JUDGMENT
S.D. Anand, J.
1. The appellant was non-suited on a claim preferred by him for grant of compensation in respect of injuries sustained by him in the course of the impugned accident on 09.05.2004.
2. On 09.05.2004 at 7.30 A.M., the appellant was travelling by Canter bearing Registration No. HR-37-4564, in the course of his employment as a cleaner on it; while the vehicle was driven by Yamin Ali. The vehicle was carrying four buffaloes. When the Canter reached near Kapur Mor turning in the area of village Marwa, Yamin Ali lost control of it on account of rash speed and the vehicle dashed into a road side tree. On account of the impact of the accident, the appellants sustained injuries and was hospitalized at a private hospital at Jagadhri. Driver Yamin Ali, however, jumped out of the vehicle and escaped unhurt. The hospitalization. for a period of about 25 days, cost the appellant about Rs. 60,000 to Rs. 70,000/-. Obviously he could not attend to his job as well for the duration of the hospitalization.
3. The appellant claimed a compensation of Rs. 5 lacs on a plea that the impugned accident had occurred on account of rash and negligent driving of the vehicle by Yamin Ali. The claim was raised against respondent Nos. l to 3 in their capacity as driver, registered owner and insurer respectively of the offending vehicle.
4. Respondent No. 1 denied that he was driving the offending vehicle at the relevant point of time. The averment made by him is to the effect that he was previously in the employment of respondent No. 2 as a driver of the offending vehicle but he left the job about two months prior to the impugned accident and it was the appellant who came to be employed as a driver in his place. The averment in the context was it was the appellant himself who was driving the offending vehicle at the time of the impugned accident.
5. Respondent No. 2 averred that it was Yamin Ali who was driving the offending vehicle from Sadhaura to Yamuna Nagar and the vehicle went out of control on account of a fault in the steering wheel and dashed into a road side tree. A surveyor of the Insurance Company visited the spot and furnished a report. The further averment is that the offending vehicle was under insurance cover with respondent No. 3 and that respondent No. 1 was holding a valid driving licence at the relevant point of time.
6. Respondent No. 3 raised certain preliminary objections to the effect that the petition is not maintainable, that the appellant has no locus standi to file it and that the petition is collusive between the appellant and respondent No. 2. The insurer otherwise reserved its right to file the amended written statement as and when a new fact came to its notice. It was further averred that it was the appellant himself who was driving the of-fending vehicle at the relevant point of time. The quantified amount of compensation was averred to be highly exaggerated. However, it was, conceded that the vehicle was under insurance cover for the period 08.01.2004 to 07.01.2005. The trial proceeded on the following issues:
1. Whether the accident had taken place due to rash and negligent driving of Canter No. HR37-4564 by respondent No. l? OPP
2. If issue No. l is proved, to what amount of compensation, the claimant is entitled to and from whom? OP Parties.
3. Whether the respondent No. 3 is not liable to pay compensation in view of the preliminary objections taken by it in its written statement? OPR3
4. Relief.
Issue No. 1 was disposed of against the appellant by recording a finding that the vehicle was not being driven at the relevant point of time by Yamin Ali. The learned Tribunal also draw adverse inference against the appellant on account of the fact that no report was lodged with the police and also because Yamin Ali (alleged driver) and registered owner (respondent No. 2) were not examined by the appellant at the trial. Thus, the finding recorded was that it was the appellant who was driving the vehicle.
In the light of that finding, no finding was recorded under issue Nos. 2 and 3. The appellant has filed the present F.A.O. to obtain the invalidation of the finding recorded by the learned Tribunal under issue No. l.
7. I have heard learned Counsel for the parties and have carefully gone through the file. None turned up on behalf of respondent Nos. 2 and 3 despite service.
