THE HONOURABLE SRI JUSTICE P. SWAROOP REDDY C.M.A.No.3856 OF 2004 JUDGMENT: This civil miscellaneous appeal is filed by the claimant against the judgment and decree passed by the XIII Additional Chief Judge (FTC), City Civil Court, Hyderabad, in O.P.No.1461 of 2002. 2. Heard. 3. The case of the petitioner is as follows: On 08.04.2002 while the petitioner was going on his scooter No.ABB 4990, when he reached old Bowenpally Check Post, Secunderabad, one Maruthi Car bearing No.AP 9S 9018 over took him from left side and came in front of his scooter and in that process the rear bumper of the car dragged the scooter. The bumper came out and the petitioner fell down on the road from his scooter and received fracture and other injuries. After the accident, he was shifted to Gandhi Hospital, Secunderabad for treatment, where he was admitted as inpatient. Police registered a case in Cr.No.105 of 2002 under Section 337 of IPC. The petitioner was an employee in Airforce drawing salary of Rs.16,000/- per month. He spent huge amount for treatment. He claimed compensation of Rs.1.00 lakh. First respondent remained exparte and the second respondent – insurance company filed counter denying the allegations of the petition. Basing on the above pleadings, the following issues were framed: 1. Whether the petitioner sustained injuries in a motor accident that took place on 08.04.2002 due to rash and negligent driving of the driver of Motor Cycle bearing No.AP 9S 9018? 2. Whether the petitioner is entitled for compensation, if so to what amount and from whom? 3. To what relief? Additional issues: 1. Whether the petitioner was earning Rs.16,000/- per month? 2. Whether the accident occurred due to rash and negligence of Maruthi Car Driver? 3. Whether the petitioner entitled to the claim prayed for? 4. To what relief? Additional issue: 1 . Whether the driver of the Crime vehicle is not possessing valid driving license? 4. On behalf of the petitioner, P.W.1 was examined and Exs.A1 to A7 were marked. No oral evidence was adduced on behalf of the respondents, but Ex.B1 the insurance policy was marked. The learned trial Judge dismissed the O.P. holding that no charge sheet is filed. There is no material to show that the petitioner was negligent etc. The finding of the trial Judge that on account of non-filing of charge sheet, the accident is not proved, is somewhat strange. 5. Now, the point for consideration is whether there are any grounds for allowing the appeal? 6. According to the petitioner, the accident has taken place on account of the negligence of the driver of the Maruthi Car, which over took his scooter and in that process the bumper of the car dragged the scooter and ultimately the bumper came out, he fell down and suffered injuries. In the claim petition and in the first information report, there is a mention about the facts, but unfortunately, in the chief-examination affidavit of the petitioner, it is not mentioned that there was any contact between the car and the scooter. It might have happened on account of over sight of the advocate, who prepared the chief-examination affidavit of the petitioner. However, without that vital averment in the evidence, i.e., in the chief-examination affidavit of the petitioner, it cannot be said that there is proof of accident with the car, particularly as the petitioner himself is the injured eyewitness. There is no other supporting evidence. Perhaps even there was any other evidence also, when the petitioner did not speak, that might not have been of any use. 7. Considering these circumstances, I hold that remanding the matter to trial Court for recording further evidence of P.W.1 would meet the ends of justice. Accordingly, the findings of the trial Court are set aside and the matter is remanded to the trial Court for fresh disposal in accordance with law. Parties shall not be entitled to file any fresh documents and the matter is being remanded only for recording of further evidence of P.W.1 and disposal on the basis of the material on record including the further evidence of P.W.1. The trial Court is directed to dispose of the O.P. within six months from today and the petitioner shall not be entitled for interest on the compensation if awarded for the period from today till the date of fresh disposal of O.P. 8. With the above direction, the C.M.A. is allowed. No order as to costs. ______________________ P. SWAROOP REDDY, J. 16th November 2010, Rns