Smt. Nanda Wd/O Gangadhar Uike And ... vs Maheshkumar S/O Suntkumar Thakur ...
2016 Latest Caselaw 2045 Bom

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      IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH 




                                                                                
                              NAGPUR.

                        FIRST   APPEAL     NO.    50      OF     2015




                                                        
    1] Nanda wd/o Gangadhar Uike,




                                                       
    aged 47 yrs.  Occu. Household 
    work.

    2]Nilesh Gangadhar Uike,
    aged 26 yrs. Occu. Education.




                                           
    3]Ms. Priya Gangadhar Uike,
                             
    aged 23 yrs. Occu. Education.

    R/o Akhada Ward, Pandharkwada
                            
    Tq. Kelapur, Distt. Yavatmal.                                    APPELLANTS.


                                           VERSUS
      


    1] Maheshkumar Suntkumar
   



    Thakur, aged 31 yrs. Occu. 
    Driver, R/o Wanadongre,
    Tq. Hingna, Distt. Nagpur. 





    2] Narendra Krishnarao Mendhe
    aged-not known, Occu. Transport,
    R/o Mahatma Fule Market
    Bhajimandi, Chindwada Line
    Nagpur. 





    3] The Oriental Insurance Co. Ltd.
    Divisional Office No. 2, Kanoria 
    House, Palm Road Nagpur, Tq. & 
    Distt. Nagpur through Divisional
    Manager Oriental Insurance Co.
    "Saubhagya" Oppo. Bank of 
    Maharashtra, Branch at Rajapeth,
    Badnera Road, Amravati.  

    4] Satyabhama Rambhau Uike,
    aged 71 yrs. Occu. Household, 



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    R/o Akhada Ward, 




                                                                                   
    Pandharkawada, Distt. 
    Yavatmal. 




                                                           
    5] Rambhau Ramchandra Uike,
    aged 77 yrs. Occu. Nil, R/o 
    Akhada Ward, Pandharkawada,
    Tq. Kelapur, Distt. Yavatmal.                                       RESPONDENTS.

Shri P. R. Agrawal, Advocate for the appellants.

Shri D. N. Kukday, Advocate for the respondent no. 3.

Shri A. S. Ambatkar, Advocate for the respondent no. 4.

                                  ig CORAM:     A. S. CHANDURKAR  J.
                               
                                
                                      Dated    :   APRIL  29, 2016.

    ORAL JUDGMENT: 
      

Notice for final disposal was issued on 20.03.2015. Accordingly

the learned counsel for the appellants, respondent nos.3 and 4 have been

heard by admitting the appeal.

2] The appellants are the original claimants who are aggrieved by

the judgment of the Motor Accident Claims Tribunal, Kelapur in Motor

Accident Claims Petition No. 31 of 2007 decided on 13.06.2014 thereby

dismissing the proceedings on the ground that the negligence of the deceased

resulting in the accident had not been duly proved.

3] The facts on record indicate that it is the case of the claimants

that on 03.02.2007 one Gangadhar, the husband of appellant no.1 and the

father of appellant nos. 2 and 3 was proceeding on motorcycle to

Pandharkawada. Near Adani village his motorcycle was hit from behind by a

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truck. Said Gangadhar died on account of injuries sustained in the accident.

Hence, his legal representatives filed proceedings under Section 166 of the

Motor Vehicles Act, 1988 (for short, the said Act).

4] The respondent no.3 Insurance Company filed its written

statement at Ex. 34 and denied the case of the claimants. Before the Claims

Tribunal the appellant no.1 examined herself and produced the copy of the

First Information Report, Spot Panchanama, Accident Report, Insurance

Policy and various other documents. The Claims Tribunal after considering

the entire evidence on record held that mere production of the First

Information Report was not sufficient to conclude that the driver of the truck

was at fault. On that basis it was held that as the rashness of the truck driver

was not proved the claim for compensation was liable to be dismissed. By

the impugned judgment the claim petition has been dismissed. Hence, this

appeal.

5] Shri P. R. Agrawal learned counsel for the appellants submitted

that Claims Tribunal was not justified in refusing to grant compensation.

According to him the case in hand was based on the negligence of the truck

driver. The documents on record including the First Information Report and

Spot Panchanama were required to be considered by the Claims Tribunal

while deciding the claim for compensation. He submitted that these

documents were not challenged by the Insurance Company before the Claims

Tribunal. He further submitted that the fact that the First Information Report

has been lodged and that the driver of the offending vehicle had fled from

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the spot was sufficient to infer negligence on the part of the said driver. He

submitted that by ignoring all this material on record the claim for

compensation has been dismissed. He placed reliance on the decisions in

Oriental Insurance Company Ltd. Vs. Sangita Dattatraya Jamdade & Ors.

