U P S R T C vs. MAMTA

Reportable

CIVIL APPEAL NO.1425 OF 2016 (ARISING OUT OF SLP(C) NO.21125/2015) U.P.S.R.T.C. Appellant(s) VERSUS Km. Mamta & Ors. Respondent(s) J U D G M E N T Abhay Manohar Sapre, J. JUDGMENT 1) Leave granted. 2) This appeal is filed by the defendant/appellant-Corporation against the judgment/order dated 28.05.2014 passed by the Division Bench of the High Court of Allahabad in First Appeal from Order No. 1681 of 2014, which in turn, 1 Page 1 arises out of an Award dated 18.02.2014 passed by the Motor Accident Claim Tribunal/District Judge (in

No. 131 of 2010. 3) In order to appreciate the short issue involved in this appeal, it is necessary to state a few relevant facts: 4) The respondents-Claimant(Plaintiffs) filed a Claim Petition under Sections 140 and 166 of the Motor Vehicles Act, 1988 (in short ‘the M.V. Act’) against the appellant-Corporation before the Tribunal, Hathras claiming compensation to the tune of Rs.36,35,880/- for the death of one Raj Kumar JUDGMENT Gautam, who died in a vehicular accident. According to the respondents, on 22.09.2010, Raj Kumar Gautam-the deceased while going on his Motor Cycle bearing No. UP-86F-9224 on Hathras-Agra road near a place called ‘Ghas Mandi’ was hit by the appellant’s bus bearing Registration No. UP-14-AB-9038. 2 Page 2 5) It was, inter alia, alleged that the offending bus was coming on wrong side with high speed and hit the

aged 49 years sustained extensive injuries and later succumbed to the injuries which gave rise to the filing of the claim petition by his legal representatives (respondents herein) claiming compensation for the untimely death of Raj Kumar Gautam. The respondents also pleaded the details regarding loss of income and other particulars necessary for claiming compensation in the claim petition. 6) The appellant-Corporation filed written statement JUDGMENT and contested the claim petition. One of the grounds taken in the defence was that of contributory negligence on the part of the deceased also while driving the motor cycle which resulted in the accident. 7) The Tribunal, by award dated 18.02.2014, partly allowed the claim petition and awarded a total sum of 3 Page 3 Rs.24,73,252/- along with interest @ 6% p.a. from date of filing till its realization to the respondents.

Court. By impugned order dated 28.05.2014, the Division Bench of the High Court dismissed the appeal and upheld the award of the Tribunal. 9) Against the said order, the appellant-Corporation has filed this appeal by way of special leave. 10) Learned Counsel for the appellant-Corporation while assailing the legality and correctness of the impugned order contended that the High Court without adverting to all the factual details and JUDGMENT grounds raised in the appeal, disposed of the appeal in a cryptic manner. According to learned counsel, the High Court neither set out the facts, nor dealt with any issue, nor appreciated the ocular and documentary evidence in its proper perspective, nor examined the legal principles applicable to the issues 4 Page 4 arising in the case and nor rendered its findings on contentious issues decided by the Tribunal though

the duty of the High Court exercising its first appellate powers under Section 173 of the M.V. Act to have dealt with all the submissions urged by the appellant-Corporation and after appreciating the entire evidence should have come to its own conclusion one way or the other keeping in view the legal principles governing the issues. It was urged that since it was not done by the High Court, a jurisdictional error is committed by the High Court JUDGMENT which renders the impugned judgment legally unsustainable. Lastly, the learned counsel urged that if his arguments are accepted, the remand of the case to the High Court to decide the appeal afresh on merits is inevitable. 5 Page 5 12) Learned counsel for the respondents, however, supported the impugned order and urged that it does

and on perusal of the record of the case, we find force in the submission of the learned counsel for the appellant-Corporation. 14) The powers of the first appellate Court while deciding the first appeal are indeed well defined by various judicial pronouncements of this Court and are, therefore, no more res integra . 15) As far back in 1969, the learned Judge – V.R. Krishna Iyer, J (as His Lordship then was the judge of JUDGMENT Kerala High Court) while deciding the first appeal under Section 96 of the CPC in Kurian Chacko vs. Varkey Ouseph, AIR 1969 Kerala 316, reminded the first appellate court of its duty to decide the first appeal. In his distinctive style of writing with subtle power of expression, the learned judge held as under: 6 Page 6

