fa497.08 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
FIRST APPEAL NO. 497 OF 2008
The New India Assurance Co. Limited,
through its Manager, Regional Office,
Nagpur.
(Insurer of Vehicle No. MH-28/B-5032) ... APPELLANT
Versus
1. Hasinabano wd/o Sheikh Raffiuddin
aged 25 years, occ. - Household,
2. Assmabee d/o Sheikh Raffiuddin,
aged 5 years,
3. Sheikh Rahim s/o Raffiuddin,
aged 3 years,
4. Reshmabee d/o Sheikh Raffiuddin,
aged 8 months,
(Respondents 2 to 4 are under
Guardianship of their mother
Respondent No. 1).
5. Gulshanbee wd/o Sheikh Julfoddin,
aged 55 years,
Respondent Nos. 1 to 5 all residents
of Balapur, Tah. Balapur, Dist. Akola.
6. Jakerbee wd/o Sheikh Julfoddin,
aged 55 years, occ. Household,
r/o c/o Jabbarkhan Abbaskhan Pathan,
Moulana Azad Nagar, Ward No. 1/2,
Lonar, Tah. Lonar, District - Buldana.
7. Divisional Controller, M.S.R.T.C.,
Akola, Tahsil & District - Akola.
(Owner of S.T. Bus No. MH-31/
W-9801 - Mehkar Depot).
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8. S. Ramkrushna,
aged - Major, occ. - Business,
r/o Milind Nagar, Mehkar,
Tahsil Mehkar, Dist. Buldana.
(Owner of Vehicle No. MH-28/
B-5032). ... RESPONDENTS
Shri A.H. Patil, Advocate for the appellant.
.....
CORAM : B.P. DHARMADHIKARI, J.
JUNE 01, 2017.
ORAL JUDGMENT :
The matter was called out yesterday. As nobody appeared for the respondents, it came to be adjourned to today. Today also, Shri A.H. Patil, learned counsel for the appellant is only present for the Insurance Company. Nobody appears for respondent Nos. 1 to 6 (claimants) and Respondent Nos. 7 or 8.
2. The judgment / award dated 24.01.2008 delivered by the Motor Accident Claim Tribunal (M.A.C.T.), Akola in Motor Accident Claim Petition (M.A.C.P.) No. 121 of 2004 has been questioned in this appeal under Section 173 of the Motor Vehicles Act, 1988.
3. The short submission of Shri Patil, learned counsel ::: Uploaded on - 05/06/2017 ::: Downloaded on - 06/06/2017 00:31:30 ::: fa497.08 3 is, in Claim Petition no allegations were made against the vehicle 'Tipper" involved in the accident. The deceased i.e. husband of Respondent No. 1 and father of other respondents was driving that Tipper and claimants specifically urged that Maharashtra State Road Transport Corporation (M.S.R.T.C.) bus was being driven recklessly and negligently. He contends that in this backdrop, issues at Exh. 25 are framed by the M.A.C.T. on 16.07.2005. The issues also do not cast any burden on the appellant. In this backdrop when final judgment was delivered, without recording any apparent reasons, the learned M.A.C.T. has found Tipper as also bus equally responsible for the accident and apportioned liability between them. The total claim of Rs.5 lakh was directed to be recovered jointly and severally from the respondents. The Bus owner M.S.R.T.C. did not challenge that judgment and it is the Insurance Company which has approached this Court. As per directions of this Court dated 28.08.2008 on Civil Application No. 3474 of 2008, the amount as awarded has been deposited with the Registry of this Court and by later order dated 27.01.2009, claimants have been permitted to withdraw part of that amount.
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4. Shri Patil, learned counsel, therefore, claims that the impugned judgment is unsustainable and liable to be quashed and set aside. He submits that balance amount which may have been deposited with the Nationalized Bank should be allowed to be withdrawn by the appellant and the respondent Nos. 1 to 6 should be called upon to refund the amount which they have withdrawn as per orders of this Court. He points out that an undertaking has been furnished by them to this Court on 28.04.2014.
5. The question which arises for determination is whether the learned M.A.C.T. was justified in recording a finding that the appellant - Insurance Company is jointly and severally responsible to shoulder the liability towards compensation ?
6. A perusal of Claim Petition as filed by the claimants (Respondent Nos. 1 to 6), particularly paragraph No. 21-A therein shows an assertion that the deceased Rafiyoddin s/o Julfoddin was driving Tipper cautiously in moderate speed. The M.S.R.T.C. Bus coming from opposite direction, dashed ::: Uploaded on - 05/06/2017 ::: Downloaded on - 06/06/2017 00:31:30 ::: fa497.08 5 against that Tipper as driver of that bus lost control over it and it was in high speed. In the backdrop of these assertions on 16.07.2005, the M.A.C.T. has framed issues at Exh. 25.
