PANNALAL AND 4 OTHERSversusSHIV KISHORE AND 3 OTHERS

         HIGH COURT OF JUDICATURE AT ALLAHABAD
                 FIRST APPEAL FROM ORDER No. - 1359 of 2024

Pannalal And 4 Others
                                                         .....Appellant(s)
                                   Versus

Shiv Kishore And 3 Others
                                                       .....Respondent(s)

Counsel for Appellant(s)        : Ami Tandon, Sr. Advocate
Counsel for Respondent(s)       : Jaidev Singh Awana, Ravi Prakash
                                  Singh, Sushil Kumar Mehrotra

Court No. - 50
                      HON'BLE PANKAJ BHATIA, J.

1. Heard Sri Ami Tandon, learned Counsel for the appellants-claimants as
well as Sri Sushil Kumar Tiwari, learned Counsel for the respondents
no.1 and 2 and Sri S.K. Mehrotra, learned Counsel for the respondent
no.3.

2. The present appeal has been filed by the appellants against the award
dated 28.05.2024 whereby the claim preferred by the appellants came to
be dismissed.

3. The facts that emerge from the pleadings on record are that a claim
petition was filed alleging that one Subhash Chandra Vimal left home on
motorcycle bearing No.UP 16C 4325 and Sauraj Singh on Scooter
bearing No.UP 14J 5212. They were going almost together at about 7:45
PM, when the scooter of the deceased met with an accident with Dumper
HR 38B 6688, which was driven by the driver rashly and negligently,
which resulted in substantial injury to Subhash Chandra Vimal and
subsequent death.

4. It is argued that in connection to the said accident, an FIR was got
registered as FIR No.158 of 2002, in which the vehicle was transcribed as
HR38-D 1149. Subsequently, it was said that the vehicle number was not
HR-38D 1149 and it was actually HR 38D 6688. In the said backdrop, the
claim petition was preferred. The witnesses were examined, which
included PW-2, who was going on the other Scooter along with the
deceased. In his testimony, he deposed that the number of the vehicle was
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HR 38D 1149, the number which was mentioned in the FIR. The
appellants claimed that the number of the vehicle was wrongly recorded
and the correct number was HR 38D 6688, which fact is also evident from
the police report, Paper No.9-Ga.

5. It is argued by the Counsel for the appellant that the abovesaid fact was
pleaded before the Tribunal, which resulted in the Tribunal passing an
order on 27.07.2007 wherein the Tribunal was of the view that in view of
the facts pleaded and to come to the correct position, it was essential to
summon the SHO, Sector-39, NOIDA; the officers of the RTO and the
writer of the technical report in respect of the vehicle, which was involved
in the accident and was subsequently released by the police authorities.
The said order came to be challenged by the Insurance Company in Writ-
C No.43781 of 2007, in which, by means of the order dated 23.09.2024,
this Court entertained the writ petition and stayed the effect and operation
of the order dated 27.07.2007. It is informed that subsequently vide order
dated 23.09.2024, the writ petition was dismissed as infructuous,
however, prior to the said date, the award dated 28.05.2024 has been
passed based upon the oral and other evidence available before the
tribunal. The relevant evidence, which could have thrown the light on the
correct facts recorded in the order dated 27.07.2007 could never be
summoned in view of the protection granted by this Court.

6. A perusal of the document, which is Paper-9-Ga on record, reveals that
the vehicle in question was identified as HR38D 6688. The veracity of the
said report and the writer of the said report could never be summoned in
view of the interim order passed by this Court.

7. As the findings of fact have been recorded on the evidence, which are
on record, without considering the relevant evidence, which could have
thrown lights on the factual aspect as pleaded inter se in between the
parties. Clearly the finding based upon the evidence on record without
considering the material evidence which could have thrown light makes
the award perverse.

8. The submission of the Counsel for the respondents that the said order
was passed by the Tribunal on 27.07.2007 suo motu and not on the
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                                    application of the claimants and thus, the said order is erroneous, merits
                                    rejection. It is fairly well settled that the Tribunals are duty bound to take
                                    into consideration all the facts and evidence enable them to reach to a
                                    conclusion for awarding just and fair compensation. The said power is
                                    also vested in the Tribunal by virtue of Rule 215 of the U.P. Motor
                                    Vehicle Rules, 1998.

                                    9. Considering the fact that the material evidence could never be
                                    summoned on account of an interim order passed by this Court, the order
                                    impugned dated 28.05.2024 cannot be sustained and is set aside.

                                    10. The matter is remanded back to the Tribunal to consider the matter
                                    and pass fresh order after summoning the evidence as indicated in the
                                    order dated 27.07.2007 and after giving the opportunity to the claimant to
                                    cross-examine the owner of the vehicle in the light of the said document
                                    afresh. The award shall be passed with all expedition as the matter is very
                                    old.

                                    11. The appeal stands allowed in the above terms.

                                    12. It will be open to the Insurance Company as well as the owner of the
                                    vehicle to take such steps to protect their rights, as may be advised under
                                    law.



                                                                                              (Pankaj Bhatia,J.)
                                    May 7, 2026
                                    akverma




Digitally signed by :-
ASHOK KUMAR VERMA
High Court of Judicature at Allahabad