Bombay High Court
Oriental Insurance Co. Ltd., ... vs Sanjay Hiramanji Ambilgide And 4 ... on 8 December, 2017
Bench: S.B. Shukre
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL No.666 OF 2006
AND
FIRST APPEAL No.740 OF 2006
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FIRST APPEAL No.666 OF 2006
Sanjay s/o. Hiraman Ambildige,
Aged about 36 years, Occupation : Nil,
R/o. Near Water Tank,
Ward No.10, Mangrulpir,
Tq. Mangrulpir, District Washim. : APPELLANT
...VERSUS...
Corrected name and
1. Rajendra Vithalrao Potale,
address of Adult, Occupation : Driver,
Respondent No.1, as R/o. C/o. Office of Superintendent,
per Court's order State Excise & Prohibition,
dt.23.3.2011. Yeotmal, Tq. And Distt. Yeotmal.
Rajendra Vithalrao Pofale,
Adult,
C/o. Office of State Excise & Prohibition,
Morshi, Tq. Morshi, Distt. Amravati.
2. The Superintendent, State Excise & Prohibition,
Yeotmal, Tq. & Distt. Yeotmal.
3. The State of Maharashtra,
Through Collector, Yeotmal,
Tq. & Distt. Yeotmal.
4. Chandrakant s/o. Prataprao Deshmukh,
Aged about 41 years,
Occupation : Cultivator,
R/o. Gawa, Tq. Manora, Distt. Washim.
5. Oriental Insurance Company Ltd.,
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through its Branch Manager,
Old Cotton Market, Akola,
Tq. And Distt. Akola. : RESPONDENTS
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Shri C.A. Joshi, Advocate for the Appellant.
None for the Respondents.
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AND
FIRST APPEAL No.740 OF 2006
Oriental Insurance Co. Ltd.,
through its Divisional Manager,
Division Office No.1, Kanoria House,
Civil Lines, Nagpur. : APPELLANT
...VERSUS...
1. Sanjay s/o. Hiramanji Ambildige,
Aged 36 years, Occupation : Agriculturist,
R/o. Near Water Tank,
Ward No.10, Mangrulpir,
Tahsil Mangrulpir, District Washim.
2. Rajendra Vithal Potale,
Aged Major, Occupation : Driver,
C/o. Office of Superintendent,
State Excise Prohibition,
Yeotmal, Distt. Yeotmal.
3. The Superintendent,
State Excise & Prohibition,
Yeotmal, Tahsil & District Yeotmal.
4. The Collector, Yeotmal,
Tahsil & District Yeotmal.
5. Mr. Chandrakant s/o. Prataprao Deshmukh,
Aged Major,
Occupation : Cultivator,
R/o. Gawa, Tahsil Manora, District Washim.
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Shri A.M. Quazi, Advocate for the Appellant.
None for the Respondents.
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CORAM : S.B. SHUKRE, J.
th
DATE : 8
DECEMBER, 2017.
ORAL JUDGMENT :
1. Both these appeals question legality and correctness of the
judgment and order dated 13.6.2006, rendered in Motor Accident Claim
Petition No.333/2000 (New No.93/2006) by the Additional Member,
Motor Accident Claims Tribunal, Washim.
2. I have heard Shri C.A. Joshi, learned counsel for the
appellant in First Appeal No.666/2006 (original claimant) and Shri A.M.
Quazi, learned counsel for the appellant in the other First Appeal
No.740/2006, which is Insurance Company. Remaining respondents,
drivers, owners of two vehicles involved in the accident are absent,
although duly served.
3. I have gone through the record of the case including the
impugned judgment and order.
4. Ordinarily, accepting the argument of learned counsel for the
original claimant, I would not have remanded this matter back to the
Tribunal had there been proper appreciation of the evidence and logical
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recording of the findings by the Tribunal and also had there been
available on record sufficient evidence to enable this Court to make up
for something which has been missed out clearly by the Tribunal. So, the
remand of both these appeals seems inevitable.
5. I must say, the Tribunal has also not applied the law correctly
to the facts which appear to be established on record. It is further seen
that the findings recorded by the Tribunal are also inconsistent. On the
one hand the Tribunal has held that the rider or the driver of the
motorcycle involved in the accident was not rash and negligent in driving
the motorcycle, on the other hand it has fastened the liability to pay the
compensation upon the insurance company. It is well settled law that
the liability of the insurance company comes into picture only when the
owner of the vehicle who has entered into a contract of insurance with
the insurance company is held to be liable to pay the compensation
directly or vicariously.
6. So, this is a fit case for remanding the matter back to the
Tribunal for its disposal afresh in accordance with law.
7. The appeals are allowed.
8. The impugned judgments and orders are hereby quashed and
set aside.
9. The claim petition is remanded back to the Tribunal for its
disposal in accordance with law.
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10. The claim petition shall be heard and finally decided from
the stage of recording of the evidence.
11. Parties to the claim petition are at liberty to adduce
additional evidence, if any.
12. The Tribunal shall consider the evidence which is already
available on record and also the additional evidence, if adduced by the
parties in order to reach its final conclusion in the matter.
13. Parties shall appear before the Tribunal on 8th January, 2018.
14. The Tribunal shall dispose of the claim petition within three
months from the date of appearance of the parties before it.
15. The parties shall co-operate with the Tribunal in expeditious
disposal of the case and shall not seek any adjournment, except justified
for reasons beyond control.
16. The amount of compensation already withdrawn by the
original claimant shall be allowed to be retained by him till final disposal
of the claim petition, but it shall be subject to the final order that may be
passed by the Claims Tribunal.
17. Parties to bear their own costs.
18. Both appeals are disposed of accordingly.
JUDGE
okMksns
