2013(5) ALL MR 327
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)
A.P. BHANGALE, J.
Bandu S/O. Raghoji Ujwalkar Vs. Bandu @ Vinod Gajanan Sontakke & Ors.
First Appeal No. 582 of 2003
28th June, 2013
Petitioner Counsel: Mr. N.R. Patil
Respondent Counsel: Mr. Abhay Sambre,Mr. G.Y. Moharir,Mr. D.N. Kukday
Motor Vehicles Act (1988), S.166 - Claim petition - Points for determination - Instead of determination of points about rash and negligent driving, validity of insurance policy etc. tribunal concluding that medical evidence about disability of claimant was weak - Dismissal of claim petition was improper. (Para 3)
JUDGMENT :- This appeal questions validity and legality of the impugned judgment and order passed by the learned Member, Motor Accident Claims Tribunal, Yavatmal on 26.3.2013 in Motor Accident Claim No.140 of 1995 whereby the Claim Petition was dismissed with no orders as to costs.
2. Heard the submissions made by the learned Counsel for the respective parties. The grievance of the appellant is that the learned Member of the Motor Accident Claims Tribunal did not apply his mind to the facts established on record and despite documents which were exhibited in evidence such as documents of F.I.R. and Police investigation, Certificates granted from hospital in respect of injuries to the claimant, the information received by the claimant regarding details as to offending motor vehicle, its registration, insurance etc. According to the learned Counsel for the appellant, although the claimant had suffered from permanent disability and produced documentary evidence in support of his claim, the documents were ignored without any reasonable cause. The evidence led on behalf of the claimant in the form of witness no.1 Bandu/claimant himself was ignored so as to dismiss the entire claim of the appellant except interim compensation on the ground of no fault liability.
3. In the light of the submissions at the bar, I have perused the record and proceedings as also the impugned judgment and order. It does appear from the record that the appellant had examined himself before the learned Member of the Motor Accident Claims Tribunal He was also cross-examined on behalf of the respondents. He relied upon the documentary evidence such as hospital record, copies of F.I.R. and investigation documents in connection with the incident of alleged accident which occurred on 6.11.1994 at about 6.00 p.m., which was reported on the following day to the Police Station concerned, the Injury Certificate and particulars as to registration of offending motor vehicle. Considering the evidence and the reasons recorded by the Tribunal, prima facie it appears that - instead of considering the pros and cons of the evidence, the learned Member of the Tribunal considered the arguments at the bar and proceeded to disbelieve the case of the claimant on the ground that he is constrained to come to the conclusion that the applicant (claimant) was not entitled to get compensation u/s.166 of the Motor Vehicles Act, 1988. The learned Member of the Tribunal concluded that the medical evidence was very weak. I think the approach of the learned Member of the Tribunal was improper and unjust in deciding the claim under the Motor Vehicles Act, 1988. The points for determination could have been framed as to - whether the accident as alleged had occurred, whether it was as a result of rash and negligent driving of the offending motor vehicle, whether there was any valid Insurance policy covering the period of motor accident in question and furthermore as to whether the owner and/or driver and the Insurance Company concerned were liable for the motor vehicle accident. The learned Member could also have considered that, in such cases, the standard of proof cannot be as that of a criminal trial. The claimant is not required to establish his case beyond all reasonable doubts but upon preponderance of probabilities.
4. Thus, in the light of the submissions advanced on behalf of the parties and after perusal of the record and proceedings and the impugned judgment which appear lacking adequate reasons, it would be just and proper if the Tribunal hear the parties, take evidence as may be led and then decide the claim on its own merits and in accordance with law. The impugned judgment and order for the afore-said reasons is unsustainable and is liable to be set aside and hence, it is quashed and set aside with above directions. The appeal is allowed accordingly.
Parties to appear before the learned Member, Motor Accident Claims Tribunal, Yavatmal on 22.7.2013.
The record and proceedings be sent back to the Tribunal.