8. The learned Counsel for the appellant argued that the learned Tribunal committed a grave error in the matter of appreciation of evidence by not attaching deserved importance to the fact that a driving licence in the name of respondent No. 1-Yamin Ali was recovered from the offending vehicle. He also argued that the learned Tribunal was not justified in drawing an adverse inference against him on account of the non-production of Yamin Ali and registered owner at the trial. It was also canvassed that even the registered owner had averred that the offending vehicle was being driven by respondent No. 1 at the relevant point of time.
9. The learned Counsel for respondent No. l argued that the driving licence in the name of his client just happened to be lying in the offending vehicle and that, even otherwise, the mere finding of availability of driving licence in the offending vehicle would not approve that it was respondent No. 1 only who was driving the offending vehicle.
10. I am prepared to go an extra mile with the appellant for the reasons indicated hereunder. If respondent No. 1 had actually left employment of respondent No. 2 about two months ago, there is no understandable reason why he would have left the driving licence in his name in the offending vehicle. It is not the plea of Yamin Ali that he is his following any profession other than driving. A professional driver would, obviously, have to compulsive carry his driving licence on his person.
11. Apart therefrom, respondent No. 1 did not have the guts to step into the witness box and make a deposition on oath on the point that he had actually left the employment of respondent No. 2 about two months ago, As he had conceded having been in the employment of respondent No. 2 at an earlier point of time and also because the appellant had made a precise averment holding him accountable for the causing of the impugned accident, it was incumbent upon respondent No. 1 to step into the witness box and deny the attributed role on oath. A refrain on his part in entering the witness box would, in fact, justify the drawl of an adverse inference against him. It was plainly illogical for the learned Tribunal to draw an adverse inference, instead of it, against the appellant in the context.
12. It would be appropriate to notice here that even in the course of the report Ex.P49, the surveyor of respondent No. 3 noticed that “major impact of the accident is on the right side and the driver of the truck does not have a minor scratch on his body whereas the cleaner got fracture.” That observation by the surveyor made on point of fact would go a long way to buttress the plea raised by the appellant to the effect that the offending vehicle was driven at the relevant point of time by respondent No. 1 and that he (the appellant) was a cleaner on it. As already indicated in an earlier part of this judgment, the appellant raised a plea that respondent No. 1 escaped unhurt as he got out of the vehicle. If Yamin Ali Respondent No. 1 wanted to challenge the correctness of the factual averment, it was for him to enter the witness box and depose the contrary on oath. In the absence of a deposition on oath by him, there is no reason why the learned Tribunal ought not to have relied upon the testimony on oath of the appellant to the above effect.
13. The mere fact that a report was not lodged with the police would not, ipso facto, justify the approach of the learned Tribunal in non-suiting the appellant. The present case, which has been otherwise proved on file, could not be invalidated just on account of the appellant not having intimated the police. This aspect is to be appreciated in the light of the fact that, as per material obtaining on the file, respondent No. 2 did lodge a damage claim with the insurer.
14. I have, thus, no reservation in reversing the finding recorded by the learned Tribunal under Issue No. 1. That issue shall stand disposed of according in favour of the appellant and against the respondents. It is held thereunder that the impugned accident had taken place on account of rash and negligent driving of Canter bearing registration No. HR37-4564 by respondent No. 1.
15. As per the law of the land, a Court/Tribunal is enjoined to record finding on all the issues. The basic purpose thereof is that even if a finding recorded by the Court/Tribunal comes to be reversed, it would not necessarily require a remand. However, in the present case, remand cannot be obviated in view of the fact that the learned Tribunal refrained from recording any finding under Issue Nos. 2 and 3.
16. In the light of foregoing discussion, the present appeal shall stand allowed. The award dated 21.11.2005 passed by the learned Tribunal shall stand set aside. The matter is remanded to the learned Tribunal for disposing of the petition afresh after recording findings under issue Nos. 2 and 3. As the learned Presiding Officer of the Motor Accident Claims Tribunal who decided this matter might well have been transferred/retired by this time, it will be for the learned District Judge/Motor Accident Claims Tribunal to either retain this file on his own board or to transfer it to any other Tribunal.