Sayyad Alisha Rajjak U/G Of Father ... vs Altaf Noormohamad Tamboli And ...
2016 Latest Caselaw 1349 Bom

                                              1               F.A. NO.2552 of 2015

                 
              IN THE HIGH COURT OF JUDICATURE OF BOMBAY




                                                                             
                         BENCH AT AURANGABAD




                                                     
                       FIRST APPEAL NO.2552 OF 2015


               Sayyad Alisha Rajjak,




                                                    
               Age 7 years, Occu. Education,
               Under Guardian of Father
               Sayyad Rajjak Sayyad Mohammad,
               Age 43 years, Occu: Medical Practitioner,
               R/o Dhanora, Tal.Ashti,




                                            
               Dist. Beed. 
                              ig      ...APPELLANT
                                      (Ori.Claimant)
                                                         
                    VERSUS
                            
      1.       Altaf Noormohammad Tamboli,
               Age Major, Occup. Owner & Driver,
               R/o Kada, Tal.Ashti,
               Dist. Beed. 
      
   



      2.       The New India Assurance Co.Ltd.,
               Through its Branch Manager,
               Branch Office at Jalna Road, Beed,
               Dist. Beed. 





                                                  ...RESPONDENTS
                                                  (Ori. Respondents)
                             ...
      Mr.Sushant B.Choudhari, Adv., for the appellant.
      Mr.G.R.Syed, Adv., for respondent no.1.





      Mr.Mohit Deshmukh, Adv., h/f Mr. Mr. Mohit 
      Deshmukh, Adv.,  h/f Mr. S.G.Chapalgaonkar, Adv., 
      for respondent no.2. 

                                            ...
                                    CORAM: P.R.BORA, J.

DATE : April 7th, 2016

***

2 F.A. NO.2552 of 2015

ORAL JUDGMENT:

1. Heard. Admit. With the consent of learned

Counsel for the parties, taken up for final hearing.

2. The original claimant, through her guardian father,

has preferred the present appeal, taking exception to the

judgment and award passed in MACP No.273/2013, decided on

24th August, 2015, by the Motor Accident Claims Tribunal, at

Beed.

3. The aforesaid claim petition was filed by the

appellant seeking compensation on account of the injury

suffered by her in a vehicular accident having involvement of a

tanker bearing Registration No.MH-16-AE-7786, owned by

respondent no.1 herein, and insured with respondent no.2.

The Tribunal has rejected the aforesaid claim petition on the

ground that the claimant has failed to prove the involvement of

the said tanker in the occurrence of the alleged accident.

4. Mr. Sushant B.Choudhari, Learned Counsel

appearing for the appellant invited my attention to the

observations made by the learned Tribunal in paragraph no.17

3 F.A. NO.2552 of 2015

of the impugned judgment. The learned Tribunal has

observed that the claimant failed to examine the eye witnesses

named in the FIR, and also did not examine investigating

officer. On such observation, the Tribunal has recorded a

finding that the claimants have failed in proving involvement of

the vehicle concerned in the alleged accident. Learned

Counsel submitted that the owner of the Tanker has admitted

the involvement of the tanker in occurrence of the alleged

accident and,

in such circumstances, the Tribunal ought not

have rejected the claim so filed by the appellant on the ground

that the claimant has failed in proving involvement of the

tanker in the occurrence of the alleged accident. In the

alternative, learned Counsel submitted that if merely for want

of examining certain witnesses by the claimant, the Tribunal

had reached the conclusion that the involvement of the vehicle

has not been proved, the claimant needs to be given an

opportunity to examine the said witnesses so as to prove the

involvement of the concerned vehicle in the occurrence of the

alleged accident and, therefore, he alternatively prayed for

remanding the matter to the Tribunal by allowing the present

appellants to examine the necessary witnesses before the

Tribunal.

