KAILASH CHANDRA JENA Vs. KUTABUDDIN

JUDGEMENT

(1.) THIS appeal is filed by the claimant questioning the correctness of the finding recorded by the Member, Second M.A.C.T., Cuttack in Misc. Case No.757 of 1991 on the contentious issue nos.3, 4 and 5 rejecting the claim petition holding that the claimant has not proved the injury sustained on account of the road traffic accident. Against the said rejection, this appeal is filed contending that the findings recorded on the contentious issue nos.3, 4 and 5 are erroneous in law as the learned Member of the Tribunal has not properly appreciated the facts and legal evidence on record while recording the finding. Therefore, learned counsel for the claimant -appellant has requested this Court for setting aside the same and to award just and reasonable compensation instead of remanding the matter to the Tribunal applying the legal principle laid down by the Supreme Court in the case reported in the case of Gujarat Steel Tubes Ltd., etc. etc. v. Gujarat Steel Tubes Mazdoor Sabha and others, 1980 AIR(SC) 1896wherein the Apex Court at paragraph 79 has held that the Writ Court can exercise its jurisdiction as that of the original jurisdiction and pass appropriate award. Since this is an appeal, which is the continuation of the original jurisdiction, this Court can exercise original jurisdiction as there is evidence on record. Therefore, there is no need to remand the matter to the M.A.C.T. for its reconsideration. On the other hand, it can pass appropriate order. Further, learned counsel submits that the accident had taken place in the year 1991 and remanding this case to the M.A.C.T. after 21 years later justice will suffer and the appellant will be put to immense hardship. Learned counsel submits that the M.V. Act confers statutory right upon the appellant under Section 166 of the M.V. Act for claiming compensation either for injury or the dependence on account of the death under the above provisions of the Act, which is a social piece of legislation to mitigate the hardship, therefore, just and reasonable compensation has to be awarded by the Tribunal in favour of the appellant. The Tribunal is a special forum constituted under the statutory provisions of the M.V. Act with the avowed object to see that the claims of the parties are determined as expeditiously as possible, but not later than six months. Having regard to the aforesaid objects facts of the case, learned counsel for the appellant submitted that the remand order to the Tribunal after setting aside the impugned judgment is not justified and therefore requested this Court to award just and reasonable compensation in favour of the appellant by allowing this appeal.

(2.) LEARNED counsel Mr Sinha appearing on behalf of opp. party no.2 submits that rejection of the claim petition is perfectly legal and valid as the Tribunal being the fact finding authority has recorded the finding of fact on proper appreciation of facts and legal evidence on record, which cannot be substituted by this Court in exercise of its appellate jurisdiction unless the appellant shows that the findings are erroneous and error in law. Further, Mr Sinha submits that in the medical certificate issued by the Government doctor under the relevant column of the cause of injury it is not mentioned as "road traffic accident". Therefore, this important aspect of the matter has been taken into consideration by the learned Member of the Tribunal in coming to the conclusion on facts and evidence on record that the claimant has not sustained injury on account of road traffic accident. Therefore, learned Member of the Tribunal while coming to the conclusion on fact has answered the contentious point that the claimant has not sustained injury on account of road traffic accident and, therefore, he is not entitled to compensation. Further, it is submitted by the learned counsel that if this Court comes to the conclusion that findings and reasons recorded by the Tribunal on the contentious issues framed in the impugned judgment are erroneous and contrary to the legal evidence on record, the matter may be remanded to the Tribunal with liberty to the parties to adduce evidence in support of their respective claim and counter claim and to decide the case on merit. Therefore, learned counsel for the Insurance Company prayed for dismissal of the appeal.

(3.) WITH reference to the aforesaid rival legal contentions, the following points would arise for consideration by this Court.