HON’BLE SRI JUSTICE P.S. NARAYANA M.A.C.M.A. No.1625 of 2006 Date: April 26, 2010 Between: A.S. Sundar Raju … Petitioner/Appellant And 1. M.A. Aleem and another … Respondents/Respondents * * * HON’BLE SRI JUSTICE P.S. NARAYANA M.A.C.M.A. No.1625 of 2006 JUDGMENT: Heard Sri J.U.M.V. Prasad, learned counsel representing appellant and Sri A. Ramakrishna Reddy, learned counsel representing R-2. 2. Sri J.U.M.V. Prasad, learned counsel representing the appellant would maintain that the Motor Accidents Claims Tribunal (I Additional District Judge) at Mahabubnagar, ought to have seen that to prove accident, Ex.A-1 FIR copy had been filed and marked and the same is not in controversy and, hence, the aspect of burden of proof had not been appreciated in proper perspective. The learned counsel also would further maintain that the Tribunal failed to see when once FIR was registered and when the accident also was recorded, it is settled law that the further investigation in a criminal case being only consequential on the said ground recording certain findings and ultimately negativing the relief on the ground that issue No.1 was answered against the appellant-petitioner-claimant cannot be sustained. The learned counsel also further had drawn the attention of this Court to relevant portions of the findings recorded by the Tribunal in this regard and in particular pointed out to the findings recorded at para 15 and would further maintain that because of certain reasons intentionally the investigation had been delayed at particular point of time and now the investigation had been completed and charge sheet also had been filed and, hence, on such grounds negativing the relief being improper, especially, in the light of the other clear findings which had been recorded by the Tribunal while answering issue No.2 at paras 16, 17 and 18, it is a fit matter where the compensation to be fixed as observed by the Tribunal. In the alternative, the learned counsel would maintain that if in the light of the subsequent developments further evidence to be let in, at least, an order of remand to be made. 3. Per contra, Sri A. Ramakrishna Reddy, learned counsel representing second respondent would maintain that it is not as though the Tribunal had not appreciated the evidence available on record. The Tribunal, in fact, appreciated the evidence of P.Ws.1 and 2, Exs.A-1 to A-20, recorded findings in detail and, in fact, had calculated the probable compensation on different heads, but ultimately negatived the relief, since acceptable evidence in proof of claim had not been placed before the Tribunal and inasmuch as on issue No.1 specific finding had been recorded against the appellant-claimant. The order under challenge need not be disturbed and it is not even a fit case where an order of remand be made in the peculiar facts and circumstances. 4. Heard the counsel on record, perused the oral and documentary evidence available on record and the findings recorded by the Tribunal as well. 5. The appellant, hereinafter referred to as petitioner-claimant, filed O.P.No.178 of 2001 on the file of the Tribunal aforesaid under Section 166 of the M.V. Act (hereinafter in short referred to as “the Act” for the purpose of convenience) for compensation of Rs.3,00,000/- for permanent disability sustained by him in motor vehicle accident involving the jeep bearing No. AP 22 A 9153 owned by respondent No.1 and insured with the second respondent. 6. It is the case of the petitioner that the petitioner is working as Dark Room Assistant in Health Department at Mahabubnagar. On 10.2.1999 the petitioner and his friend started from Kothakota in the offending jeep of his friend to go to Nandigama village to attend a marriage reception and at about 8-30 p.m. when the jeep was going on N.H.No.7 in the limits of Macharam village of Jadcherla mandal, the jeep was driven in a rash and negligent manner and dashed against side wall of the culvert. As a result, the petitioner and others sustained injuries. Immediately, the petitioner was shifted to the Osmania General Hospital, Hyderabad, for treatment and for about one month he was treated there as inpatient. During the course of treatment, his right foot, up to ankle, was amputated and a rod was inserted in the right thigh after operation. The petitioner had spent about Rs.50,000/- for his treatment. The petitioner suffered permanent disability to his right leg and, therefore, he needs artificial limb. He is deprived of normal avocation and enjoyment in life and suffered pain and suffering due to this accident. The petitioner was deprived of his promotional chances. Jadcherla police registered a case in Cr.No.57 of 1999 under Section 339 IPC against the driver of the offending vehicle on the complaint of the petitioner. 7. The first respondent remained ex parte. The second respondent filed counter denying the allegations in the petition that the offending jeep was driven by the driver in a rash and negligent manner. The petitioner was 30 years old and earning Rs.8,000/- per month as Government Servant and the petitioner sustained injuries and took treatment and spent Rs.50,000/- towards medical expenses and that the offending jeep insured with the second respondent and that the policy issued by the second respondent was in force as on the date of the accident. The first respondent is registered owner having insurable interest in the offending vehicle and the petitioner is entitled for compensation of Rs.3.00 lakhs had been denied and it is pleaded due to negligence on the part of the petitioner, the accident was occurred and, hence, the second respondent is not liable to pay compensation. 8. The Tribunal settled the following issues: (1) Whether the accident occurred on 10.2.1999 at about 8-30 p.m. in the limits of Macharam village on N.H.No.7 near Jadcherla, due to rash and negligent driving of the jeep No. AP 22 A 9153 by its driver and whether it resulted in causing injuries to the petitioner? (2) Whether the petitioner is entitled for any compensation? If so, to what amount, and from whom? (3) To what relief? 