[2016] 2 S.C.R. 71

U.P.S.R.T.C.

Km. MAMTA & ORS.

(Civil Appeal No.1425 of2016)

FEBRUARY 12, 2016

[J. CHELAMESWAR AND ABHAY MANOHAR SAPRE, JJ.]

Motor Vehicles Act, 1988 - s. 17 3 - First appeal under - Scope of - Held: An al?peal u/s. 17 3 is in the nature of first appeal like s. 96 CPC - High Court in exercise of such jurisdiction, is C under legal obligation to decide all the issues, both on facts and law after appreciating the entire evidence - Jn the present._case, since the High Court as first Appellate court failed to perform its statutory duty, matter remanded to High Court - Code of Civil Procedure, 1908 - s. 96.

Code of Civil Procedure, 1908 - Or. X¥ r. 4(2) rlw. Or. XL! r. 31 - Judgment of High Court - Passed in appeal uls. 17 3 of Motor Vehicles Act, 1988 - Without giving concise statement of case, points for determination, decisions thereon and reasons - Held: Such iudgment does not satisfy requirements of Or. X¥ r. 4(2) rlw Or. XL! r. 31 and hence cannot be upheld - Motor Vehicles Act, 1988 - s. 173.

Partly allowing the appeal and remitting the matter to High Court, the Court

HELD 1.1 An appeal under Section 173 of the Motor Vehicles Act is essentially in the nature of first appeal alike Section 96 of CPC and, therefore, the High Court is equally under legal obligation to decide all issues arising in the case both on facts and law after appreciating the entire evidence. (Para 24] (78-D]

1.2 Perusal of the impugned order of the High Court would show that the High Court neither set out the facts of the case of G the parties, nor dealt with any of the submissions urged, nor took note of the grounds raised by the appellant and nor made any attempt to appreciate the evidence in the light of the settled legal principles applicable to the issues arising in the case to find out as to whether the award of the Tribunal is legally sustainable or H

A not and if so, how, and if not, why? As a first appellate Court, it was the duty of the High Court to have decided the appeal keeping in view the powers conferred on it by the statute. [Paras 26 and

271 [78-H; 79-A-B]

Santosh Hazari vs. Purushottam Tiwari (Deceased) by L.Rs. (2001) 3 SCC 179:2001 (1) SCR 948; Madhukar

~ Ors. v. Sanf<ram & Ors. (2001) 4 SCC 756: 2001 (3) SCR 138; H.K.N. Swami 1~ lrshad Basith (2005) 10 SCC 243; Jagannath " Aru/appa & Anr. (2005) 12 SCC 303; B. V Ndgesh & Anr. vs. H. V. Sreenivasa Murthy (2010) 13 SCC 530: 2010 (11) SCR 784; State Bank of India & Anr. vs. Emmsons International Ltd. & Anr. (2011) 12 SCC 174: 2011 (10) SCR 436; National Insurance Company Ltd. vs. Naresh Kumar & Ors. (2000) 10 SCC 198; State of Punjab & Am: vs. Navdeep Kuur & Ors.

(2004) 13 sec 680 - relied on.

Kurian Chacko vs. Varkey Ouseph AIR 1969 Kerala 316 - approved.

2. The impugned judgment also does not satisfy the requirements of Order XX Rule 4 (2) read with Order XLI Rule 31 of CPC which requires that judgment shall contain a concise E statement of the case, points for determination, decisions thereon and tlfe reasons. It is for this reason, the impugned judgment of the High Court cannot be upheld. [Para 27] [79-C]

3. The case is remanded to the High Court for deciding the appeal afresh on merits, keeping in view the principle of law laid F down by this Court, on merits uninfluenced by the observations in the present judgment. [Paras 29 and 30] (79-D-E]

Case Law Reference AIR 1969 Kerala 316 approved.

