P RAJESWARI Vs. HOTEL IMPERIAL

JUDGEMENT

(1.) The Tribunal has observed in the award under appeal that from the evidence of R.W. 1 it appeared that only on 1-8-1977 the police decided to proceed against the car MSM 3499. Therefore the Tribunal found that the appellants herein have not established that it was car MSM 3499 that was involved in the accident and answered the said point against the appellants herein and in favour of the respondents herein. Then the Tribunal proceeded to fix the quantum of compensation and arrived at the compensation that is payable to the appellants herein at Rs. 5,000/-. In view of the Tribunal's finding under the first issue, the Tribunal dismissed the petition filed by the petitioners/appellants herein before it. P.W. 1 Parthasarathy, P.W. 2 Chakrapani, P.W. 3 Balakrishnan and P.W. 4 Dharman were examined on the side of the appellants herein before the Tribunal and Ex. A-1 record sheet of the deceased Bhaskaran dated 26-3-1978 issued by the Elementary School, Pallavaram: Ex. A death register extract issued by the Madras Corporation in respect of the deceased Bhaskaran dated 21-9-1977; and Ex. A-3 post-mortem certificate issued by the Assistant Professor of Forensic Medicine, Madras Medical College in respect of the deceased were also filed on their side. R.W. 1 Hameed, Manager of the first respondent was examined on the side of the respondents and Ex. B-1 letter dated 6-8-1977 written by the first respondent to the Sub-Inspector of Police, Pallavaram and Ex. B-2 notice dated 2-8-1977 sent by the Sub-Inspector of Police to the first respondent herein were also filed on their side. On the evidence thus available on record, the Tribunal had come to the conclusion as mentioned above. Aggrieved by the above decision of the Tribunal, the petitioners have come forward with this appeal.

(2.) The points that arise for consideration in this appeal are : (i) Whether the liability of the owner of the vehicle in question which had hit the deceased Bhaskaran and caused his death as a result of the accident on a subsequent day after the accident had been proved beyond all reasonable doubt? (ii) If so, what is the quantum of compensation that is payable by the person concerned or the company concerned to the persons who are eligible for the compensation so ascertained?

(3.) Points Nos. (i) and (ii) :- Even at the outset it has to be mentioned that in the instant case required materials for coming to the conclusion regarding the liability for the accident were not placed before the Tribunal by either side. This does not mean that the Tribunal is bereft of powers for getting at the truth of the claim as well as regarding the person at fault who drove the vehicle. In the instant case it is submitted on behalf of the appellants herein that both the cars which are accused of having committed the collision belong to one and the same person viz., the first respondent herein. But that does not mean that a finding to that effect can be given by the Tribunal. The Tribunal is obliged to find out from the evidence available or to get at the evidence as provided under S.165 of the Evidence Act or give further opportunity for either side to produce necessary evidence, such as documents that were prepared during the time of investigation in the instant case and come to a conclusion regarding the liability. It is common ground that prosecution was launched against the owner of the vehicle bearing registration No. MSM 3499. Prima facie it is the driver of this vehicle that could be pointed out and held as the person responsible for the accident. Whether the accident was the one which was exclusively falling on the shoulders of the driver of the said vehicle or contributed to a certain extent by the deceased himself darting at the place of occurrence at the critical point of time has to be taken into consideration also by the Tribunal, because contributory negligence whether pleaded or not is the one that has to be taken note of by the Tribunal suo motu and a finding regarding that aspect has to be given. In view of the above fact that all the above features are not properly appreciated and there is no proper exercise of judicial discretion by the Tribunal by applying the provisions of the Evidence Act or the procedural law of the land, this Court has no other alternative than to set aside the award of the Tribunal under appeal and remit the matter back to the Tribunal for fresh disposal of the claims in accordance with law and in the light of the observations made above. It is needless to say that only after the ascertainment of the liability of the accident, the quantum of compensation can be ascertained?