Mohammad Salim Ansari and Others vs Smt. Bitan Devi and Others

S.K. Katriar, J.—Heard Mr. Narendra Kumar for the Appellants, and Mr. Ajay Kumar for Respondent No. 2. The claimants are the Appellants against the judgment of dismissal. This appeal is directed against the judgment dated 29.4.94, passed by learned 4th Additional Claims Tribunal, Rohtas at Sasaram, in M.V. Claim Case No. 3/2 of 1992/98 (Mohammad Salim Ansari v. Smt. Bitan Rai), whereby he has dismissed the claim application on the ground that the claimants have not been able to prove that the offending vehicle was being driven in a rash and negligent manner. In view of this finding, he has declined to examine the other issues and has refused to grant any amount of compensation to the claimants. Hence this appeal at the instance of the claimants.

Learned Counsel for the claimants (Appellants) is right in submitting that the learned Claim Tribunal has misdirected himself in deciding the question. He has applied the unlamented law which was to the effect that the claimants were required to prove that the vehicle was being driven in a rash and negligent manner. The law before the amendment to the said effect was discussed by the Supreme Court in its judgments reported in Minu B. Mehta and Another Vs. Balkrishna Ramchandra Nayan and Another, and in Pushpabai Purshottam Udeshi and Others Vs. Ranjit Ginning and Pressing Co. (P) Ltd. and Another, The position in law has fundamentally changed after insertion of the present Section 163A in the Motor vehicle Act, brought about by Act 54 of 1994, with effect from 14.11.1994. This provision of law has been considered by the Supreme Court in its judgment reported in Smt. Kaushnuma Begum and Others Vs. The New India Assurance Co. Ltd. and Others, wherein it has been held that the claimant is now hot required to prove rash and negligent driving on the part of the driver of the vehicle. The provisions of Section 163A will also apply to those of the cases where the occurrence had taken place prior to the date of amendment, namely, 14.11.1994. In that view of the matter, I am left with no option but to set aside the impugned judgment and remit the matter back to the trial court.

I feel distressed to observe that the learned Claims Tribunal refused to examine the other issues which he has done to spare himself of the duty of examining the whole matter necessitating remand of this matter. Law is well settled that the Superior Court should not examine and express itself on issues which were not adjudicated by the Court below, and remand in such a situation is the best course. I have no doubt in my mind that the learned Claims Tribunal in the present case was duty bound to examine all the issues, when the award is appeasable in terms of Section 173 of the Act. Is he required to be reminded that it is the duty of this Court u/s 173, being the last court of facts, to examine and re-appraise the evidence and come to, its own conclusions unmindful of the findings, of the trial court. Had he examined the remaining issues before him, this Court Would not have been constrained to remit the matter. Let this Court''s displeasure be conveyed to the learned Presiding Officer who delivered the impugned judgment.

This appeal is 1 allowed, the impugned judgment is set aside, and the matter is remitted back for fresh judgment in accordance with law. Let the Claim Case be disposed of most expeditiously.