Deepak Sharma v. Cholamandalam MS Gen Ins Co

1. The present appeal preferred by the claimants, under section 173 of Motor Vehicles Act, 1988 (‘the Act’) seeks to assail the award dated 17.08.2022 passed by the learned Motor Accident Claims Tribunal (‘the Tribunal). Vide the impugned award the learned Tribunal has, after closing the right of the appellant to lead evidence, proceeded to pass the impugned award by awarding compensation of Rs.1,58,000/alongwith interest @ 6% p.a. by analysing the material already available on record.

2. Before dealing with the rival submissions of the parties it would be appropriate to deal with brief factual matrix. It is the appellant’s case that on 14.10.2021 at about 11:35 am while the appellant was returning from the house of his employer on a motorcycle bearing registration no. DL-13-SM-8904, he was hit by a car, insured by respondent no. 1, bearing registration no. DL-10-CE- 2557 driven by respondent no.2 in a rash and negligent manner. As a result of the accident the appellant sustained grievous injuries and had to undertake treatment at Deen Dayal Upadhayay Hospital and thereafter at St, Stephen's Hospital. An FIR having been registered against respondent no[2], a Detailed Accident Report (DAR) pertaining to the accident was filed by the investigating officer on 13.01.2022 and was treated as a claim petition under section 140 and 166 of the Act.

3. The said claim petition was opposed by the respondents by way of a written statement filed by respondent no.1, wherein while admitting that the offending vehicle was insured with it, the respondent no.1 filed its legal offer of Rs. 15,000/-. On 21.04.2022 the learned Tribunal framed issues and adjourned the matter to 17.08.2022 for recording the appellant’s evidence.

4. On 17.08.2022, even though the learned counsel for the appellant pressed its application for constituting of medical board for determining the extent of the appellant’s physical disability, the learned Tribunal, after noticing that the affidavits of evidence had not been filed by the appellant, closed his right to lead evidence and thereafter fixed the matter in the post lunch session for arguments. In the post-lunch session the learned Tribunal passed the impugned award.

5. Being aggrieved, the present appeal has been preferred by the claimant.

6. Learned counsel for the appellant submits that the learned Tribunal has erred in closing the right of the appellant to lead evidence by observing that the appellant had abandoned the proceedings. She submits that the learned Tribunal had closed the right of the appellant to lead evidence on 17.08.2022 in the pre-lunch session without appreciating the fact that the said date was the first date for leading of evidence by the appellant. Furthermore, even on the said date an application filed by the appellant seeking his examination by a medical board was pending consideration. She, therefore, prays that the impugned award be set aside and the matter be remanded back to the learned Tribunal for fresh adjudication of the appellant’s claim.

7. On the other hand, learned counsel for the respondent seeks to support the impugned award by urging that once the appellant did not lead any evidence the learned Tribunal was justified in determining compensation for the appellant on the basis of evidence already on record. He is, however, not in a position to dispute the fact that the matter was listed for the appellant’s evidence for the first time on 17.08.2022, on which date despite the appellant being represented through counsel and having moved an application for seeking his medical examination for ascertaining the extent of his physical disability, the learned Tribunal closed the right of the appellant to lead evidence and proceeded to pass the impugned award.

8. In order to appreciate the rival submissions of the parties, it would be necessary to note in extenso the order dated 21.04.2022 as it is vide this order that the learned Tribunal had, after framing issues, fixed the matter for 17.08.2022 for leading of appellant’s evidence. The said order reads as under:- “Deepak Sharma vs. Jasveen Kaur Saluja & Ors. MACT No.37/2022 21.04.2022. * * * * * On the basis of the pleadings of the parties, the following issues are settled:-

1. Whether the injured/petitioner Deepak Sharma had sustained Simple injury in Road Traffic Accident which took place on 14.10.2021 at about 11:35 AM in front of House No. 16/2 East Patel Nagar, Delhi? (OPP).

2. Whether the injuries were caused to the petitioner on account of rash and negligent driving of the vehicle bearing no. DL-10CE-2557 driven by respondent no. 1 Jasveen Kaur Saluja ? (OPP)

3. Whether the vehicle bearing no. DL-10CE-2557 was not involved in the alleged accident ? (OPRs)

4. Whether injured/petitioner is entitled to compensation? Is yes, to what extent? (OPP)

5. Relief Be listed for petitioner's evidence on 17.08.2022. All relevant documents be placed on record by the injured within four weeks from today with advance copy to the respondents. List of witnesses be filed within six weeks from today. Affidavits of evidence be filed within four weeks thereafter with advance copy and k counsel for the respondents.”

9. In terms of the aforesaid order dated 21.04.2022, the matter was no doubt listed on 17.08.2022 for appellant’s evidence but it needs to be noted that this was the first date which was fixed for leading of evidence. The learned Tribunal, however, proceeded to close the right of the appellant to lead evidence on the very same date and simultaneously proceeded to pass the impugned award. It may be apposite to note the relevant extracts of the order passed in the prelunch session of 17.08.2022, vide which the right of the appellant to lead evidence was closed. The same reads as under:- “Today the case was listed for Petitioner's Evidence. Neither any list of witnesses filed nor any affidavit of evidence has been filed. Even the petitioner Deepak Sharma has not appeared to submit himself for examination. This being the background, the evidence of the petitioner is hereby closed. In so far as the respondents no. l and 2 are concerned, none has appeared on their behalf. Ld. Counsel for the respondent no.3 Insurance Company submits that since the injured/ petitioner Deepak Shanna has failed to adduce any evidence, the Insurance Company does not wish to lead any evidence which may be closed. He further submits that the petitioner had handed over to him his medical bills as well as the payment receipts which are collectively Ex.CX-1. According to the Ld. Counsel, in addition to the Legal Offer of Rs.15,000/- the Insurance Company is ready and willing to give the payment of the additional medical bills in respect of which the receipts have been placed on record. He also submits that the Insurance Company has already filed its Reasoned/Legal Offer on 21.02.2022 to which the petitioner not responded till date. He requests that the petitioner having failed to respond to the Reasoned/ Legal Offer, the present inquiry may be Disposed Off as per the Central Motor Vehicles Rules (Fifth Amendment) Rules, 2022. I have considered the statement and the submissions made before me in view of which the evidence of the respondents is closed. Be listed for arguments at 2:00 PM.”

10. Having closed the right of the appellant to lead evidence, the learned Tribunal proceeded to pass the impugned award on the very same day. What needs to be noted is that even though the learned Tribunal was conscious of the fact that this was the first date on which the appellant was required to lead his evidence, it still proceeded to not only close the evidence of the appellant but also passed the impugned award without even referring to the appellant’s pending application for his medical examination, so as to enable the extent of his permanent disability. At this stage, a reference may also be made to the relevant extracts of the impugned award which read as under:- “(6) After framing the issues on 21.04.2022, the case was listed for Petitioner's Evidence with directions that the list of witnesses be filed within six weeks and affidavits of evidence within four weeks thereafter. Despite grant of opportunity the petitioner has not filed any list of witnesses nor any affidavit of evidence has been filed nor the petitioner had appeared. Here, I may also note that the matter was listed before the Lok Adalat on 14.05.2022 but the matter could not be settled since none had appeared before the Lok Adalat. Keeping in view the conduct of the petitioner who appeared to have abandoned the proceedings, the evidence of the petitioner was closed by this Court/ Tribunal”