Para 15

2001 (1.) SCR 948 relied on Para 18

G 2001 (~) SCR 138 relied on Para 19 c2005) 10 sec 243 relied on Para 20 c2005) 12 sec 303 relied on Para 21

20JO (11) SCR 784 relied on Para 22 20Jl (10) SCR 436 relied on Para 23

c2000) 10 sec 198 relied on Para 24 c2004) 13 sec 680 relied on Para 24

U.P.S.R.T.C.

v. KM. MAMTA 73

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1425 A of2016.,

From the Judgment and Order dated 28.05.2014 of the High Court of Judicature at Allahabad at Allahabad in First Appeal from Order No. 1681 of2014.

Ms. Garima Prashad, Advs. for the Appellant.·

Prakash Kumar Singh, Adv. for the Respondent.

-The Judgment of the Court was delivered by

ABHAY MANOHAR SAPRE, J. 1. Leave granted.

2. This appeal is filed by the defendant/appellant-Corporation against the judgment/order dated 28.05.2014 passed by the Division Bench of the High Court of Allahabad in First Appeal from Order No. 1681 of 2014, which in turn, arises out of an Award dated 18.02.2014 passed by the Motor Accident Claim Tribunal/District Judge (in short 'the Tribunal'), Hathras, Uttar Pradesh in MACT No. 131 of 2010.

3. In order to appreciate the short issue involved in this appeal, it is necessary to state a few relevant facts:

4. The respondents-Claiinant(Plaintiffs) filed a Claim Petition under Sections 140 and 166 of the Motor Vehicles Act, 1988 (in short 'the

M.V. Act') against the appellant-Corporation before the Tribunal, Hatlmis claiming compensation to the tune ofRs.36,35,880/- for the death of one Raj Kumar G11utam, who died in a vehicular accident. According to the respondents, on 22.09.2010, Raj Kumar Gautam-the deceased while going on his Motor Cycle bearing No. UP-86F-9224 on Hathras-Agra road near a place called 'Ghas Mandi' was hit by the appellant's bus bearing Registration No. UP-14-AB-903 8.

5. It was, inter alia, alleged that the offending bus was coming

on wrong side with high speed and hit the motor cycle, which was being driven by the deceased, on the right side of the road. The deceased who was aged 49 years sustained extensive injuries and later succumbed to G the injuries which gave rise to the filing of the claim petition by his legal representatives (respondents herein) claiming compensation for the untimely death of Raj K•:mar Gautam. The respondents also pleaded the details regarding loss of income and other particulars necessary for claiming compensation in the claim petition.

6. The appellant-Corporation filed written statement and contested the claim petition. One of the grounds taken in the defence was that of contributory negligence on the part of the deceased also while driving the motor cycle which resulted in the accident.

7. The Tribunal, by award dated 18.02.2014, partly allowed the B claim petition and awarded a total sum of Rs.24, 73,252/- along with interest@6"/o p.a. from date of filing till its realization to the respondents.

8. Challenging the said Award, the appellant-Corporation filed an appeal before the High Court. By impugned order dated 28.05.2014, the Division Bench of the High Court dismissed the appeal and upheld C the award of the Tribunal.

9. Against the said order, the appellant-Corporation has filed this appeal by way of special leave.

I 0. Learned Counsel forthe appellant-Corporation while assailing the legality and correctness of the impugned order contended that the High Court without adverting to all the factual details and grounds raised in the appeal, disposed of the appeal in a cryptic manner. According to learned counsel, the High Court neither set out the facts, nor dealt with any issue, nor appreciated the ocular and documentary evidence in its proper perspective, nor examined the legal principles applicable to the issues arising in the case and nor rendered its findings on contentious issues decided by the Tribunal though urged by the appellant in support of the appeal.

11. Learned counsel further contended that it was the duty of the High Court exercising its first appellate powers under Section 173 of the M.V. Act to have dealt with all the submissions urged by the appellant- Corporation and after appreciating the entire evidence should have come to its own conclusion one way or the other keeping in view the legal principles governing the issues. It was urged that since it was not done by the High Court, a jurisdictional error is committed by the High Court which renders the impugned judgment legally unsustainable. Lastly, the learned counsel urged that if his arguments are accepted, the remand of the case to the High Court to decide the appeal afresh on merits is inevitable.

