# Janka & Ors v. Akhilesh Kumar Gupta & Ors

- **Citation:** (2015) 3 ILRA 1296
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-11-02
- **Case number:** First Appeal From Order No. 761 of 2013
- **Bench:** Dinesh Maheshwari, Anant Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/janka-ors-v-akhilesh-kumar-gupta-ors-43310
- **Pages:** 3

## Headnote

Motor Vehicle Act-1988-Section-173-claim
petition-dismissal
due
to
want
of
evidence-all the claimants either minor or
blind-fully
dependent
upon
deceasedTribunal acted very haste manner-as
without appointing guardian ad litem after
having affidavit of next friend next very
date closed evidence-held-if the next
friend not prosecuting the case-Tribunal
ought to have appoint guardian ad litem -
but dismissed of claim petition-illegal-seta-side-consequential direction given.
Held: Para-10
It appears that in its haste for disposal,
the Tribunal altogether failed to consider
that the matter related to the claimants
who were shown to be the persons under
disabilities including minors; and if at all
their next friend was found not doing his
duties for prosecution of the matter, the
next friend could have been removed
and guardian ad-litem could have been
appointed for the claimants on the
principles referable to Order XXXII of the
Code of Civil Procedure. The manner of
disposal of the present claim application
by the Tribunal without regard to all the
facts
and
circumstances
has
only
resulted in failure of justice and this
manner of disposal cannot be endorsed.

## Text

1296
 INDIAN LAW REPORTS ALLAHABAD SERIES
APPELATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 02.11.2015
BEFORE
THE HON'BLE DINESH MAHESHWARI, J.
THE HON'BLE ANANT KUMAR, J.
First Appeal From Order No. 761 of 2013
Janka & Ors.
 ...Appellants
Versus
Akhilesh Kumar Gupta & Ors. Respondents
Counsel for the Appellants:
Santosh Kumar Kanaujia
Counsel for the Respondents:
Vaibhav Raj
Motor Vehicle Act-1988-Section-173-claim
petition-dismissal
due
to
want
of
evidence-all the claimants either minor or
blind-fully
dependent
upon
deceasedTribunal acted very haste manner-as
without appointing guardian ad litem after
having affidavit of next friend next very
date closed evidence-held-if the next
friend not prosecuting the case-Tribunal
ought to have appoint guardian ad litem -
but dismissed of claim petition-illegal-seta-side-consequential direction given.
Held: Para-10
It appears that in its haste for disposal,
the Tribunal altogether failed to consider
that the matter related to the claimants
who were shown to be the persons under
disabilities including minors; and if at all
their next friend was found not doing his
duties for prosecution of the matter, the
next friend could have been removed
and guardian ad-litem could have been
appointed for the claimants on the
principles referable to Order XXXII of the
Code of Civil Procedure. The manner of
disposal of the present claim application
by the Tribunal without regard to all the
facts
and
circumstances
has
only
resulted in failure of justice and this
manner of disposal cannot be endorsed.
(Delivered by Hon'ble Dinesh Maheshwari, J.)
1.
This appeal by the claimantsappellants is directed against the judgment
and Award dated 24.05.2013 as made by the
Motor Accident Claims Tribunal (Additional
District Judge, Court No.3), LakhimpurKheri ['the Tribunal'] in Motor Accident
Claim Petition No.124 of 2012 whereby the
Tribunal has proceeded to determine the
relevant issue No.1 on the factum of accident
against the claimants-appellants for want of
evidence; and on that basis, has dismissed
the claim application.
2. The relevant background aspects of
the matter are that the appellant No.1, said to
be a blind lady in 66 years of age and the
appellant Nos.2 and 3, said to be the minors
in about 12 and 9 years of age, preferred the
claim application aforesaid through their next
friend/guardian Shri Sanjay Kumar, who is
son of the appellant No.1 and uncle of the
appellant Nos.2 and 3. It was submitted that
the victim Arvind Kumar died due to the
injuries sustained in the vehicular accident
caused by the vehicle belonging to the
respondent No.1, which was being driven by
the respondent No. 2 and was insured with
the respondent No.3. While stating that the
deceased was a skilled mason and was also
engaged in agriculture, it was submitted that
the claimant-appellant No.1 was the blind
mother of the victim, whereas the claimant
nos.2 and 3 were his minor sons, whose
mother had already expired; and all the
claimants were dependent solely on the
victim. The other factual aspects relating to
the accident and the basis of claim need not
be dilated for the short point involved in this
appeal.
3. The relevant aspects of the matter are
that the claim application was filed on
03.04.2012 by Sanjay Kumar as the next
3 All] Janka & Ors. Vs. Akhilesh Kumar Gupta & Ors.
1297
friend/guardian of the claimants. In the claim
application, issues were framed on 30.03.2013
with reference to the pleadings of the parties.
Issue No.1 was framed on the question if the
victim Arvind Kumar sustained injuries due to
the accident caused by the vehicle belonging
to the respondents and died because of such
injuries. The Tribunal posted the matter for
evidence on 04.04.2013 and then, adjourned
the same to 16.04.2013.
4. On 16.04.2013, an affidavit of the
aforementioned
Sanjay
Kumar,
the
guardian/next friend of claimants, was
filed in evidence; and after filing of this
affidavit, the non-applicants sought time
for cross-examination that was given on
costs of Rs.100/- and the matter was
adjourned to 27.04.2013.
5.
However, on 27.04.2013, nobody
appeared for the claimants and their witness
was also not present and therefore, the
Tribunal proceeded to close down the
evidence of claimants-appellants and then,
heard the matter on 09.05.2013 in the
absence of the counsel for the claimantsappellants; and thereafter, pronounced its
judgment and Award on 24.05.2013.
Obviously, for want of evidence, the
Tribunal proceeded to decide issue No.1
against
the
appellants.
Although
the
Tribunal decided other issues on the liability
of the insurer in favour of the appellants, but
in view of the finding on issue No.1, held
that the claimants-appellants had failed to
establish that the victim expired due to the
alleged accident from the vehicle of the
non-applicants; and therefore, proceeded to
dismiss the claim application.
6. The learned counsel for the
appellants has strenuously argued that the
Tribunal has proceeded rather in an
unnecessary haste and rejected the claim
application without extending reasonable
opportunity to the appellants and without
considering that the claim application was
being maintained by the guardian and
next friend of the claimants-appellants,
who were suffering from physical as also
legal disability. It is submitted that the
claim application deserves to be examined
on merits while extending reasonable
opportunity of evidence to the claimantsappellants. The learned counsel appearing
for the respondent-insurer has duly
supported the Award impugned with the
submissions that the claimants-appellants
having failed to establish the basic facts,
the Tribunal has not committed any error
in rejecting the claim application.
7.

