Bombay High Court
Rukhamina Vithal Shinde & Others vs Ashok Shinde & 2 Others on 10 August, 2017
Bench: I.K. Jain
fa.431.06.jud 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL NO.431 OF 2006
01] Rukhmina wd/o Vithal Shinde,
Aged about 53 years, Occu: Household work.
02] Ku. Anusaya Vithal Shinde,
Aged about 31 years, Occu: Household work.
03] Marotrao @ Balu Vithal Shinde,
Aged about 29 years, Occu: Education.
04] Dyaneshwar Vithal Shinde,
Aged about 26 years, Occu: Education.
05] Bhagirathabai wd/o Maroti Shinde,
Aged about 80 years, Occu: Nil.
All are r/o Kaleshwar,
Tq. Hadgaon, Distt. Nanded. .... Appellants
-- Versus -
01] Ashok Shinde @ Shette,
Aged about 66 years, Occu. Agriculturist,
R/o Yewali, Tq. Hadgaon, Distt. Nanded.
02] Virbhadra Prabhuappa Mathpati,
Aged about 49 years, Occu: Driver,
R/o Yewali, Tq. Hadgaon, Distt. Nanded.
03] United India Insurance Co. Ltd.
Through Branch Manager, Nanded. .... Respondents
Shri Bharat Vora, Advocate for the Appellants.
Shri D.N. Kukdey, Advocate for Respondent No.3.
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fa.431.06.jud 2
CORAM : KUM. INDIRA JAIN, J.
DATE : AUGUST 10, 2017.
ORAL JUDGMENT :-
This appeal takes an exception to the judgment and
award dated 01/02/2003 passed by Motor Accident Claims
Tribunal, Yavatmal (hereinafter referred to as 'Tribunal' for short)
in Motor Accident Claim Petition No.131/1994 thereby allowing
the claim under Section 166 of the Motor Vehicles Act, saddling
joint and several liability on the driver and owner of the
offending vehicle and declining compensation against the
insurance company.
02] The facts giving rise to the appeal may be stated, in
brief, as under :
i. Appellants are the legal representatives of deceased
Vithal Maroti Shinde, who died in a vehicular accident.
Compensation of Rs.2.00 lacs was claimed by the
appellants under Section 166 of the Motor Vehicles
Act. The Tribunal in paragraph 10 of the impugned
order observed that no oral or documentary evidence
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is forthcoming on record to show that insurance
company was liable in any way. In consequence,
liability to pay compensation came to be saddled on
driver and owner of the vehicle, and insurance
company was absolved from the liability to pay. Being
aggrieved with the order of not saddling the liability
on insurance company, claimants have filed this
appeal.
03] Learned Counsel for appellants submitted that
photocopy of insurance policy was very much on record and
ignoring the policy. Tribunal observed that documentary
evidence was not produced to show that insurance company was
liable.
04] With the assistance of the learned Counsel for the
parties, this Court has perused the record and proceedings in
Motor Accident Claim Petition No.131/1994. It can be seen from
the order-sheet (Roznama) dated 31/01/2000 that application
[Exh.56] was filed by learned Counsel for non-applicant nos.1 &
2 therein, means driver and owner. Three documents were
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produced along with Exh.56 vide list [D-57]. One of the
documents was a photocopy of certificate of insurance. It is
interesting to note that the Tribunal though called the say of
other side on Exh.56, did not pass any order either allowing or
rejecting the production. Since the certificate of insurance was
placed on record by learned Counsel for the driver and owner, it
was incumbent on Tribunal to pass suitable order on the
application for permission to produce documents [Exh.56].
Having not done so, Tribunal has committed an error apparent on
record and wrongly observed that the documents were not
produced to show that insurance company was liable to pay
compensation.
05] In the light of above and without going into the merits
of controversy, this Court finds that the matter needs to be
remanded to the Tribunal for deciding the controversy afresh.
Hence, the following order :
ORDER
I. First Appeal No.431/2006 is partly allowed.
II. Impugned judgment and award dated 01/02/2003
passed by Member, Motor Accident Claims Tribunal,
Yavatmal in Motor Accident Claim Petition No.
131/1994 is quashed and set aside.
III. Matter is remanded to the Tribunal for its decision
afresh as early as possible and preferably within a
period of six months in accordance with the law.
IV. No order as to costs.
*sdw (Kum. Indira Jain, J)