12. Learned counsel for the respondents, however, supported the impugned order and urged that it does not call for any interference.

13. Having heard the learned counsel for the parties and on perusal A of the record.of the case, we find force in the.submission of the learned counsel for the appellant-Corporation.

14. The powers of the first appellate Court while deciding the first appeal are indeed well defined by various judicial pronouncements of this Court and are, therefore, no more res integra.

15. As far back in 1969, the learned Judge - V.R. Krishna Iyer, J (as His Lordship then was the judge ofKerala High Court) while deciding the first appeal under Section 96 of the CPC inKuri(ln C/t(lcko vs.

V(lrkey Ousep/1, AIR 1969 Kerala 316, reminded the first appellate court of its duty to decide the first appeal. In his distinctive style of c writing with suotle power ofexpression, the learned judge held as under:

"1. The plaintiff, unsuccessful in two Courts, has come up here aggrieved by the dismisal of his suit which was one for declaration of title and recovery of possession. The defendant disputed the plaintiff's title to the property as also his possession and claimed both in himself. The learned M!lnsif, who tried the suit, recorded findings against the plaintiff both on title and possession. But, in appeal, the learned Subordinate Judge disposed of the whole matter" glibly and briefly, in a few sentences.

2. An appellate court is the final Court of fact ordinarily and therefore a litigant is entitled to a full and fair and independent consideration of the evidence at the appellate stage. Anything less than this is unjust to him and I have

no doubt that in the present case tbe learned Subordinate Judge has fallen far short of what is expected of him as an F appellate Court. Although there is furious contest between the counsel for the appellant and for the respondent, they appear to agree with me in this observation ..... "

(Emphasis supplied)

16. This Court also in various cases reiterated the aforesaid principle and laid down the powers of the appellate Court under Section 96 of the Code while deciding the first appeal.

17. We consider it apposite to refer to some of the decisions.

18. In Smuoslt H(lz(lri vs. Puruslwft(lm Tiw(lri (Dece(lsed) by H

L.Rs. (200 I) 3 SCC 179, this Court held (at pages 188-189) as under:

" ......... the appellate court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all. the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court ...... while reversing a finding of fact the appellate court must come into cl"; ise quarters with the reasoning assigned by the trial coo.rt and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it ............ "

19. The above view was followed by a three-Judge Bench decision of this Court in Mad/1ukar & Ors. v. Sa11gram & Ors. ,(200 I) 4 SCC 756, wherein it was reiterated that sitting as a court of first appeal, it is the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings.

20. In H.K.N. Swami v. Irshad Basith,(2005) JO SCC 2./3, this Court (at p. 244) stated as under: (SCC para 3)

"3. The first appeal has to be decided on facts as well as on law. In the first appeal parties have the right to be heard both on questions of law as also on facts and the first appellate court is required to address itself to all issues and decide the case by giving reasons. Unfortunately, the High Court, in the present case has not recorded any finding either on facts or on law. Sitting as the first appellate court it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording the finding regarding title."

21. Again in Jaga11m1th v. Arulappa & Anr .. (2005) 12 SCC 303, while considering the scope of Section 96 of the Code of Civil Procedure, 1908, this Court (at pp. 303-04) observed as follows: (SCC H para 2)

"2. A court of first appeal can reappreciate the entire A evidence and come to a different conclusion ......... "

22. Again in B. V Nageslt & Anr. vs. H. V. Sreenivasa Murthy, (20 I 0) 13 SCC 530, this Court takingnote of all the earlier judgments of this court reiterated the aforementioned principle with these words:

"3. How the regular first appeal is to be disposed of by the B appellate court/High Cou!t has been considered by this Court in various decisions. Order 41 CPC deals with appeals from original decrees. Among the various rules, Rule 31 mandates that the judgment of.the appellate court shall state:

(a) the points for determination;

(b) the decision thereon;

(c) the reasons for the decision; and

(ti) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled.

