IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Cross Objection No.59-CII of 1996 in/and FAO No.945 of 1992 (O&M) Date of decision:24.02.2011 Badan Singh ....Appellant versus The State of Haryana and others ....Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. R.S.Dhandwal, Advocate, for Mr. P.S.Rana,Advocate, for the appellant. Mr. Kunal Garg, AAG, Haryana, for respondents 1 to 3. None for respondent No.4. Mr. Vivek Singal, Advocate, for respondent No.5. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? No. 2. To be referred to the reporters or not ? No. 3. Whether the judgment should be reported in the digest ? No. ---- K.Kannan, J. (Oral) 1. The appellant is represented through Mr.R.S.Dhandwal. He seeks for time. I decline his request and proceed to dispose of the case on merits, with the assistance of the counsel appearing on behalf of the Insurance Company and with the State counsel. 2. It is a case of collision of two buses belonging to the Haryana Roadways. The claimant was a driver of one of the vehicles. Having found that it was a case of motor accident and the claimant had also contributed to the accident, it held that the only remedy of the claimant was to proceed under the Workmen's Compensation Act and not Cross Objection No.59-CII of 1996 in/and FAO No.945 of 1992 (O&M) - 2 - under the Motor Vehicles Act. Such a finding was clearly erroneous. If a case is lodged attributing negligence to another person and the Court finds that the other driver was not fully responsible but the claimant himself was guilty of contributory negligence, a relief under the Motor Vehicles Act was perfectly tenable and only limitation which the claimant would have subjected his own claim would be to have the amount assessed under the various heads and suffer an abatement to the extent of negligence attributed to his driving. In this case, where the apportionment of liability was made as 50:50 between the two drivers, the Tribunal ought to have assessed the amount and caused an abatement to 50%. The dismissal of the petition was erroneous. 3. Section 110-AA of the Motor Vehicles Act of 1939 allowed the claimant to opt to a relief either under the Motor Vehicles Act or under the Workmen's Compensation Act and not under both. If the claimant had filed the petition under the Motor Vehicles Act and proceeded with an appeal before this Court, it must be only taken that he had exercised an option to pursue a remedy under the Motor Vehicles Act and forsook the claim under the Act. The case has consequently to be adjudicated only on the evidence before the Forum opted by the claimant. 4. The case is of the year 1992 and the records are not available in this case and it is not very clear whether the records have been burnt in the fire that took place on 30.01.2011 or they are available in the Records Section before the Motor Accident Claims Tribunal at Kurukshetra. If the records had been available on the file, it could have Cross Objection No.59-CII of 1996 in/and FAO No.945 of 1992 (O&M) - 3 - been possible for this Court to dispose of the case on the basis of the evidence. In the absence of documents and with no proof available about the nature of injuries suffered by him, I can only set aside the award and remit the matter to the Tribunal for disposal in accordance with law. If the records are available in the Records Section of the Tribunal, the claimant shall have no further opportunity to adduce any evidence and the case will be decided on the basis of documents available on file. If, on the other hand, the records are not available, it should be taken that the records have been destroyed in the fire and it can call upon the parties to adduce appropriate evidence for dealing with the case. The question whether the claimant shall have an opportunity to lead evidence will depend on the availability or otherwise of the trial Court records. 5. The award is set aside and the matter is remitted to the Tribunal for fresh disposal in the light of what is stated above. 6. There is also a cross objection at the instance of the driver of the other vehicle involved in the accident stating that the finding of the Tribunal that it had no jurisdiction, was erroneous. I have already upheld that contention and no separate orders are necessary in the cross objection. 7. For appearance of parties before the Tribunal at Kurukshetra on 19.03.2011. (K.KANNAN) JUDGE 24.02.2011 sanjeev