Having
given
thoughtful
consideration to the entire matter, we are
clearly of the view that on the facts and in
the circumstances of this case, the
impugned Award cannot be sustained and
the matter deserves to be remanded to the
Tribunal for consideration afresh.
8. A perusal of the record makes out
that the Tribunal has obviously proceeded
with an extra haste in the matter. The
affidavit in evidence was filed on
16.04.2013 and on the next date, the
evidence was closed for nobody having
appeared for the claimants-appellants.
Thereafter, the matter was heard (in the
absence of claimants) on 09.05.2013 and
was decided on 24.05.2013. In the
process, the Tribunal omitted to consider
that it were a matter of claim for
compensation because of the death of the
victim of a vehicular accident; and the
claimants were said to be the persons
suffering from physical as also legal
disabilities inasmuch as the claimant No.1
was said to be the blind mother of the
victim whereas claimant Nos.2 and 3
1298
 INDIAN LAW REPORTS ALLAHABAD SERIES
were said to be the minor sons of the
victim.
9. Although affidavit in evidence
was indeed filed by the guardian/next
friend of the claimants on 16.04.2013 and
hence he cannot be considered totally
negligent in prosecuting the matter but, if
at all the Tribunal found him wanting in
attending on his duties and in prosecuting
the matter, alternative arrangements could
have been always ordered, rather ought to
have been ordered, by the Tribunal for
protection of the rights of the claimants
who are shown to be the persons with
disabilities.
10.
It appears that in its haste for
disposal, the Tribunal altogether failed to
consider that the matter related to the
claimants who were shown to be the
persons under disabilities including minors;
and if at all their next friend was found not
doing his duties for prosecution of the
matter, the next friend could have been
removed and guardian ad-litem could have
been appointed for the claimants on the
principles referable to Order XXXII of the
Code of Civil Procedure. The manner of
disposal of the present claim application by
the Tribunal without regard to all the facts
and circumstances has only resulted in
failure of justice and this manner of disposal
cannot be endorsed.
11. In the totality of circumstances
of the present case, we are clearly of the
view that the interest of justice demands a
merit hearing of the claim application,
after reasonable opportunity of evidence
to the claimants.
12. Accordingly and in view of the
above, this appeal is allowed in the
manner and to the extent that the
impugned Award dated 24.05.2013 as
passed in M.A.C.P. No.124 of 2012 is set
aside. M.A.C.P. No.124 of 2012 shall
stand restored for consideration by the
Tribunal afresh.
13. The parties through their counsel
shall stand at notice to appear before the
Tribunal concerned on 21.12.2015. It
shall also be required of the next
friend/guardian of claimants, who has
filed affidavit in evidence to remain
present before the Tribunal concerned on
the date of appearance. The Tribunal shall
thereafter proceed with the matter in
accordance with law keeping in view the
observations foregoing.
14. The record of the Tribunal
concerned be sent back immediately with
a copy of this order. No costs.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.11.2015
BEFORE
THE HON'BLE PRAMOD KUMAR SRIVASTAVA, J.
Second Appeal No. 918 of 2015
Smt. Tarawati
Appellant
Versus
Ram Murti Lal Gangwar
...Respondent
Counsel for the Appellant:
Sri Ram Krishna Koli
Counsel for the Respondent:
Sri Ajay Kumar
Specific Relief Act-Section 16 (1)-Suit for
specific performance-decreed by Courts
below-ground
of
non
pleading
of
readiness and willingness in plaint-not
taken before first appellate court-can not
be heard in Second Appeal-otherwise
specific issue framed and concurrent