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Jammu & Kashmir High Court
Muzaffar Hussain Attar, J.
Mohammad Jamal Bhat - Appellant
Versus
JandK Bank Ltd. - Respondent
CMAMs No. 229, 230 of 2013, 231 of 2013, 232, 233, 234, 235, 236, 237, 238 and 239 of 2013
Decided On : 15-07-2014
Preliminary Issue - Motor Accidents Claims Tribunal - The court allowed the appeals and set aside the order dismissing the claim petitions, remitting them back to the Motor Accidents Claims Tribunal for further consideration. The court held that the issue of negligence of the driver was not a preliminary issue of both law and fact and should be decided along with all other issues after evidence is recorded.
Fact of the Case:
An Ambassador Car belonging to J&K Bank Ltd. was allegedly taken out of the custody of its driver and exploded, resulting in death. The Motor Accidents Claims Tribunal dismissed the claim petitions as not maintainable.
Finding of the Court:
The court found that the issue of negligence of the driver was not a preliminary issue of both law and fact and should be decided along with all other issues after evidence is recorded. The appeals were allowed, and the claim petitions were remitted back to the Motor Accidents Claims Tribunal for further consideration.
Issues: The main issue was whether the death of the deceased was due to the use of the vehicle due to its rash and negligent driving, and whether this issue was a preliminary legal issue.
Ratio Decidendi: The court held that the issue of negligence of the driver was not a preliminary issue of both law and fact and should be decided along with all other issues after evidence is recorded.
Final Decision: The appeals were allowed, and the order dismissing the claim petitions was set aside. The claim petitions were remitted back to the Motor Accidents Claims Tribunal for further consideration.
Muzaffar Hussain Attar, J.—The issues involved in these Appeals being similar and the Claim Petitions, having been decided by a common order, same are taken up for disposal together.
2. The Motor Accidents Claims Tribunal, Srinagar, (for short MACT), has dismissed 11 Claim Petitions by one common order dated 29-08- 2013, holding them not maintainable.
3. The facts relevant for consideration of these Appeals are briefly summarized as under:
An Ambassador Car bearing No. JK01B-9009, belonging to J&K Bank Ltd. was, allegedly taken out of the custody and control of its driver on 10-08-2000 by unknown persons. Almost two hours thereafter, the vehicle was parked near the wall of State Bank of India, Srinagar where it exploded resulting in death of many persons, whose legal representatives have filed the Claim Petitions as also these Appeals. F.I.R No. 85/2000 u/s 302, 307 and 427 IPC and section 3 of Prevention and Suppression of Sabotage Act was registered at Police Station, Kothi Bagh.
4. In the Claim Petitions, the MACT, framed as many as 07 issues. Issue No.04, which was taken as preliminary legal issue and on the basis of which, the Claim Petitions were dismissed, is taken note of :
4. Whether the death of the deceased is not due to use of the vehicle due to its rash and negligent driving being the paramount consideration while claiming compensation under the Act before this Tribunal and for this reason the petition is not maintainable.
5. In the Appeals it is pleaded that the issue No.4 could not be taken as preliminary issue, in as much as, it was mixed question of law and fact. Learned counsel for the Appellants referred to Order 14 rule 2(2) of the CPC (CPC) and submitted that in the facts of these cases, issue No.4 has been wrongly treated as preliminary issue when decision on the said issue could be rendered only after recording of evidence.
6. Learned counsel for the respondents, more particularly, learned counsel for the Insurance Company, submitted that the issue No.4, being exclusively a legal issue and its decision being not dependant for recording of any evidence, it has rightly been treated as preliminary issue and rightly decided by the MACT. 06/ In order to appreciate the controversy raised in these Appeals, Rule 2 of Order XVI is taken note of :
2. Court to pronounce judgement on all issues.
(1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of sub-rule (2), pronounce judgement on all issues.
(2) Where issues both of law and of fact arise in the same Suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to :
(a) The jurisdiction of the Court, or
(b) A bar to the Suit, created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the Suit in accordance with the decision on that issue.
7. Be that as it may, the issue No.4, which appears to have not been framed properly in the form it exists, in the facts and circumstances of this case, cannot be said to be a preliminary issue of the nature, which would affect the jurisdiction of the Court or would constitute a bar to the Suit created by any law for the time being in force. The issue No.4 is an issue of both law and fact and would require to be decided along with all other issues.
8. Negligence of the driver, in all circumstances, is not related only to the driving of the vehicle. The driver of a vehicle is its custodian as the vehicle is entrusted to him by the owner. He (driver) has to be vigilant and cautious, in all circumstances. All these aspects are to be considered and dealt with only after evidence is recorded before the MACT.
9. For the above stated reasons, these Appeals are allowed and the order dated 29-08-2013 is set aside. All the Claim Petitions are
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