(Emphasis supplied) 16) This Court also in various cases reiterated the aforesaid principle and laid down the powers of the JUDGMENT appellate Court under Section 96 of the Code while deciding the first appeal. 17) We consider it apposite to refer to some of the decisions. 7 Page 7 18) In Santosh Hazari vs. Purushottam Tiwari (Deceased) by L.Rs . (2001) 3 SCC 179, this Court held

JUDGMENT 19) The above view was followed by a three-Judge Bench decision of this Court in Madhukar & Ors. v. Sangram & Ors. ,(2001) 4 SCC 756, wherein it was reiterated that sitting as a court of first appeal, it is the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. 8 Page 8 20) In H.K.N. Swami v. Irshad Basith ,(2005) 10 SCC 243, this Court (at p. 244) stated as under: (SCC para 3)

21) Again in Jagannath v. Arulappa & Anr ., (2005) 12 SCC 303, while considering the scope of Section 96 of the Code of Civil Procedure, 1908, this Court (at pp. JUDGMENT 303-04) observed as follows: (SCC para 2) “ 2 . A court of first appeal can reappreciate the entire evidence and come to a different conclusion……...” 22) Again in B.V Nagesh & Anr. vs. H.V. Sreenivasa Murthy , (2010) 13 SCC 530, this Court taking note of all the earlier judgments of this court 9 Page 9 reiterated the aforementioned principle with these words:

( a ) the points for determination; ( b ) the decision thereon; ( c ) the reasons for the decision; and ( d ) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled. 4. The appellate court has jurisdiction to reverse or affirm the findings of the trial court. The first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. Sitting as a court of first appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings. (Vide Santosh Hazari v. Purushottam Tiwari , (2001) 3 SCC 179 at p. JUDGMENT 10 Page 10 188, para 15 and Madhukar v. Sangram , (2001) 4 SCC 756 at p. 758, para 5.)

23) The aforementioned cases were relied upon by this Court while reiterating the same principle in State Bank of India & Anr. vs. Emmsons JUDGMENT International Ltd. & Anr. , (2011) 12 SCC 174. 24) An appeal under Section 173 of the M.V. Act is essentially in the nature of first appeal alike Section 96 of the Code and, therefore, the High Court is equally under legal obligation to decide all issues arising in the case both on facts and law after appreciating the entire evidence. [See National 11 Page 11 Insurance Company Ltd. vs. Naresh Kumar & Ors. ((2000) 10 SCC 198 and State of Punjab & Anr. vs.

consider it appropriate to reproduce the whole order of the High Court infra: “The only ground urged is that there was contributory negligence also on the part of the deceased and therefore, the compensation awarded should have been reduced proportionately. We have perused the site plan and we find that the accident occurred on a crossing. The site plan clearly indicates that the offending vehicle namely the Bus was on the right side of the road left no scope for the deceased who was traveling on the left side of the road. Consequently, we are of the opinion that there was no contributory negligence on the part of the deceased at the time when the accident occurred. The appeal fails and is dismissed.’ JUDGMENT 26) Mere perusal of the afore-quoted order of the High Court would show that the High Court neither set out the facts of the case of the parties, nor dealt with any of the submissions urged, nor took note of the grounds raised by the appellant and nor made any attempt to appreciate the evidence in the light of the 12 Page 12 settled legal principles applicable to the issues arising in the case to find out as to whether the award of the

and if not, why? 27) As observed supra, as a first appellate Court, it was the duty of the High Court to have decided the appeal keeping in view the powers conferred on it by the statute. The impugned judgment also does not, in our opinion, satisfy the requirements of Order XX Rule 4 (2) read with Order XLI Rule 31 of the Code which requires that judgment shall contain a concise statement of the case, points for determination, decisions thereon and the reasons. It is for this JUDGMENT reason, we are unable to uphold the impugned judgment of the High Court. 28) The appeal thus succeeds and is accordingly allowed in part. The impugned judgment is set aside. 29) As a necessary consequence, the case is remanded to the High Court for deciding the appeal 13 Page 13 afresh on merits, keeping in view the principle of law laid down by this Court quoted above.

in the case and hence the High Court would decide the appeal strictly in accordance with law on merits uninfluenced by our observations. Needless to observe, the High Court will do so after affording an opportunity of hearing to both the parties. We request the High Court to decide the appeal preferably within six months. No costs. .……...................................J. JUDGMENT [J. CHELAMESWAR] ………..................................J. [ABHAY MANOHAR SAPRE] New Delhi, February 12, 2016. 14 Page 14