Uttarakhand High Court
AO/471/2010 of SMT SUNITA MALKANI and OTHERS Vs RITESH JOSHI and OTHERS on 28 December 2017
HIGH COURT OF UTTARAKHAND AT NAINITAL AO No. 471 of 2010 Smt. Sunita Malkani and others ……..…Appellants Versus Ritesh Joshi and others ………Respondents Mr. Dharmendra Barthwal, Advocate for the appellants. Mr. Neeraj Upreti, Advocate for respondent nos. 1
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IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
AO No. 471 of 2010
Smt. Sunita Malkani and others ……..…Appellants
Versus
Ritesh Joshi and others
………Respondents
Mr. Dharmendra Barthwal, Advocate for the appellants. Mr. Neeraj Upreti, Advocate for respondent nos. 1 and2. Mr. K.K. Sah, Advocate for respondent no. 3.
Hon’ble Lok Pal Singh, J.
Present appeal has been preferred against the judgment and award dated 20.12.2010 passed by MACT/ Addl. District Judge/ I F.T.C., Nainital in claim petition no. 235 of 2007
2. Facts in brief are that claim petition was filed by the appellants/claimants before the Tribunal with the averments that on 30.08.2007, husband of appellant no. 1 late Shivdutt was traveling from Haldwani to Pithoragarh in Maruti car bearing registration no. UA05-0253, when the aforesaid vehicle reached at village Makdau, the vehicle met with an accident due to rash and negligent driving of the driver of the vehicle on which two persons were died which includes husband of appellant no. 1. The husband of appellant no. 1 was Chief Assistant at R.T.O. Pithoragarh and was also famous as Tree Protector and was earning Rs. 1,23,705/- per annum and was a tax payer. The claim petition was filed by the claimants for enhancement of compensation.
3. The claim petition was contested by the respondents and Insurance Company. Both of them filed their written statements.
4. The learned Tribunal framed the following issues on the pleadings of the parties:-
(i) Whether on 30.08.2007, when Shivdutt was going in maruti car bearing registration no. UA05/0253 from Haldwani to Pithoragarh than the vehicle met with an accident due to rash and negligent driving of the driver in village Makdau at Tok Kalaad due to which Shivdutt received serious injuries and died on the spot?
(ii) Whether late Shivdutt comes within the category of third party or not?
(iii) Whether on the date of incident the alleged vehicle was having the valid papers and driver of the vehicle was having the valid driving license?
(iv) Whether the claimants are entitled for any claim. If so, what relief/compensation they are entitled?
5. Oral and documentary evidence was adduced on behalf of the claimants. On behalf of the appellant Smt. Sunita Melkani examined as P.W.1. On the other hand, on behalf of the respondents Ritesh Joshi examined as D.W.1 and B.R. Chanyal examined as D.W.2.
6. The tribunal after recording evidence of the parties decided all the issues against the claimants and dismissed the claim petition.
7. During the pendency of the appeal, claimants/ appellants have filed documentary evidence before this Court to adduce the additional evidence and time for rebuttal is granted to the respondents. Counsel for the parties submitted that since voluminous documents have been filed by the claimants/appellants, therefore evidence is required to prove all the documents.
8. Learned counsel for the parties submitted that in view of the fact that the documentary evidence filed by the claimants/appellants have been allowed to be taken on record, and the documentary evidence adduced by the appellant is required to be proved by the oral evidence, in such circumstances, matter may be remanded to the Tribunal concerned, so that the appellants may adduce the oral evidence and insurance company may also file documentary evidence or lead oral evidence in support of its case.
9. Considering the facts and circumstances of the case and the submissions advanced on behalf of the learned counsel for the parties, this Court is of the view that since oral evidence is require to prove the case, and oral evidence cannot be taken in an appeal before this Court, thus the impugned judgment and award dated 20.12.2010 is hereby set aside. The appeal is allowed. Matter is remanded to the MACT concerned.
10. The learned Tribunal is directed to allow the parties to lead their respective documentary and oral evidence in support of their case, and after affording opportunity of hearing to the parties, the learned Tribunal will decided the claim petition preferably within a period of four months from the date of production of certified copy of the judgment.
10. Let lower court records be send back to the Tribunal concerned. The parties shall appear before the court concerned on 01.02.2018.
(Lok Pal Singh, J.) 28.11.2017
Parul