Mr. P.P. Kotwal vs Mr. Solao H/F N.S. Talmale

301012fa1043.12 .odt
                                        1

                IN THE HIGH COURT OF JUDICATURE AT BOMBAY:




                                                                             
                             NAGPUR BENCH: NAGPUR
                             FIRST APPEAL NO.1043/2012




                                                     
             APELANT:
                   Swayambhu Construction Pvt. Ltd. Konark Apartments,
                   Dhantoli, Nagpur through its Director Shri Abhay s/o




                                                    
                   Baburao Madamwar
                                       VERSUS
             RESPONDENTS:
             1] Dhrupada w/o Pandurang Watekar, aged about 51 years,




                                           
                   occ : household
             2] Pandurang s/o Mahadeo Watekar, aged about 58 years,
                                
                   occ : Barber,
                   Both r/o Pimpalgaon (Nipani), Tah. Paoni, District :
                               
                   Bhandara
             3] Digambar s/o Umakant Vaidya, aged adult, occ : driver,
                   r/o Narayanpur, Tah Samudrapur, District: Wardha
             4] United India Insurance Company Limited, Dr. Bhongade
              


                   Bhavan, Main Road, Wardha.
             ============================================
           



             Mr. P.P. Kotwal, advocate for appellant
             Mr. Solao h/f N.S. Talmale, advocate for respondent no.1 to 3
             Mr. M.R. Kalar, advocate for respondent no.4.





             ============================================

                                    CORAM: M.N. GILANI, J.

DATE: 30/10/2012 ORAL JUDGMENT:

Heard both sides.

2] Admit. With the consent of both the parties, this appeal is heard finally.

301012fa1043.12 .odt 2 3] The only question that has cropped up in this appeal is, the appellant not getting opportunity of being heard while the Claim Petition No .43/2007, was decided. It is submitted that, there was death of mother of the appellant and because of which he could not attend the proceedings. Further contention is that vehicle was insured with the respondent no.4. However, the Tribunal after holding that there was breach of terms of insurance policy saddled the entire liability on him.

4] Considering the cause for non appearance of the appellant before the Tribunal and also the fact that appellant was deprived of an opportunity of leading evidence, particularly to rebut the defence raised by the respondent no.3, in the interest of justice, the award exonerating respondent no.4 and saddling the entire liability on the appellant, will have to be set aside.

5] It is clarified that issue before the Tribunal would be whether there was breach of term of insurance policy. Tribunal need not go into other issues like income of the deceased, loss of dependency, multiplier applied and total amount of compensation arrived at. In other words, the judgment and award is set aside to the extent of issue of breach of term of insurance policy.

301012fa1043.12 .odt 3 6] The appeal succeeds partly. The judgment and award, to the extent of exonerating respondent no.4 herein [original claimant no.3] and saddling entire liability upon the appellant is set aside. Rest of the award i.e. fixing the amount of compensation etc is affirmed. The matter is remitted back to the Tribunal at Bhandara for decision only on the issue of breach of terms of insurance policy, to be decided after giving an opportunity to the parties. The appellant shall be at liberty to file his written statement.

7] The appellant has deposited entire amount under award with the Registry of this Court. The amount so deposited be transmitted to the Motor Accident Claims Tribunal, Bhandara with a direction to disburse it amongst the claimants in terms of the award.

8] In the event the appellant succeeds he would be entitled to recover the said amount from the respondent no.4.

Parties shall appear before the Motor Accident Claims Tribunal, Bhandara on 26.12.2012. On receipt of the same, the Tribunal shall decide the petition as expeditiously as possible and in any event within six months from the date of receipt of the records. No order as to costs.

JUDGE SMP.