Bombay High Court
Mr. P.P. Kotwal vs Mr. Solao H/F N.S. Talmale on 30 October, 2012
Bench: M.N. Gilani
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
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
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.
