IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- 1. CIVIL MISC. APPEAL No. 151 of 1996 REGIONAL AUDIT OFFICER COOPRATIVE DEPT. V/S NAZEER KHAN & ORS. 2. CIVIL MISC. APPEAL No. 143 of 1996 TAKHAT SINGH V/S NAZEER KHAN 3. CIVIL MISC. APPEAL No. 144 of 1996 LAXMAN SINGH V/S NAZEER KHAN Mr. P.K. BHANSALI, for the appellant / petitioner Mr. R.K. MEHTA, for the respondent Date of Order : 8.2.2008 HON'BLE SHRI N P GUPTA,J. ORDER ----- These three appeals have been filed against the judgment and award of the learned Motor Accident Claims Tribunal Jodhpur, dt. 2.11.1995, whereby, by a common judgment, all the three claim petitions were decided. Claim No. 72 is filed by Takhat Singh, who was passenger in the jeep, and sustained injuries, while Claim No. 73 is by Laxman Singh, who was driving the jeep, and had also sustained injuries, and Claim No. 74 is by the owner of the jeep, for property damage. The learned Tribunal, while deciding issue no. 1 found, that the accident was result of the contributory negligence of both the jeep drivers, and with this finding, the Claims No. 73 and 74 have been dismissed. While in Claim No. 74 the claimant has been found to be entitled to compensation of Rs. 10,000/-, but then the insurer has been exonerated, on the ground, that on the side of the claimant photo copy of the cover note has been produced, but the claimants have not proved, that the delinquent jeep was insured with the insurer, on the date of accident. It was also found, that photo stat copy of the cover is not admissible in evidence, and therefore, it cannot be found, that the vehicle was insured with the respondent no.3. After going through the entire record, and the trial, I am constrained to observe, that claims have been conducted by either side, without least care towards the interest of the respective clients. Likewise, even the learned Presiding Officer has also conducted the trial, in a wholly careless manner. I do not want to use any further harsh words. It is strange, that the photo stat copy of the insurance cover has been produced, and is there on record, 2 and even admission/denial thereof was not got conducted. The Insurance Company in the written statement has taken a plea, that the Insurance Company has been added as a party, on the basis of the alleged insurance cover, and the answering defendant made search in its office, but did not find any such policy to have been issued. Thereupon they gave notice to the counsel for the claimant, to provide copy of the policy/cover note, or to inform the branch office, or the name of the agent, from whom the policy was obtained, but then no reply was given, therefore, the insurer denies the factum of vehicle being insured. It would suffice to observe, that the insurer has not denied that the particular copy of the insurance cover, available on record, has not been issued by the branch from whom it purports to have been issued, or does not bear the signatures of the person which it purports to bear, or that the things are fabricated, forged, or manipulated. That apart, in any case, at least during trial, some evidence could be led by the insurer to deny the genuineness of the document produced, purporting to be insurance cover. It is significant to note, that the claimants are not the insured, and they obviously could not be in knowledge of the fact, as to by which branch the copy was issued, or who was the agent, from whom it was obtained, as the insurance cover was obtained by the owner defendant, who was exparte. At the same time, the claimants also, even by word of 3 mouth, have not proved the insurance cover, produced by them, though other documents have been proved by the claimants, while in the witness box. The learned Judge has discarded the insurance cover, as being inadmissible, but then, there was no occasion during trial, for the learned trial court, to consider admissibility, apart from the fact, that it is established law, that strict rules of Evidence Act are not applicable to the trial of the motor accident claim cases. As such, the photo copy of the insurance cover, could be admitted in evidence. Likewise as the findings of the learned Tribunal on issue no. 1 are, that the accident was out come of contributory negligence, even on the basis of this finding itself, the claim could not be dismissed altogether, inasmuch as, the learned Tribunal was further required to arrive at the proportion of the contribution of the two tort-feasers, and to have assessed the loss, suffered by the claimants, and was then to make pro-rata deduction, to the extent of contribution of the claimant, in causing the accident. Thus, the award as given by the learned Tribunal, on the face of it, cannot be sustained on any of the aspects, as decided by the learned Tribunal. 4 In such circumstances, I am inclined to set aside the awards in all the three cases, and remand the matter back to the learned trial court, to decide the matter afresh, after giving adequate opportunity to the parties, to lead such further evidence, as they may like to adduce, keeping in view the aforesaid observations. These appeals are accordingly allowed. The impugned award is set aside, in all the three cases, and the matters are remanded back, as above. The learned trial court is directed to decide the matter expeditiously, as the matter is already very old. ( N P GUPTA ),J. /sushil/ 5