P. Rajeswari and Another vs Hotel Imperial and Another

Swamikkannu, J.—The Tribunal has observed in the award under appeal that from the evidence of R.W. 1 it appeared that only on 1-8-

1977 the police decided to proceed against the car MSM 3499, Therefore the Tribunal found that the appellants herein have not established that it

was car MSM 3499 that was involved in the accident and answered the said point against the appellants herein and in favour of the respondents

herein. Then the Tribunal proceeded to fix the quantum of compensation ''and arrived at the compensation that is payable to the appellants herein

at Rs. 5,000/-. In view of the Tribunal''s finding under the first issue, the Tribunal dismissed the petition filed by the petitioners/appellants herein

before it: P.W. l Parthasarathy, P.W. 2 Chakrapani, P.W. 3 Balakrishnan"" and P.W. 4 Dharman were examined on the side of the appellants

herein before theTribunal and Ex. A-1 record sheet of the deceased Bhaskaran dated 26-3-1978 issued by the Elementary School, Pallavaram:

Ex. A death register extract issued by the Madras Corporation in respect of the deceased Bhaskaran dated 21-9-1977; and Ex. A-3 post-mortem

certificate issued by the Assistant Professor of Forensic Medicine. Madras Medical College in respect of the deceased were also filed on their

side. R.W. 1 Hameed, Manager of the first respondent was examined on the side of the respondents and Ex. B-1 letter dated 6-8-1977 written by

the first respondent to the Sub-Inspector of Police, Pailavaram and Ex. B-2 notice dated 2-8-1977 sent by the Sub-Inspector of Police to the first

respondent herein were also filed on their side. On the evidence thus available on record, the Tribunal had come to the conclusion as mentioned

above. Aggrieved by the above decision of the Tribunal, the petitioners have come forward with this appeal.

The points that arise for consideration in, this appeal are :

(i) Whether the liability of the owner of the vehicle in question which had hit the deceased Bhaskaran and caused his death as a result of the

accident on a subsequent day after the accident had been proved beyond all reasonable doubt?

(ii) If so, what is the quantum of compensation that is payable by the person concerned or the company concerned to the persons who are eligible

for the compensation so ascertained?

Points Nos. (i) and (ii) :

Even at the outset it has to be mentioned that in the instant case required materials for coming to the conclusion regarding the liability for the

accident were not placed before the Tribunal by either side. This does not mean that the Tribunal is bereft of powers for getting at the truth of the

claim as well as regarding the person at fault who drove the vehicle. In the instant case it is submitted on behalf of the appellants herein that both

the cars which are accused of having committed the collision, belong to one and the same person viz., the first respondent herein. But that does not

mean that a finding to that effect can be given by the Tribunal. The Tribunal is obliged to find out from the evidence available or to get at the

evidence as provided u/s 165 of the Evidence Act or give further opportunity for either side to produce necessary evidence, such as documents

that were prepared during the time of investigation in the instant case and come to a conclusion regarding the liability. It is common ground that

prosecution was launched against the owner of the vehicle bearing registration No. MSM 3499. Prima facie It is the driver of this vehicle that could

be pointed out and held as the person responsible for the accident. Whether the accident was the one which was exclusively falling on the

shoulders of the driver of the said vehicle or contributed to a certain extent by the deceased himself darting at the place of occurrence at the critical

point of time has to be taken into consideration also by the Tribunal, because contributory negligence whether pleaded or not is the one that has to

be taken note of by the Tribunal suo motu and a finding regarding that aspect has to be given. In view of the above fact that all the above features

are not properly appreciated arid there is no proper exercise of judicial discretion by the Tribunal by applying the provisions of the Evidence Act

or the procedural law of the land, this Court has no other alternative than to set aside the award of the Tribunal under appeal and remit the matter

back to the Tribunal for fresh disposal of the claims in accordance with law and in the light of the observations made above. It is needless to say

that only after the ascertainment of the liability of the accident, the quantum of compensation can be ascertained?

Under the circumstances, the appeal is allowed, the award of the Tribunal is set aside and the matter is remitted back to the Tribunal for fresh

disposal in the light of the observation made above and after giving opportunity to both sides to adduce evidence if any, and, then come to a

conclusion on the fresh evidence that has to be let in as well as the available evidence already oh record. The Tribunal is directed to dispose of the

claim within three months from the date of receipt of the records by it from this Court. The Court-fee paid on the memorandum of appeal will be

refunded to the appellants.

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