to satisfy its conscience, the Court could have sent for the file of the case which was pending before the Judicial Magistrate.

Leaving aside the technicalities of the case, justice demands that the parties should be given a chance to produce the relevant evidence so that the truth can be ascertained. In order to find out the truth, it appears essential that the parties should be given a chance to adduce evidence with regard to their respective claims. In particular, the record relating to the accident and the driving licence is very relevant. Its production was essential for a just and fair decision of the claim petition. In the circumstances of the case, I am satisfied that denial of the opportunity to adduce the evidence would result in failure of justice.

Keeping in view the circumstances of the case, the judgment under appeal is set aside. The case is remitted to the Tribunal. It would give two opportunities to each of the parties to adduce such evidence as they may like to produce and re-decide the matter. In the circumstances, there will be no order as to costs.

The parties through their counsel are directed to appear before the Tribunal on February 22, 1999. The records of the case shall be forwarded to the Tribunal immediately.