Court No. - 27
Case :- FIRST APPEAL FROM ORDER No. - 1135 of 2016 Appellant :- H.D.F.C. Ergo General Insurance Co. Ltd.
Respondent :- Smt. Sushma And 7 Others Counsel for Appellant :- S.K. Mehrotra Counsel for Respondent :- Rakesh Kumar Rathore
Hon'ble Saral Srivastava,J.
Heard Sri Archit Mehrotra, learned counsel for the appellant and Sri Sanjeev Kumar, Advocate holding brief of Sri Rakesh Kumar Rathore, learned counsel for respondent nos. 1 to 6.
The present appeal has been preferred by the appellant on the ground that the claim petition has been instituted under Section 166 of the Motor Vehicles Act, but the Tribunal has not returned any finding in respect of negligence of driver of offending vehicle Maruti Car No. U.P. 84 F 0807 (hereinafter referred as 'offending vehicle') and thus, the Tribunal has erred in allowing the claim petition.
Per contra, learned counsel for the respondents submits that PW-1 Smt. Sushma wife of the deceased and PW-2 Krishna Kumar, who were the eye witnesses of the accident have stated in their testimony that the driver of the offending vehicle was driving the offending vehicle rashly and negligently and despite he was asked by the occupants of the car to drive cautiously and carefully, he did not pay any heed and the accident had occurred due to the sole negligence of driver of the offending vehicle.
He submitted that from the testimony of PW-1 Smt. Sushma and PW-2 Krishna Kumar, which has not been rebutted by the insurance company, it is evident that there was enough evidence on record which proved that the driver of the offending vehicle was negligent in driving the offending vehicle which caused the accident.
He further submits that even if there is no finding in respect of negligence, this Court has jurisdiction to correct the finding of the Tribunal under Order 41 Rule 33 of C.P.C. in the interest of justice. Further submission is that there is enough evidence on record which proved negligence of driver of offending vehicle in the accident, as such it is not a fit case where this court should remand the matter back to the Tribunal to decide afresh the issue of negligence.
I have considered the rival submissions of the parties and perused the record.
The Tribunal in deciding the issue no. 1 considered in detail the testimony of PW-1 Smt. Sushma and PW-2 Krishna Kumar, eye witnesses of the accident, who had deposed before the Tribunal that the accident had occurred due to rash and negligent driving of the driver of offending vehicle. Though, the Tribunal has noticed this fact in deciding the issue no. 1 and issue no. 4, but it appears that the Tribunal did not record any finding on issue of negligence. Since, there is sufficient evidence on record in respect of negligence of driver of the offending vehicle and evidence of the claimants-respondents in respect of negligence of driver of the offending vehicle have not been rebutted by the appellant-insurance company, therefore, considering the apathy of claimants in the interest of justice, this Court is not inclined to remand the matter back on the technical ground that the court below has not recorded any finding in respect of negligence of driver of offending vehicle. This Court on the basis of evidence on record is of the considered opinion that the accident had occurred due to negligence of offending vehicle. The submission of the learned counsel for the appellant is not accepted.
For the reasons given above, the appeal lacks merit and is, accordingly, dismissed. There shall be no order as to costs.
Order Date :- 25.2.2019 Ishan