Sr. No. Issues Findings
1. Do claimants prove that Raffiuddin s/o Yes Julfoddin died in a vehicular accident that took place on 20-1-2004 at about 19.30 hours on Mehkar- Sultanpur Road, one km. away from Sultanpur, Tq. Mehkar, District - Buldana, due to negligent driving of Bus No. MH-31/W-
980 by its driver, owned by respondent No.1 ?
2. To what amount of compensation As claimed claimants are entitled and from whom ?
3. What reliefs and award ? See the order made below.
7. Thus, Issue No. 1 expressly exonerates the appellant from showing that "Tipper" was in any way not responsible for said accident. The entire burden to prove negligence was on the claimants and the burden was expected to be discharged by showing that Bus driver was responsible for the accident. In rebuttal, M.S.R.T.C. was supposed to lead evidence to demonstrate that it was not negligent.
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8. A perusal of entire judgment or award nowhere shows any material to enable this Court to gather as to how the appellant - Insurance Company and impliedly deceased Tipper Driver is found in any way negligent in the said accident. The discussion contained in paragraphs 13 & 14 of the impugned judgment only shows certain inferences which are not based upon any factual material. In the absence of such factual matrix, the only inference could not have, in present facts enabled the M.A.C.T. to hold the appellant responsible for accident in any way.
9. In the operative order, joint and several liability has been fastened, therefore, the M.A.C.T. ought to have recorded a finding of other contributory or composite negligence after commenting upon spot panchnama or other material. There is no reference to spot panchnama and one cannot from the entire judgment of M.A.C.T. comprehend as to how Tipper driver has been held partially responsible for the accident. When the claimants themselves exonerated Tipper and as the deceased was driving that Tipper, M.A.C.T. ought to have recorded appropriate finding. The finding could have been reached by ::: Uploaded on - 05/06/2017 ::: Downloaded on - 06/06/2017 00:31:31 ::: fa497.08 7 indicating that spot of accident was on wrong side of Tipper, that Tipper had entered wrong side of the road or some other material to indicate fault on Tipper driver as also Bus driver. It appears that no witness examined by the claimants has deposed on these lines.
10. In this situation, it is apparent that when the claimants did not claim any compensation under Motor Vehicles Act, from the appellant by showing that Tipper had in any way contributed to the accident, by ordering joint and several recovery the M.A.C.T. has denied the appellant an opportunity to meet the case of contributory or composite negligence.
11. The record shows that the appellant - Insurance Company has deposited the amount of Rs.2,52,382/- on 26.09.2008. It deposited the amount of Rs.3,39,370/- on 16.10.2008. The M.A.C.T. had awarded compensation of Rs. 5 lakh with 8% interest. Thus, the entire amount of compensation with interest has been deposited by the appellant
- Insurance Company with the Registry of this Court. Because ::: Uploaded on - 05/06/2017 ::: Downloaded on - 06/06/2017 00:31:31 ::: fa497.08 8 of later orders of this Court dated 27.01.2009, 50% of this amount has been allowed to be withdrawn by the claimants after their furnishing an undertaking that in case the appeal is allowed, the respondents would return that amount to the Insurance Company with proportionate interest as this Court may direct. The balance amount was directed to be invested in any Nationalized Bank for a period of three years. The affidavit/ undertaking filed vide Stamp No. 5416 of 2014 by Hasinabano wd/o Sheikh Raffuddin and vide Stamp No. 5415 of 2014 by Gulshanbee wd/o Sheikh Julfoddin are available on record. It, therefore, appears that 50% of the above amount is already withdrawn by respondent Nos. 1 to 6.
12. In this situation, as I find the remand to M.A.C.T. necessary, to give the appellant an opportunity to cross examine the witness or then to lead evidence to show that M.S.R.T.C. Bus was wholly responsible for the accident and the appellant - Insurance Company is not expected to shoulder any liability towards it, I am not inclined to direct the claimants to deposit the amount already withdrawn by them. However, that withdrawal is subject to further orders to be passed by the ::: Uploaded on - 05/06/2017 ::: Downloaded on - 06/06/2017 00:31:31 ::: fa497.08 9 M.A.C.T. after trial in M.A.C.P. The appellant - Insurance Company is permitted to withdraw the amount invested by the registry of this Court in the Nationalized Bank with interest accrued upon it. This withdrawal was also be subject to further orders of the M.A.C.T. in the matter.
13. According, First Appeal is partly allowed. The judgment/ award dated 24.01.2008 delivered by the M.A.C.T., Akola, in M.A.C.P. No. 121 of 2004 is quashed and set aside. The Claim Petition is restored back to the file of said Tribunal for its fresh adjudication in accordance with law. The appellant
- Insurance Company is directed to appear before the M.A.C.T., Akola on 10.07.2017 and to abide by its further instructions in the matter. However, there shall be no order as to costs.
JUDGE JUDGE
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*GS.
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