IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal From Order No. 157 of 2007 1- Smt. Pinki W/o late Padam Giri, 2- Km. Muskan D/o late Padam Giri, 3- Km. Nishika D/o late Pdam Giri, 4- Smt. Tarawati Wo Jagdish Giri, 5- Jagdish Giri S/o Ghasi Giri, Appellant No. 2 and 3 minors through Their mother and natural guardian Smt. Pinki R/o Village Gadharona, Post Landaura, P.S. Manglore, District Haridwar …Claimants/Appellants. Vs. 1. M/S Raja Transport Private Ltd. through Manager, Rishikesh, District Dehradun. 2. The Oriental Insurance Company Ltd. through its Divisional Manager, Division Office, Near Post Office Jwalapur, Haridwar …Opp. Party/ respondents. Sri Anil Dabral, learned counsel for the appellants. Sri Ramji Srivastava, Advocate for respondent No. 1. Sri V.K. Kohli, Senior Advocate, assisted by Sri I.P. Kohli Learned counsel for the respondent No. 2. Dated: 28-02-2008 Hon’ble B.C. Kandpal, J. This appeal has been preferred U/S 173 of he Motor Vehicles Act, 1988 , by the claimants against the judgment and order dated 13-2-2007 passed by Motor Accident Claim Tribunal/Additional District Judge, Roorkee, in MA.C. Case No. 5 of 2004, thereby dismissing the claim petition filed by the appellants. 2- Brief facts of the case giving rise to this appeal are that on 22-10-2003, in the night, at about 9 P.M. deceased Padam Giri along with one Satya Prakash was going to Roorkee from village Dhandera in his Motorcycle Suddenly Tanker bearing No. U.A. 7-C 9504, which was being driven at a high speed, came from behind and dashed the Motorcycle, due to which Padam Giri, who was driving the Motorcycle, sustained grievous injuries and Satya Prakash, the pillion rider, also sustained injuries. Padam Giri was brought to Civil Hospital Roorkee, where the doctors declared him dead. The claimants filed claim petition before the Tribunal. Earlier the petition was heard and decided exparte which was quashed by this court vide judgment dated 20-12-2005 in Appeal No. 462/2005 and the matter was remanded back for fresh decision. 3- After remand if the case the owner of the Tanker filed written statement and has denied the accident. He alleged that the driver of the vehicle was having valid driving licence and it was insured with the Oriental Insurance Company. The owner has denied his liability to pay the compensation. 4- The Oriental Insurance Company also denied the involvement of the Tanker in the accident and alleged that the accident has occurred due to own fault of the motorcyclist, hence the insurer of the Motorcycle was a necessary party in the case. It was also alleged that the driver had no valid driving licence. 5- The Tribunal on the basis of pleading of parties framed the following issues:- 1. Whether the claimants are the legal heirs of the deceased Padam Giri? 2. Whether Padam Giri has died in an accident occurred on 22-10-2003 due to the rash and negligent driving of Tanker U.A. -7-C-9504? 3. Whether the owner and insurer of Motorcycle are necessary parties in the petition? 4. Whether the driver of the motorcycle was having valid driving licence? 5. Whether the tanker U.A. 7-C-9504 was having valid R.C., fitness, permit and its driver was having valid driving licence? 6. Whether the claimants and O.P. No. 1 had any collusion in the petition? 7. To what relief the claimants are entitled to get? 6- Parties led evidence in support of their cases. Thereafter, the Tribunal after hearing learned counsel for parties and perusing the evidence, dismissed the petition vide impugned judgment and order dated 13-2-2007. 7- Feeling aggrieve the claimant/appellants have preferred this appeal. 8- Heard Sri Anil Dabral, leaned counsel for the claimant/ appellants and Sri V.K. Kohli, Senior Advocate, assisted by Sri I.P. Kohli, Advocate for respondent No. 2 and Sri Ramji Srivastava, Advocate for the respondent No. 1 and perused the record. 9- The Tribunal after assessing the evidence has recorded a categorical finding that the accident took place on the date and at the time as alleged by the claimants in the claim petition. The eye witness account has also been produced by the claimants before the Tribunal. The only controversy in the case, as per the contention of Sri V.K. Kohli, Senior Advocate appearing on behalf of the insurance company, is that the involvement of the Tanker in question is doubtful in view of the fact that in the First Information Report the number of the vehicle involved in the accident has not been indicated. He has further submitted that the driver of the Tanker as well as the tractor and its driver along with its insurer, which is also involved in the accident, have not been arrayed in the petition. It has further been submitted that the issue with regard to the contributory negligence has also not been framed by the Tribunal concerned. Therefore, the impugned judgment and order passed by the Court below is justified. 