II(2005) ACC 344; United India Insurance Co. Ltd. Vs. Deepak Goel & Ors.

I(2014) ACC 638 ; National Insurance Co. Ltd. Vs. Pushpa Rana and others

2009 ACJ 287 and T. O. Anthony Vs. Karvarnan and others 2008 ACJ 1165.

Without prejudice, it was submitted that even if exact proof of

negligence was not available the principle of contributory negligence would

apply and therefore the claim for compensation could not have been

dismissed in its entirety. He, therefore, submitted that the claimants were

entitled for bear amount of compensation.

6] Shri D. N. Kukday, the learned counsel for the respondent no.3

supported the impugned judgment. According to him, mere production of

the First Information Report and Spot Panchanama was not sufficient and

the contents thereof were required to be proved. He submitted that the first

informant was the sister of the deceased and she could have thrown light as

to the manner in which the accident occurred but she was not examined .

He, however, fairly did not dispute the fact that the aspect of contributory

negligence was a relevant factor which was required to be considered.

Without prejudice to the aforesaid submissions it was urged that in case the

Court was inclined to set aside the judgment of the Claims Tribunal, the

proceedings need to be remanded for reconsideration by the Tribunal.

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Shri A. S. Ambatkar, the learned counsel for the respondent no.4

supported the submissions made on behalf of the appellants.

7] The following point arises for consideration:

Whether the judgment of the Claims Tribunal deserves to be interfered with?

8] With the assistance of the learned counsel for the parties I have

perused the records of the case. The documents placed on record includes

copy of the First information Report, Spot Panchanama, Insurance Policy and

Driving License of the respondent no. 1. There are other documents on the

basis of which claim for compensation has been made. The accident occurred

when the offending truck dashed the motorcycle from the back side. The

aspect which required consideration was with regard to negligence of the

truck driver. In T. O. Anthony (supra) it has been held by the Hon'ble

Supreme Court that when a claim for compensation is made by the legal

representatives of the driver of the vehicle involved in the accident, the

question would arise with regard to contributory negligence of the

concerned driver. Further question would be as to whether the victim was

himself responsible for the accident, the existence of his responsibility and

contributory negligence if any. Perusal of the judgment of the Claims

Tribunal indicates that this vital aspect of the matter has not been given due

consideration. Even if it is assumed that the contents of the First Information

Report or Spot Panchanama were not duly proved, which issue is also

debatable, the aspect of contributory negligence was required to be

considered by the Claims Tribunal. The Claims Tribunal however has merely

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proceeded on the basis that as the negligence of the truck driver was not duly

proved the claim was liable to be dismissed.

9] It is also to be noted that the First Information Report was lodged

by the sister of the deceased but she was not examined by the claimants. It is

submitted on behalf of the appellants that, in case the Court is inclined to

remand the proceedings for fresh consideration the claimants would take

necessary steps and try to examine the first informant.

10] In view of the aforesaid facts, as the aspect of contributory

negligence has not been taken into consideration by the Claims Tribunal and

this finding of fact cannot be recorded for the first time in the present appeal,

I am inclined to remand the proceedings to the Claims Tribunal for fresh

adjudication after setting aside the impugned judgment. It cannot be lost

sight of that if the claimants are successful in proving their case as pleaded,

they would be entitled to fair compensation. The point as framed is

answered by holding that the judgment of the Claims Tribunal is liable to be

set aside.

11] Accordingly the following order is passed:

The judgment dated 13.06.2014 in Motor Accident Claims

Petition No. 31 of 2007 is set aside. The proceedings are remanded to the

Claims Tribunal , Kelapur for fresh adjudication in accordance with law.

The parties would be at liberty to amend their pleadings and lead

further evidence if so advised. As the claim petition was filed in the year

2007, the same shall be decided expeditiously and preferably by the end of

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October 2016.

The respective contentions of the parties on merits are kept open

for being urged before the Claims Tribunal.

The record and proceedings be sent to the Claims Tribunal

forthwith.

The parties shall appear before the Claims Tribunal on

13.06.2016. The first appeal is partly allowed in aforesaid terms. No order

as to costs.

JUDGE

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