Sangeeta Kalanki and Others vs Abdul Latif and Others

This appeal has been preferred u/s 173 of the Motor Vehicles Act, 1988 against the Award dated 28.1.2004 passed by 3rd Additional Motor Accident Claims Tribunal, Ujjain in Motor Vehicle Case No. 48 of 2003, whereby the Claims Tribunal has dismissed the claim petition of the appellants, for the reasons assigned by him in the impugned Award.

The facts giving rise to the filing of the present appeal are as under: According to appellants on 21.5.2001, deceased Sudhkar was going on Luna bearing registration No. MP-13/FA-6893 at Ujjain. At that time P.W. 2 Jagdish, was also a pillion rider on the said Luna, which was being driven by deceased Sudhakar. At that point of time, according to the appellants, the Luna was dashed by a scooter, driven by respondent No. 1 Abdul Latif, owned by respondent No. 2 and insured with respondent No. 3. Due to the said accident and the injuries sustained by Sudhakar he succumbed to the same.

FIR is said to have been lodged by Jagdish, co-passenger on 21.5.2001 within 40 to 50 minutes from the time of the accident in which the scooter number was given as 6554, of cream colour. Later on, according to Jagdish, it was revealed that he had given a wrong scooter number, whereas the correct scooter number was MP-13/Y-2176. Pursuit to the change of the scooter number, challan was filed against the owner of Scooter number MP-13/Y2176, which was also seized later on.

Before the Claims Tribunal to iron out the creases and to come to definite conclusion the evidence of investigating Officer, who had conducted an inquiry with regard to actual involvement of the vehicle was not recorded. In absence of the evidence of I.O. the learned Claims Tribunal, came to the conclusion that it could not be established as to by which vehicle the accident was caused.

After having heard learned Counsel for parties and after perusal of the record, we are of the considered opinion that it is a fit case where the matter deserves to be remanded to the Claims Tribunal, so as to afford an opportunity to the appellants to examine the I.O. However, this suggestion was seriously challenged by the learned Counsel appearing for the Insurance Company, Mr. H.G. Shukla on the ground that the claimants should not be granted opportunity to fill up the lacuna. It does not amount to filling up the lacuna as it should have been done on proper advice to be given by learned Counsel who appeared before the Claims Tribunal. If due to lack of proper legal advice the party is made to suffer, then the ends of justice would not be met and it shall cause a great financial loss to the appellants. Admittedly there is no dispute that death of Sudhakar was caused due to motor road accident. If it is to found out still as to who was the tortfeasor and which vehicle was involved in the said accident. To ascertain these material facts, even if the matter is to be remanded, in our considered view, it will not amount to filling up the lacuna or to give handle to the claimants who have been unsuccessful to prove the claim. As has been mentioned by us hereinabove that it should have been done before the Claims Tribunal itself, but for want of proper legal advice this could not be done. For this reason the appellants cannot be allowed to suffer.

In this view of the matter we hereby set aside the impugned award, remand the matter to 3rd Additional Motor Accidents Claims Tribunal, Ujjain. After remand the appellants shall get the evidence of I.O. recorded or any other witness who may be able to prove involvement of Scooter bearing registration No. MP-13Y-2176, in the said accident. The respondent, Insurance Company shall also be at liberty to examine any witness on its behalf in defence. However, looking to the fact that matter is quite old, parties shall not seek undue adjournments in the matter and an endeavour would be made by the Claims Tribunal to dispose of the matter on merits, within a period of 6 months from the date of communication of this order.

Parties agree that they would appear before the Claims Tribunal on 13.5.2005. Office is directed to remit the record to the said Court forthwith. No cost. CC to both parties.