9. The evidence of P.W.1 and P.W.2 had been recorded and Exs.A-1 to A- 20 had been marked. 10. The Tribunal while answering issue No.1 recorded reasons at paras 5 to 15 and ultimately came to the conclusion that the issue to be answered as against the petitioner-claimant. While answering issue No.2 the Tribunal further recorded reasons at paras 16 to 18 and having observed that in the result the petitioner might have been granted compensation of Rs.5,57,380/- had issue No.1 been decided in his favour, ultimately dismissed the O.P. Hence, the present M.A.C.M.A. 11. In the light of the submissions made by the counsel on record, the following points arise for consideration in this M.A.C.M.A. (1) Whether the findings recorded by the Tribunal are to be confirmed or to be disturbed in any way or to be modified in the facts and circumstances of the case? (2) If so, to what relief the parties would be entitled? 12. Point No.1: The petitioner-claimant is the victim in the accident in question. His evidence is clear and categorical on the aspect of accident. Exs.A-1 to A-10 had been marked. The doctor, P.W.2, was examined through commissioner. The evidence of P.W.1 and P.W.2 had been appreciated by the Tribunal in proper perspective and Exs.A-1 to A-20 also had been taken into consideration and findings had been recorded. However, the Tribunal at paras 9 and 15 observed as hereunder. “It is the defence of R-2 as elicited to P.W.1 that as he was sitting by the side of the jeep he fell down due to his own negligence and that the jeep driver was not responsible for the accident. In the cross-examination, P.W.1 stated that he sat in the middle position of the jeep, which is not corroborated by record. Though the other eye-witnesses are available, none of them is examined to explain the nature of accident. It is argued for R-2 that since sitting position of the petitioner was precarious, it has to be held that the accident occurred purely due to the negligence of the petitioner and therefore, R-2 is not liable to pay compensation. No doubt R-2 has not examined any eye-witness, but this omission cannot be considered as fatal to their defence because the petitioner himself has not revealed anything about the fate of the crime registered by Jadcherla police. Whether any charge sheet has been filed or whether case has been referred is not revealed by him. Further the scene of offence panchanama, the rough sketch and MVI report, if any, about condition of the offending jeep are not filed so as to appreciate the allegation that the jeep driver dashed side wall of the culvert in rash and negligent manner. The petitioner filed Ex.A-19 which is returned copy application No.744/05 dated 29.10.05 filed by him for granting of copies of medical certificate and charge sheet in Cr.No.57/99. It has been returned by the court stating that the said documents are not available on record. Evidently the petitioner has not re-presented the copy application by furnishing the particulars of the Calendar Case, if any, or final report filed by the police. Even in the evidence, it is not alleged that the police have investigated and filed charge sheet in the court. It shows that the petitioner has suppressed material facts regarding the fact in issue. Therefore, the petitioner has no bona fides in this regard and the issue goes against the petitioner and in favour of the respondents.” 13. No doubt, certain submissions were made that in the light of Ex.A-1, certified copy of FIR, the said finding is being unsustainable, the claim to be straight away allowed by this Court. However, Sri A. Ramakrishna Reddy, learned Standing Counsel for second respondent would maintain that the subsequent events, if any, the filing of charge sheet or otherwise, these may have to be established and, hence, it cannot be said that the findings recorded by the Tribunal in the light of the evidence which had been placed as on that day to be totally unsustainable and, hence, the said findings not to be disturbed. 14. This Court had carefully gone through the further findings of the learned Tribunal at paras 15, 16, 17 and 18 as well and the learned Tribunal having fixed some quantum of compensation under different heads ultimately observed that in the result the petitioner might have been granted compensation of Rs.5,57,380/- had issue No.1 been decided in his favour. Hence, the issue goes against the petitioner and in favour of the respondents. 15. In the light of these findings coupled with what has been observed in para 15 of the award, this Court is satisfied that a further opportunity to be given to the petitioner to further substantiate his stand, especially, in the light of the observations made by the Tribunal and the reasons recorded by the Tribunal why the relief had been negatived. Hence, the order under challenge to be set aside and accordingly the same is hereby set aside. 16. Point No.2: In the result, the order under challenge is hereby set aside and the matter is remanded to the learned Motor Accidents Claims Tribunal (I Additional District Judge) at Mahabubnagar, to give opportunity to the parties to let in further evidence if they choose to do so and decide the matter afresh in accordance with law keeping in view the findings already recorded while answering the issues. 17. Accordingly, the M.A.C.M.A. is allowed to the extent indicated above. No order as to costs. It is stated that since an order of remand is being made and since it is an old matter, it requires an early disposal. Let the learned Judge dispose of the matter at the earliest point of time, preferably, within a period of six months from the date of receipt of this order. ____________________ (P.S. NARAYANA, J) Date: April 26, 2010. BSB