MAHESH BHAGWATI, J. - (1.) CHALLENGE in this appeal is to the judgment and award dated 19th July, 1999 rendered by the Motor Accident Claim Tribunal (Special Court), Bharatpur.
(2.) HEARD learned counsel for the parties and perused the relevant material available on record including the impugned award. Learned counsel for the appellant has canvassed that the learned Tribunal determined 60% liability of driver of motor-cycle and 40% liability of Jeep driver in the accident of the instant case. Whereas, on the basis of pleadings advanced by both the parties, learned Tribunal did not frame the issue of contributory negligence. He has further canvassed that sans framing the issue, the finding should not have been given by the Tribunal, and if, the Tribunal felt that the finding ought to have been given then the Tribunal must have framed the issue. Learned counsel for the respondent no.5 contended that pleadings with regard to contributory negligence was there in the reply submitted by the Insurance Company and it was not required for Tribunal to frame any such issue for arriving at any conclusion in this regard. It was for the Tribunal to see at the time of adjudicating the claim petition that as to whether it was the sole negligence of the Jeep driver or there was contributory negligence of both Jeep driver as also the motor-cycle driver. Out of submissions as advanced by the learned counsel for the parties, what has emerged me is as to whether without framing a issue with regard to contributory negligence of both the drivers of motor-cycle and jeep, learned Tribunal rightly gave the finding in this regard? To my firm view, sans framing of issue, learned Tribunal should not have arrived at a conclusion based on the finding for which, no evidence was allowed to be led by either of the parties, hence, I deem it just and proper to remit the case back to the Motor Accident Claims Tribunal, Bharatpur for framing an issue and thereafter, affording both the parties to lead evidence thereon and decide the same within a period of one month from the date of receipt of record. Record of the case be sent back to the Tribunal immediately. Both the parties are directed to appear before the learned Tribunal on 26/10/2009. Appeal stands disposed of accordingly. ;