4.The appellate court has jurisdiction to reverse or affirm D the findings of the trial court. The first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with E

the contentions put forth, and pressed by the parties for decision.of the appellate court. Sitting as a court of first appeal, it was the duty of the High Court to deal with all the i_ssues and the evidence led by the parties before recording its findings. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself

to aft the issues of la.w and fact and decide it by giving reasons in support of the findings. (Vide Suntosli Huzari v.

Puruslwttam Tiwari, (2001) 3 SCC 179 at p. 188, para 15 G and Mudltukur v. Sungrum, (2001) 4 SCC 756 at p. 758, para 5.)

5. In view of the above salutary principles, on going through the impugned judgment, we feel that the High Court has failed to discharge the obligation placed on it as a first

H .

appellate court. In our view, the judgment under appeal is cryptic and none of the relevant aspects have even been noticed. The appeal has been decided in an unsatisfactory manner. Our careful perusal of the judgment in the regular first appeal .shows that it falls short of considerations which are expected from the court of first appeal. Accordingly, without going into the merits of the claim of both parties, we set aside the impugned judgment and decree of the High Court and remand the regular first appeal to the High Court for its fresh disposal in accordance with law."

23. The aforementioned cases were reli_ed upon by this Court while reiterating the same principle in Slu/e Bunk of Incliu & Anr. vs.

Emmsons Internulional LlcL & Anr., (2011) 12 SCC 174.

24. An appeal under Section 173 of the M.V. Act is essentially in the nature of first appeal alike Section 96 of the Code and, therefore, the High Court is equally under legal obligation to decide all issues arising in the case both on facts and law after appreciating the entire evidence. [See Nulional Insurance Company Lid. vs. Naresh Kumur & Ors. ((2000) 10 SCC 198 and Stule of Punjub & Anr. vs. N11vtleep Kuur & Ors. (2004) 13 SCC 680].

25. Coming now to the facts of the case in hand, we consider it appropriate to reproduce the whole order of the High Court infra:

"The only ground urged is that there was contributory negligencf also on the part of the deceased and therefore, the compensation awarded should have been reduced proportionately. We have perused the site plan and we find that the accident occurred on a crossing. The site plan clearly indicates that the offending vehicle namely the Bus was on the right side of the road left no scope for the deceased who was traveling on the left side of the road.

Consequently, we are of the opinion that there was no contributory negligence on the part of the deceased at the time when the accident occurred. The appeal fails and is dismissed.'

26. Mere perusal of the afore-quoted order of the High Court would show that the High Court neither set out the facts of the case of the parties, nor dealt with any of the submissions urged,, nortook note of

the grounds raised by the appellant and nor made any attempt to appreciate A the evidence in the light of the settled legal principles applicable to the issues arising in the case to find out as to whether the award of the.

Tribunal is legally sustainable or not and if so, how, and ifnot, why?.

27. As observed supra, as a first appellate Court, it was the duty of the High Court to have decided the appeal keeping in view the powers conferred .on .it by the statute. The impugned judgment also does not, in our opinion, satisfy the requirements of Order XX Rule 4 (2) read with Order XL! Rule 31 of the Code which requires that judgment shall contain a concise statement of the case, points for determination, decisions thereon and tlie reasons. It is for this reason, we are unable to uphold the impugned judgment of the High Court.

28. The appeal thus succeeds and is accordingly allowed in part.

The impugned judgment is set aside.

29. As a necessary consequence, the case is remanded to the High Court for deciding the appeal afresh on merits, keeping in view the Dprincile oflaw laid down by this Court quoted above.

30. However, we make it clear that we have not applied our mind to the merits of the issues involved in.the case and hence the High Court wouM decide the appeal strictly in accordance with law on merits uninfluenced by our observations. Needless to observe, the High Court will do so after affording an opportunity of hearing to both the parties.

We request the High Court to decide the appeal preferably within six months. No costs.

Kalpana K. Tripathy Appeal partly allowed.