J-fa61.16.odt 1/4
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL No.61 OF 2016
1. Milind s/o. Keshavrao Bokde,
Aged about 52 years,
Occupation : Service,
Resident of 145, Hanuman Nagar,
Nagpur.
2. Ku. Nikita d/o. Milind Rokde,
Aged about 23 years,
Occupation : Student,
Resident of 145, Hanuman Nagar,
Nagpur. : APPELLANTS
...VERSUS...
1. Smt. Vasanti wd/o. Dilip Wadnere,
Aged about 54 years, Occu.: Housewife.
2. Ku. Mrunali d/o. Dilip Wadnere,
Aged about 27 years, Occu.: Not known.
3. Abhijit s/o. Dilip Wadnere,
Aged about 24 years, Occu.: Nil.
Respondent Nos.1 to 3 are R/o. Plot No.228,
Hanuman Nagar, Near Corporation School,
Nagpur.
4. The Divisional Manager,
IFFCO-Tokyo General Insurance Co. Ltd.,
Kingsway, Nagpur. : RESPONDENTS
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
Shri Shyam Dewani, Advocate for the Appellants.
Shri S.K. Sorde, Advocate for the Respondent Nos.1 to 3.
Shri D.N. Kukday, Advocate for the Respondent No.4.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
::: Uploaded on - 22/12/2017 ::: Downloaded on - 23/12/2017 02:32:38 :::
J-fa61.16.odt 2/4
CORAM : S.B. SHUKRE, J.
st DATE : 21 DECEMBER, 2017.
ORAL JUDGMENT :
1. This appeal questions the legality and correctness of the judgment and order dated 13.10.2015, rendered in Claim Petition No.600/2008 by the Member, Motor Accident Claims Tribunal-3, Nagpur. This appeal has been primarily filed on the ground that the insurance company has been erroneously exonerated of its liability to pay the compensation and has been simply directed to first pay and recover later, without appreciating the facts established on record and the law applicable to them in a proper manner.
2. On going through the impugned judgment and order, I find that the Tribunal has reached a conclusion about the insurance company being not liable to pay compensation but, it has not recorded any reason as to why it reached such a conclusion.
3. It is the duty of the Tribunal to appreciate the evidence available on record and record a clear finding as to whether or not the burden of proof as required by law has been discharged by the party taking a defence under Section 149 of the Motor Vehicles Act. Now, the question would be as to on whom this burden would lie and this question ::: Uploaded on - 22/12/2017 ::: Downloaded on - 23/12/2017 02:32:38 ::: J-fa61.16.odt 3/4 would have to be decided by considering the settled law in this regard including that of National Insurance Company Limited vs. Swaran Singh and others, reported in AIR 2004 SC 1531. This law has also been clarified in several judgments by the Hon'ble Apex Court which, needless to say, would also have to be taken into consideration. But, the fact remains that no reasons being recorded by the Tribunal in order to draw this inference, the impugned judgment and order on this question would have to be held as contrary to law and therefore cannot be sustained in the eye of law.
4. Having regard to the importance of the issue, I find that it would be necessary that this question is first decided by the Tribunal. If it were not so, there would be another question relating to right of the parties to file an appeal before the High Court and as stated earlier, the question involved in this case being of considerable importance, an impression should not be gathered by any of the parties that its right of appeal has been affected in any manner. This is the reason why do I find that it would be in the interest of justice that this issue is first tried and decided by the Tribunal. In this view of the matter, I am of the opinion that the impugned judgment and order deserves to be quashed and set aside by allowing this appeal and the matter remanded back to the Tribunal for trial afresh from the stage of argument.
5. The appeal is allowed.
::: Uploaded on - 22/12/2017 ::: Downloaded on - 23/12/2017 02:32:38 :::
J-fa61.16.odt 4/4
6. The impugned judgment and order are hereby quashed and set aside.
7. The claim petition is remitted back to the Tribunal for hearing afresh from the stage of argument and deciding it in accordance with law.
8. Needless to say that the Tribunal shall take into consideration all the applicable law as may be cited by both sides.
9. The parties to appear before the Tribunal on 29 th January, 2018.
10. The Tribunal to dispose of the claim petition within two months from the date of appearance of the parties.
11. Record and proceedings be sent back immediately.
12. Parties to bear their own costs.
13. Appeal is disposed of accordingly.
JUDGE okMksns ::: Uploaded on - 22/12/2017 ::: Downloaded on - 23/12/2017 02:32:38 :::