SMT SUDHA PADMANABHAN Vs. KARAM SINGH

JUDGEMENT

(1.) By way of the present appeal the appellants seek to challenge the impugned Award dated 7.5.2007 whereby the claim petition filed by the appellants was dismissed by the Tribunal. To deal with the contention raised by the parties it would be appropriate to give brief summary of the present case.

(2.) Mr. R.K. Saini, counsel for the appellants contended that the order passed by the Tribunal is not only illegal but perverse as the Tribunal has failed to appreciate that the appellants had taken due care in summoning the eye witness so as to establish factum of negligence on the part of the driver of the offending vehicle. The contention of counsel for the appellants is that the appellants were diligent enough to take all steps as were expected of them and if there was any fault on the part of the Tribunal to take all permissible steps as provided under law to enforce the attendance of a witness, the appellants cannot be made to suffer. To strengthen his arguments further, the counsel contended, that Ms. Urmila Chandel was the eye witness at whose instance the FIR was registered by the concerned police station and whose statement was also recorded under Section 161 of the Criminal Procedure Code and to summon her required steps were taken by the appellant, but she had failed to appear despite having been served. Counsel also invited my attention to the application submitted on behalf of the said witness before the Trial Court wherein request for seeking exemption from her personal appearance was made on the ground of her suffering from back pain. Even in the list of witnesses filed by the appellants/petitioners the name of the said witness was duly mentioned. Counsel thus contended that the Tribunal has not taken steps against the said witness under Section 169 so as to enforce her attendance and for not taking such steps by the Tribunal, the case of the compensation filed by the appellants could not have been dismissed by the Tribunal.

(3.) Per contra, Mr. Pankaj Seth counsel appearing for the respondent insurance company vehemently refuted the said submissions of the counsel for the appellants. Mr. Seth contended that the appellants had acquiesced to the said situation and are, thereforee, estopped to reopen the case at the appellate stage with a view to fill up lacunas and gaps in the evidence. The counsel thus contended that the Tribunal has discussed in great detail the failure on the part of the appellants to prove negligence after placing his reliance on number of judgments including the authoritative pronouncement in Oriental Insurance Co. Ltd. v. Meena Variyal,. Counsel thus contended that after the closure of the evidence of the appellants, the respondent has also led evidence, even written arguments were also filed by the appellants, but nowhere the appellants have agitated the issue of non-summoning of the witness due to the lapse or omission on the part of the Tribunal. Counsel thus contended that the issue cannot be reopened at the appellate stage, when the order passed by the Tribunal has already become final. The counsel further contended that even no separate application has been moved by the appellants to produce additional evidence in the matter and thereforee, also the present appeal filed by the appellant is not maintainable and merits dismissal.