Page No.# 1/7 GAHC010131362017 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : MACApp./263/2017 GOPAL CH. DEKA S/O LATE JINA RAM DEA, R/O NARIKALBASTI, HOUSE NO. 2, 4TH BYE LANE, P.S. GEETANAGAR, DIST. KAMRUP, ASSAM. VERSUS SAMARJIT SINGH and ANR. S/O P. NUTEU SINGH, 4TH ASSAM REGIMENT, C/O 99 APO, BIMMAGURI, JOLPAIGURI, P/A NARENGI ARM CAMP, QUARTER NO. 293, P.S. SAATGAON, DIST. KAMRUP M, ASSAM OWNER OF THE VEHICLE WB-72/B- 2632 BIKE 2:P. ACHOUJIT SINGH S/O SRI SAMARJIT SINGH R/O NARENGI ARMY CAMP QUARTER NO. 239, P.S. SATGAON, DIST. KAMRUP METROPOLITAN ASSAM DRIVER OF THE VEHICLE AS-01/P-9515-BU Advocate for the Petitioner : MS.R KALITA, MR.D CHOUDHURY,MR.B SINHA,MR. S DEKA,MR.A D CHOUDHURY Advocate for the Respondent : MR.A ROSHID, MS.M R DEVI,,, BEFORE HON'BLE MR. JUSTICE ROBIN PHUKAN ORDER 26.06.2025 Heard Mr. T. Chakraborty, learned counsel for the appellant and also heard Mr. A. Page No.# 2/7 Roshid, learned counsel for the respondents. 2. In this appeal, under Section 173 of the Motor Vehicles Act, the appellant herein has challenged the impugned judgment and award, dated 01.08.2012, passed by the learned Member, Motor Accident Claims Tribunal (MACT), Kamrup (M), Guwahati, in MAC Case No.2108/2009. 2.1. It is to be noted here that vide impugned judgment and award dated 01.08.2012, the learned Tribunal has awarded a sum of Rs.5,000/-, being the compensation, with interest @6%, per annum, from the date of filing the claim petition i.e. 27.10.2009, till payment. 3. The background facts leading to filing of the present appeal is briefly stated as under:- “On the fateful day, i.e. on 17.07.2009, the claimant, namely, Shri Gopal Ch. Deka, was proceeding on foot from Tiniali Market towards his residence. Then all of a sudden a bike, bearing Registration No.WB-72B-2632, which was owned by Shri Samarjit Singh, the respondent No.1 herein and was driven in a rash and negligent manner, knocked down him. As a result he sustained grievous injuries on his person. The claimant then filed a claim petition before the learned Member, Motor Accident Claims Tribunal, Kamrup (M), Guwahati, claiming compensation for the injuries sustained by him in the motor accident. The respondent Nos.1 and 2 had contested the claim petition by filing their written statement denying the statement and averment made in the claim petition and stated that the accident took place due to negligence on the part of the claimant and he has to prove the rash and negligent driving of the vehicle No.WB- 72B-2632 (Bike), by documentary evidence. Page No.# 3/7 Upon the aforementioned pleadings, the learned Tribunal has framed the following two issues:- 1. Whether the claimant, Shri Gopal Ch. Deka, sustained injuries in the alleged road accident dated 17.07.2009 involving vehicle No.WB-72B-2632 and whether the said accident took place due to rash and negligent driving of the offending vehicle? 2. Whether the claimant is entitled to receive any compensation and if yes, to what extent and by whom amongst the opposite parties, the said compensation amount will be payable? Before the learned Tribunal, the claimant has examined himself as PW-1 and two other witnesses as P.W.2 and 3. The respondent had not examined any witnesses. Thereafter, hearing arguments of learned counsel for both the parties, the learned Tribunal, vide impugned judgment and award dated 01.08.2012, had directed the respondents/opposite party No., i.e. the owner of the offending vehicle, to pay a sum of Rs.5,000/- with interest @6% per annum, from the date of filing the claim petition i.e. 27.10.2009. 4. Mr. Chakraborty, learned counsel for the appellant, drawing attention of this Court to the orders being passed by the learned Tribunal w.e.f. 27.10.2009, till disposal of the claim petition on 01.08.2012, submits that on the date of passing the judgment and award dated 01.08.2012 and on 19.05.2012, the claimant remained absent and though the claimant had submitted the evidence of three witnesses through affidavit, yet, the claimant and his witnesses were not cross-examined and that the respondents/opposite parties had not adduced any evidence though it has been mentioned in the impugned judgment and award that the claimant had examined himself as PW-1 and two other witnesses and contesting opposite party had not examined any witnesses and that the learned Tribunal had heard arguments of both the parties, as on the date of hearing i.e. on 19.05.2012, but on that date the claimant remained absent and there is no indication in the said order that the arguments of both the parties were heard and under such Page No.# 4/7 circumstances, the learned counsel for the appellant submits that the impugned judgment and award is perverse and on such count, the same is liable to be set aside and quashed. 5. On the other hand, Mr. Roshid, learned counsel for the respondents, submits that the learned Tribunal has awarded a sum of Rs.5,000/- being the compensation and the same has already been paid. Referring to sub-section (2) to Section 173 of the M.V. Act, Mr. Roshid submits that no appeal shall lie against any award of a Claims Tribunal, if the amount in dispute is less than Rs.10,000/- and subsequently, the same has been enhanced to Rs.1,00,000/- in the Amendment Act 32 of 2019 and under such circumstances, Mr. Roshid submits that this appeal is not maintainable and therefore, he has contended to dismiss the same. 6. Having heard the submission of learned counsel for both the parties, I have carefully gone through the memo of appeal and the grounds mentioned therein and also perused the impugned judgment and award dated 01.08.2012. 