1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT S.B. CIVIL MISC. APPEAL No.519/1997 MAHENDRA SINGH V/s NARENDRA KUMAR SINGHAL & Anr. DATE OF JUDGMENT ::::: APRIL 25, 2008 PRESENT HON'BLE MR. JUSTICE GUMAN SINGH Shri M.K. Goyal, for appellant/claimant. Shri Rakesh Bharagava, for respondent No.1. Shri Tej Praskash Sharma, for respondent No.2. BY THE COURT (Oral): 1. This appeal has been filed u/s 173 of the Motor Vehicles Act, 1988 by the appellant against the award dated February 12, 1997 passed by the learned Judge, Motor Accident Claims Tribunal, Jaipur District, Jaipur, (for short “the Tribunal) whereby claim petition No.352/1987 was dismissed by the Tribunal. 2. Brief facts of the case are that in the intervening night of 9-10 of January 1987, injured Mahendra Singh was going from Jaipur to Bilpur driving car RND 5318. When he reached near village Lawana, the car collided against a stationary truck from the left side of road resulting into death of two occupants of the car and he himself 2 sustained injuries resulting 30% permanent disability. The claim petition of the appellant was dismissed by the learned Tribunal on the ground that the disability certificate was not related to the injuries caused to the appellant. The learned Tribunal also observed that the truck UHN 716 which was standing on the road against which the car collided, was found to be liable for 70% of the negligence for which the accident occurred. While the appellant (driver) was found to have been responsible for 25% negligence for the accident on the ground that he failed to apply brakes to avoid the accident. 3. Learned counsel for the appellant has contended that the learned Tribunal has erred in dismissing the claim of appellant Mahendra Singh whose presence at the time of accident was established from the statement of eye witnesses and the injured himself. Learned counsel also submitted that though the injury report and the treatment record of injured Mahendra Singh could not be filed before the Tribunal but the disability certificate is the sufficient basis on which the claim petition could have been decided. 3 Learned counsel also contended that the Tribunal further erred in holding that appellant was responsible for 25% contributory negligent though the Tribunal gave a decision that the truck was standing on the road and there was no indication about the truck being on the metalled road and that the appellant had left with no space on the road to give side to the vehicle coming from the opposite side and in that case he had left with no option but to apply brakes for which no negligence can be attributed. 4. Per contra, leaned counsel for the Insurance Company supported the judgment of the Tribunal on the ground that the Tribunal has considered all the aspects of the accident and after recording evidence of both the sides during enquiry, rightly arrived at the conclusion and calls for no interference. 5. In view of the rival contentions, it is revealed that the matter is to be viewed in proper perspective after marshalling of evidence on record. Therefore, without commenting upon the merits of the case, the matter deserves to be remanded for fresh decision. 4 6. Accordingly, the award of the learned Tribunal is set aside and the case is remanded back to the learned Tribunal for fresh decision as expeditiously as possible after giving opportunity of hearing to both the parties and also producing the evidence, if any. 7. Both the parties are directed to appear before the Tribunal on 22.5.2008. 8. With the aforesaid observations, the appeal stands disposed of. Record be sent back forthwith. (Guman Singh), J. Chauhan/