Bombay High Court
Vicky Vasant Amolik vs Anand Nandkishor Dayma And Others on 21 November, 2016
Bench: P.R. Bora
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 51 OF 2016
Shri Vicky Vasant Amolik,
Age: 24 years, Occ: Nil,
R/o Belapur (Bk.) Tq. Shrirampur,
Dist. Ahmednagar. ... Appellant
Vs.
1. Shri Anand Nandkishor Dayma,
Age: Major, Occ: Business,
R/o Belapur (Bk.) Tq. Shrirampur,
Dist. Ahmednagar.
2. Shri Kiran Ravindra Gangwal,
Age: Major, Occ: Owner,
R/o Belapur (Bk.) Tq. Shrirampur,
Dist. Ahmednagar.
3. The Manager,
The New India Assurance Co. Ltd.,
Parag Building, Shivaji Corss Road,
Shrirampur, Dist. Ahmednagar. ... Respondents
----
Mr. Tambe Rahul A., Advocate for the Appellant.
Mr. S.S. Rathi, Advocate for respondent no.3.
----
CORAM : P.R. BORA, J.
DATE : 21-11-2016.
ORAL JUDGMENT :
1. With consent of the learned counsel appearing for the
parties, the present appeal is finally heard at the admission stage.
The judgment and order passed by the Member, Motor Accident
Claims Tribunal at Shrirampur on 21.09.2015 in M.A.C.P. No. 311 of
2012 is challenged in the present appeal.
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2. The aforesaid claim petition was filed by the present
appellant seeking compensation on account of the injuries caused
to him in a vehicular accident happened on 17.11.2012 having
involvement of a motor cycle owned by present respondent no.2
and insured with present respondent no.3. The aforesaid claim
petition has been dismissed by the tribunal mainly for the reason
that the claimant-petitioner did not examine himself and also did
not examined any other witness in order substantiate the
contentions raised in the petition.
3. The learned counsel for the appellant submitted that,
the learned counsel who was appearing for the appellant before the
tribunal expired during the pendency of the aforesaid claim petition
on 28.01.2015. The learned counsel has tendered across the bar
the xerox copy of the death certificate of the said counsel namely S.
Ajit Gandhi. The learned counsel further submitted that, the fact
that his counsel has expired was not within the knowledge of the
present appellant and obviously there were no further instructions
to the appellant from his lawyer as about the progress of the claim
petition before the tribunal. The learned counsel submitted that, in
such circumstances the appellant could not appear before the
tribunal and also could not adduce any evidence on his behalf. The
learned counsel submitted that, since the claim petition filed by the
present appellant has been dismissed for want of evidence from his
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side, an opportunity needs to be given to the present appellant to
adduce evidence on his behalf to prove his claim before the
tribunal. The learned counsel submitted that, the appellant did not
appear before the tribunal only for the reason that there was no
instructions from his lawyer in that regard and he was not aware
about of the fact that his counsel has died during pendency of the
claim petition. The learned counsel has, therefore, prayed for
remand of the matter with direction to the learned tribunal to
permit the present appellant to adduce necessary evidence on his
behalf.
4. Shri S.S. Rathi, the learned counsel appearing for
respondent no.3, insurance company submitted that it was the duty
of the appellant to be vigilant as about the progress in the claim
petition filed by him before the tribunal. The learned counsel
submitted that, the appellant was negligent in prosecuting his claim
and his negligence cannot be awarded by remanding the matter
and by permitting him to adduce evidence on his behalf. The
learned counsel, therefore, prayed for dismissal of the appeal.
5. I have carefully considered the submissions advanced
by the learned counsel appearing for the respective parties. On
perusal of the judgment it is revealed that, the tribunal has
dismissed the petition filed by the present appellant only on the
ground that there was no oral evidence on behalf of the petitioner
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nor any other witness was examined by him. Having regard to the
fact that the counsel who was appearing for the present appellant
expired during the pendency of the claim petition and in absence of
any contrary evidence showing that the aforesaid fact was well
within the knowledge of the present appellant, there is every
reason to believe that the present appellant may not be knowing
about the dates in the claim petition before the tribunal. Normally
the petitioner is not supposed to attend each and every date before
the tribunal and his presence is required for adducing his evidence
or at the time of hearing of the petition. In absence of any
evidence on record that in spite of having knowledge that the
petition is placed for hearing the appellant did remain absent, it
appears to me that an opportunity needs to be given to the
appellant to substantiate his claim by permitting him to adduce his
evidence before the tribunal and also to examine the necessary
witnesses to support the contentions raised by him in the petition. I
am therefore, inclined to pass the following order.
ORDER
i) The judgment and order dated 21.09.2015 passed
in M.A.C.P. No. 311 of 2012 by Motor Accident
Claims Tribunal, Shrirampur is quashed and set
aside.
ii) Consequently, the aforesaid claim petition stands
restored to its original file for deciding it afresh.
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iii) The Tribunal shall permit the present petitioner to
adduce his own evidence and to examine the
necessary witnesses in support of his claim.
iv) It would also be open for the respondents to
adduce evidence on their behalf, if they so desire.
v) The appeal, thus, stands allowed in the aforesaid
terms.
(P.R. BORA)
JUDGE
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