7. It appears that in the impugned judgment and award, the learned Tribunal has observed that the claimant has examined himself as PW-1 and two other witnesses and contesting opposite party has not examined any witness, and it also appears that the learned Tribunal has heard arguments of the parties. But, the orders dated 19.05.2012 and 01.08.2012, and all previous orders dated 27.10.2009, 21.04.2010, 22.09.2010, 09.02.2011, 10.08.2011 and 14.12.2011 are contrary to the observation made by the learned Tribunal in the impugned judgment and award. 8. From the order dated 09.02.2011, it appears that the claimant has submitted evidence of three PWs through affidavit and thereafter, the learned Tribunal has fixed the case on 10.08.2011, for cross-examination of PWs. But, on that date i.e. on 10.08.2011, the claimant has filed a petition seeking time and thereafter, the learned Tribunal has fixed the matter on 14.12.2011 for cross-examination of the PWs. Thereafter, on 14.12.2011 all the parties remained absent without any step and the learned Tribunal has fixed the matter on 19.05.2012, for cross-examination of PWs and DW, if any. However, on 19.05.2012, the claimant remained absent without any step and opposite parties Page No.# 5/7 present and P.W. and D.W. were absent. Then the learned Tribunal had closed the evidence of claimant/appellant and fixed the matter on 01.08.2012 for judgment. Thereafter, on 01.08.2012 the learned Tribunal had pronounced the impugned judgment and award, as indicated herein above. 9. It appears that the claimant had failed to produce his witnesses before the learned Tribunal for cross-examination. And when the witnesses were not made available for cross-examination on date fixed, the learned Tribunal ought to have expunged the same. If any witness, who merely file evidence in affidavit and refuses to subject himself for cross examination, his evidence shall be eschewed, otherwise the spirit of adversarial system of law will become meaningless. Reference in this context can be made to a decision of Honble Supreme Court in the case of Vidhyadhar vs. Manikrao, AIR 1999 SC 1441 has categorically observed that: “16. Where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar Gurbakhsh Singh v. Gurdial Singh and Anr. . This was followed by the Lahore High Court in Kirpa Singh v. Ajaipal Singh and Ors. AIR (1930) Lahore 1 and the Bombay High Court in Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh AIR (1931) Bombay 97. The Madhya Pradesh High Court in Gulla Kharagjit Carpenter v. Narsingh Nandkishore Rawat also followed the Privy Council decision in Sardar Gurbakhsh Singh's case (supra). The Allahabad High Court in Arjun Singh v. Virender Nath and Anr. held that if a party abstains from entering the witness box, it would give rise to an inference adverse against him. Similarly, a Division Bench of the Punjab & Haryana High Court in Bhagwan Dass v. Bhishan Chand and Ors., drew a presumption under Section 114 of the Evidence Act against a party who did not enter into the witness box.” The above ratio was followed by this Court in 2016 (4) CTC 158, Thomas and another vs. Thiyagarajan. Hon'ble Mr.Justice S.S. Sundar, relying on the judgment of this Court in D.F.Philips vs. Dhamayanthi Page No.# 6/7 Kailasam and Others, 2009 (4) TLNJ 217 (Civil) granted permission permitted to depose further as defendant side witness.” 10. In the instant case having not expunged/eschewed the evidence of three witnesses of the claimant/appellant, the learned Tribunal had acted upon the same and placing reliance upon the same had pronounced the impugned judgment and award. Further, it appears that the learned Tribunal has not afforded opportunity of being heard to the claimant before pronouncement of the judgment and award. Thus, serious prejudice was caused to the claimant vide impugned judgment and award. 11. It is to be noted here that right to fair trial is right guaranteed to every litigant under Article 21 of the Constitution of India. In fair trial fair opportunity has to be afforded to both the parties. Denial of such opportunity amounts to denial of fair trial. In the case in hand the appellant was denied the fair opportunity to present his case. He was not present when the case was fixed for argument. And without affording an opportunity of being heard to the claimant/appellant the leaned Tribunal had passed the impugned judgment and award. 12. I have considered the submission of Mr. Roshid, the learned counsel for the respondents and also carefully gone through the sub-section (2) to Section 173 of the M.V. Act. There appears to be substance in his above submission as the amount awarded as compensation is only Rs.5,000/, which even not qualifying sum for filing an appeal, under Sub-Section(2) to Section 173 of the M.V. Act. But, because of the impugned judgment and award being passed without affording an opportunity of being heard and in contravention of the principles of natural justice, and also in violation of the right to fair trial of the claimant/appellant, this court is left unimpressed by the submission of Mr. Roshid and accordingly the stands repudiated. 13. Under the above mentioned facts and circumstances, this Court is of the view that the impugned judgment and award dated 01.08.2012 failed to withstand the legal scrutiny. Accordingly, the same stands set aside and quashed. The matter stands Page No.# 7/7 remanded to the learned Tribunal to proceed with the same in accordance with law. Both the parties are directed to appear before the learned Tribunal on 30.07.2025. 14. Send down the record of the learned Tribunal with a copy of this judgment and order. Comparing Assistant Sd/- Robin Phukan JUDGE