Naresh Kumar vs Sonu and Others

Fateh Deep Singh, J.—In this second round of litigation, claimant-appellant has challenged the Award of Motor Accident Claims Tribunal, Gurgaon dated 15.03.2010 passed in terms of Section 166 of the Motor Vehicles-Act, 1988 (in short "the Act") whereby he has been awarded a sum of Rs. 4,29,000 as compensation on account of the accidental injuries and out of which Rs. 1,99,520 have been ordered to be paid to Dr. Subhash Khanna PW-5. Heard Mr. S.K. Tripathi, Advocate appearing on behalf of Ms. Sharmila Sharma, Advocate for the appellant as well as Mr. Vipul Aggarwal, Advocate representing respondent No. 2A.

The case of the claimant which is not controverted by the owner-respondent, that it was on 04.10.2008, the minor claimant Naresh Kumar was going with his aunt Maya Devi in a car make Maruti Alto bearing registration No. HR26-AH-8202 being driven by Sonu respondent and which vehicle is stated to be owned by Harkesh Singh Chauhan and Satyavir respondents and insured with M/s. Reliance General Insurance Company Ltd. at the time of accident.

The unison arguments of both the sides that the findings qua issue No. 1 that the accident took place due to rash and negligent driving of the driver Sonu has been laid to rest as the same has never been challenged by any of the respondents. That leads to the manner of determination and quantum of the compensation as has been arrived at by the learned Court below. What baffles the Court is that in the absence of any claim/counter-claim of claimant''s witness Dr. Subhash Khanna from Healers Hospital, Gurgaon, who has been examined as PW-5, who had initially treated the injured, and only a passing remark has been made by the witness that the claimant has not paid his balance amount of Rs. 1,99,520/-. Purely on this unsubstantiated stand of this PW-5 a comprehensive adjudication, that too in the absence of any issue, this amount has been ordered to be reimbursed to the said witness.

Neither Mr. S.K. Tripathi, Advocate representing the appellant much less Mr. Vipul Aggarwal, Advocate for respondent No. 2A could show under what provisions such an Award can be passed in favour of the witness, that too in a summary proceedings pertaining to the pure determination of compensation to an injured. To the mind of this Court, the same has not even been documentarily substantiated by any record much less by any evidence. Rather such a recourse which is contrary to all judicial principles, needs to be deprecated and set aside being beyond the powers of the Tribunal in terms of Sections 168 & 169 of the Act and a pure misuse of the process of the Court.

The learned Tribunal has laid much stress in adjudicating the inter-se relationship of the claimant with respondent-driver which is more based on assumptions and presumptions unsubstantiated on the record and even the relationship of respondent Satyavir with the claimant has also been sough to be adjudicated without there being any such legal necessity. Furthermore, the Tribunal has ventured into and to adjudicate that the vehicle was being driven by the driver after consumption of liquor in the absence of any such stand and how it has been held that there was gross violation of the terms and conditions of the insurance policy holding out that the insurer was not liable to indemnify the Award and that it was of the driver and the owner. The Award is totally silent regarding the registration certificate which has not been proved on the record or is exhibited and in the absence of any proof the Tribunal''s findings are too preposterous to hold it so. As to who was the registered owner of this vehicle out of the two alleged owners and how the other is responsible or not has not been discussed and in the absence of any evidence is an infirm finding.

In the light of the submissions of appellant''s counsel, learned Tribunal has not taken into consideration any disability claimed by the claimant. How, the Tribunal has assessed compensation is anybody''s guess. Even settled position of law laid down in '' R.D. Hattangadi Vs. M/s. Pest Control (India) Pvt. Ltd. and Others, has never been taken note of or the principles enshrined in such cases of injury in evaluating the compensation so awarded by the Tribunal and which has impregnated the impugned Award with abundant premises and its ultimate legal impact also is too perverse and uncalled for and shakes the judicial conscience. Apparently, during trial of the matter the Presiding Officers have remained mute spectators to the ongoing before them and failed to record evidence unaware that the Court was dealing with the claim of a minor victim which was essential and thus, has obliterated the purpose of dispensation of justice. The findings are totally alien to the evidence proved on record. Even'' the findings whether the victim was a gratuitous passenger or a paid passenger has remained undetermined, are matters which seriously undermine the judicial process of adjudication and causing immense prejudice to the case of both sides necessitating intervention by this Court by way of acceptance of the instant appeal.

Though no definition of Appeal has been given however, having regard to the exercise of powers of Appeal under Section 173 of the Act the appellate Court is vested with the jurisdiction to set aside, revise or remand an Award passed by a Tribunal. The right of Appeal is one of entering a superior Court and invoke its aid and interposition to redress the error of the Court below. Here in this case, instead of determining the rights of the parties before the Court the Tribunal has taken a recourse to misadventure granting relief which is not sought for nor the person is a party before it. Material evidence has been ignored, misconstrued, misinterpreted and kept away thus, committing a grave illegality and this Court is even unable to pass a comprehensive judgment in its absence which is further compounded by the loss of original records in the fire. In light of position of law laid down in Sharanamma and Others Vs. M.D., Divisional Contr. Nekrtc, , the impugned Award is set aside and the matter is remanded to the Tribunal to proceed ahead into the matter afresh as per law. Keeping in view the inordinate delay impels this Court to issue directions for speedy disposal of the matter and the same be disposed of preferably within a period of four months from the date the parties put in appearance before the Tribunal/successor Court on 26th November, 2014. Records be dispatched and office to comply.