10- The Learned counsel for the claimants/appellants, on the other hand, has submitted that the accident is admitted and as per the evidence adduced by the claimants the involvement of the vehicle is also established and it is also established that the accident took place on account of rash and negligent driving of the Tanker in question, due to which Padam Giri succumbed to injuries. 11- I have considered the rival contention of the parties and perused the material available on record. 12- P.W.2, Satya Prakash is an eye witness in the case and he has stated that the Tanker hit the Motorcycle in which he was going as a pillion rider due to which the Motorcycle was dashed with a Tractor which was coming from opposite direction and on account of which Padam Giri fell down and subsequently he succumbed to his injuries sustained in the accident. This witness also stated that he also sustained injuries. It is pertinent to mention here that the First Information Report was lodged by Suresh Giri the brother of the deceased and admittedly this person is not an eye witness of the accident. Satya Prakash P.W. 2, has stated in his deposition that the First Information Report was lodged by the brother of the deceased without asking him with regard to the involvement of the vehicle in question. Therefore, it must be the reason that in the F.I.R. the number of the vehicle involved in the accident, has not been indicated. It is further worthy to mention here that the police after lodging the F.I.R. conducted the investigation in this case and during the course of the investigation the name of the driver of the Tanker came into light and then the police after conclusion of the investigation submitted the charge sheet against the driver of the Tanker involved in the accident. 13- In the aforesaid circumstances, I think that it would be just and proper that in case if the Tractor, its insurer and driver, as well as the driver of the Tanker involved in the accident and the insurer of the Motorcycle should also be impleaded in the case so that the clear picture may come before the Tribunal and the Tribunal may arrive to the accurate conclusion as to which of the vehicle is responsible for causing the accident. Although the charge sheet submitted by the police has been filed by the claimants before the Tribunal concerned but the claimants could not prove the charge sheet by adducing any admissible and proper evidence before the Tribunal. Therefore, to my mind the Tribunal has not relied upon the important piece of document, i.e. the charge sheet which was filed before it and it decided the matter in a cursory manner. 14- For the reasons stated above, I am of the view that the impugned judgment and order passed by the Tribunal is liable to be set aside and the matter should be remanded back before the Tribunal to decide the same afresh in the light of the observations made in the body of this judgment. The claimants/appellants are also directed to implead the Tractor, its driver and insurer, as well as the driver of the Tanker and the insurer of the Motorcycle involved in the accident, as opposite parties in the claim petition, so that they may appear before the Tribunal concerned and file their written statement in support of their case. The Tribunal, thereafter perusing the entire material and giving a chance to the claimants as well the newly arrayed opposite parties for adducing evidence in support of their case, shall decide the petition afresh in the light of the material and the evidence to be adduced before it. In case if the claimants adduce any new evidence and the same goes to change the nature of the case, the opposite parties already arrayed in the claim petition, shall be at liberty to rebut those evidence by way of filing adequate evidence in support of their case. 15- With the aforesaid observations, the appeal is allowed. The judgment and order dated 13-2-2007 passed by the Tribunal is set aside. (B.C. Kandpal, J.) ISB