1. This appeal has been preferred against the judgment and award dated 25.10.2002 passed by the Motor Accident Claims Tribunal [Aux.] Veraval in M.A.C.P. No. 11 of 2001, whereby the said claim petition was dismissed.
2. The facts in brief are that on 16.11.2000, while Anjaliben was going on a Scooter bearing no. GJ11K2562 as pillion rider, driven by opponent no. 1, when they reached near Karadiya Boarding, near speed breaker, account of rash and negligent driving, Anjaliben was thrown out from the scooter, as a result of which, Anjaliben sustained severe injuries and succumbed to the injuries. The legal heirs of the deceased filed claim petition, which came to be dismissed, by way of the impugned award. Being aggrieved by the said order, the appellantsclaimants have preferred the present appeal.
3. It has been mainly contended on behalf of the appellants that the Tribunal has wrongly considered the document at Exhibit73, though it clearly established that the accident is arisen out of the use of the Scooter bearing no. GJ 11K2526. The learned counsel for the appellants further submitted that the Tribunal has rejected the claim petition mainly on the ground that the FIR is lodged after nine days. In support of his say, he has placed reliance on the various decisions of the Hon'ble Apex Court and this Court in the case of Hiraben Mangabhai v. Maganbhai Somabhai 1997(2) GLR 1704, in the case of Bimla Devi & Ors. v. Himachal Road Transport Corpn. & Ors. AIR 2009 SC 2819, in the case of Saroj & Ors., v. Het Lal & Ors. (2011) 1 SCC 388 and in the case of Ravi v. Badrinarayan & Ors. 2011 ACJ 911.
4. The learned counsel for the respondent no. 2 was not in a position to controvert the said position and submitted that the impugned award passed by the Tribunal is just and proper.
5. Heard learned counsel for the parties. The contention raised by the appellant is required to be accepted inasmuch as the accident occurred on 16.11.2000 out of the use of the Scooter bearing no. GJ11K2562 and FIR in connection with the said accident was filed on 25.11.2000. The above submission made on behalf of the appellant has merit, and, therefore, the Tribunal ought not to have dismissed the claim petition. In the present proceeding, the Tribunal has not properly considered the document at Exhibit73 and therefore, it would be appropriate that the Tribunal adjudicates the issue as to whether the accident has arisen out of the vehicle bearing no. GJ11L2562. Hence, the matter is required to be remanded to the Tribunal concerned.
6. In view of the above, the appeal is partly allowed. The impugned award dated 25.10.2002 is quashed and set aside and the matter is remanded to the Tribunal concerned only for the limited purpose of adjudicating as to whether on the date of accident, the vehicle in question was involved or not. Hence, the Tribunal concerned is directed to dispose of the same within a period of ONE YEAR from the receipt of writ of this order. The appeal stands disposed of accordingly. No order as to costs.
[K.S. JHAVERI, J.] /phalguni/