SOLANKI BHARTHUJI FATAJI vs National Insurance Co. Ltd.

WE have heard the Advocates of both the parties. WE are of the opinion that in the instant case, the original complainant has already given a report that the tag had come out from the ear of the buffalo but no action appears to have been taken. WE are also of the opinion that the tag is not the only evidence of the identity of the buffalo. There are other means also by which a buffalo can be identified including the oral evidence of the party, neighbours and several other things.

IT may be remembered that even in the complaint, the facts shall have to be proved either by affidavit or by oral evidence. IT is incumbent in all cases unless the fact is admitted by the otherside that the complainant must produce the affidavit in support of his complaint. Similarly the affidavit should be produced by the opposite party also to deny the facts stated in the complaint. We have seen in several cases that the complainants and or opponents are not filing affidavit in support of their respective claims. IT may be borne in mind that the pleadings are not evidence. Pleadings are the respective cases of the parties from which issues are to be framed and the controversy is required to be decided by the Commission for Forum. Considering the scheme and purpose of this Act, it is desirable that the District Forum and/or Commission before whom the cases are brought should also inform the parties that they should file an affidavit in support of their respective cases or give oral or documentary evidence. In this country most of the litigants are not possessing legal knowledge and it will be very much in the interest of justice if the District Forums/Commission atleast inform the respective parties regarding the requirements of law so that the case may not be remanded for such technical errors.

In the instant case the dispute was regarding the identity of the buffalo which had definitely died. Whether the dead buffalo was the buffalo, which was insured or not could have been established by any permissible legal evidence and the tag is not the only evidence. Unfortunately, no party has filed any affidavit and none were asked to step into the witness box. In view of this lacuna we are constrained to remand this case of a very poor person in the interest of justice. With the aforesaid observations, we pass the following order. ORDER The appeal is allowed. The judgment and order of the District Forum are set aside. Both the parties will file fresh affidavits and adduce evidence if they so desire and the District Forum will decide the case in accordance with law after hearing both the parties. The cost will be the cost in the cause. Appeal allowed.