4 F.A. NO.2552 of 2015

5. Learned Counsel Shri Syed for respondent no.1

submitted that respondent no.1 has filed his written statement

before the Tribunal, and had accepted the involvement of the

tanker owned by him in occurrence of the alleged accident. He

has, therefore, prayed for passing of appropriate orders.

6. Shri Mohit Deshmukh, learned Counsel appearing

for respondent no.2 Insurance Company, has opposed the

submissions advanced on behalf of the appellant. Learned

Counsel submitted that the Tribunal has recorded elaborate

reasons before reaching to the conclusion that the involvement

of the concerned tanker has not been proved in occurrence of

the alleged accident. Learned Counsel submitted that the

father of the claimant is a medical practitioner and, as such, it

has to be presumed that he is aware of the procedure in case of

medico-legal cases. Learned Counsel further submitted that it

cannot be digested that a person having knowledge of the

procedure to be followed in medico-legal cases will file FIR after

31 days. Learned Counsel further submitted that merely

because the original respondent no.1 has admitted the

involvement of the tanker owned by him in the occurrence of

the alleged accident, no such conclusion can be drawn that the

vehicle was involved because there is every possibility of his

5 F.A. NO.2552 of 2015

collusion with the claimants. Learned Counsel submitted that

this point was raised and urged before the Tribunal and it has

been rightly considered by the Tribunal. Learned Counsel, in

so far as alternative prayer made by the learned Counsel for

the appellant, submitted that it was the primary duty cast on

the claimant to prove the involvement of the vehicle concerned

in the alleged accident in view of the fact that involvement was

specifically disputed by the Insurance Company in the written

statement filed by it.

ig Learned Counsel further submitted that

no reason has been stated by the claimants as to why they

could not examine the necessary witnesses. It is further

argued that whatever best evidence was possible, ought to

have been adduced by the claimant at the earliest point of time.

It is further argued that now, after the Tribunal has recorded an

adverse finding, the claimant cannot be permitted to fill up the

lacuna. Learned Counsel has, therefore, prayed for not

accepting the alternative request also.

7. I have carefully considered the submissions

advanced by the learned Counsel appearing for the respective

parties. The impugned judgment reveals that the learned

Tribunal, on the ground that the claimant did not examine the

eye witnesses, namely, Bharat Eknath, Kisan Chavan and

6 F.A. NO.2552 of 2015

Rajguru, who were stated to have seen the accident in

question, and also the investigating officer, has recorded the

conclusion, which is proved to be fatal for the case of the

claimant. It appears to me that, under an impression that the

owner of the tanker has admitted involvement of the said

tanker in occurrence of the alleged accident by filing his written

statement on record, the claimants did not find it necessary to

examine the other witnesses. In such circumstances, and

more particularly, having regard to the fact that Motor Vehicles

Act is a social legislation, I feel that the claimant needs to be

given an opportunity to adduce the necessary evidence before

the Tribunal so as to prove the involvement of the vehicle

concerned in occurrence of the alleged accident. It need not

be stated that the contesting respondent will have every

opportunity to cross examine the said witnesses and bring truth

on record. It would also be permissible for the respondents to

adduce any evidence from their side if so required.

8. For the reasons stated above, I pass the following

order:

ORDER

1) The judgment and award passed in MACP

No.273/2013, on 24/8/2015, by the Motor Accident Claims

7 F.A. NO.2552 of 2015

Tribunal, at Beed, is quashed and set aside.

2) The matter is remanded back to the Tribunal with a

direction that on an application made by the Claimant, the

Tribunal shall allow the claimant to adduce the evidence of

necessary and relevant witnesses. The Tribunal shall also

permit the respondents to adduce the evidence in rebuttal, if

any.

3) The parties are directed to appear before the

Tribunal on 8th of June, 2016. The Tribunal shall expeditiously

decide the claim petition preferably within a period of six

months.

4) Record and proceedings be sent back to the

Tribunal forthwith.

The appeal is allowed in the aforesaid terms.

(P.R.BORA) JUDGE

...

AGP/2552-15fa