Bombay High Court
Shri Surendra S/O Bhawarlalji ... vs Shri Arvind S/O Dhanuji Vyas And 2 ... on 12 July, 2017
Bench: S.B. Shukre
J-fa1132.15.odt 1/3
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL No.1132 OF 2015
Shri Surendra s/o. Bhawarlalji Aasani,
Aged about 56 years,
Occupation : Business,
R/o. Itwari Bhaji Mandi, Nagpur. : APPELLANT
...VERSUS...
1. Shri Arvind s/o. Dhanuji Vyas,
Aged about 38 years,
Occupation : Unknown.
2. Smt. Bhanu w/o. Arvind Vyas,
Aged about 36 years,
Occupation : Housewife,
Both are r/o. Nr. Panchpaoli Temple
In Nitin Shende's House, Nagpur.
3. New India Assurance Company Ltd.,
Through Divisional Manager,
Patni Bhavan, Gandhibagh, Nagpur. : RESPONDENTS
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Shri P.K. Mishra, Advocate for the Appellant.
Miss Monali Pathade, Advocate for the Respondent Nos.1 and 2.
None for Respondent No.3.
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CORAM : S.B. SHUKRE, J.
th
DATE : 12
JULY, 2017.
ORAL JUDGMENT :
1. The appeal is taken for final disposal by consent.
2. Paper book is dispensed with.
3. Heard Shri P.K. Mishra, learned counsel for the appellant and
J-fa1132.15.odt 2/3
Miss Monali Pathade, learned counsel respondent Nos.1 and 2. None
appears for the respondent No.3.
4. Perused the record of the case.
5. The only point which arises for my determination is :
Whether this appeal deserves to be remitted back to
the Tribunal for a decision afresh ?
6. The main ground of opposition to the impugned award is
that no notice was duly served upon the appellant and the wrong finding
has been recorded in this regard by the Tribunal. Learned counsel for
the respondent Nos.1 and 2 disputes the proposition. According to her,
Navalkishor brother of this appellant received the notice on behalf of the
appellant and that he was a family member of the appellant.
7. On going through the endorsement made upon the
summons, I find that on the notice received by Navalkishor though it is
stated that it was received by brother of this appellant, no inquiry has
been made by the bailiff that Navalkishor was a member of the family of
the appellant. There is also no inquiry made by the bailiff to find out as
to whether or not this appellant and Navalkishor were joint in residence.
If no such inquiry has been made and no satisfaction has been reached by
the bailiff in this regard, the service of notice upon the brother of the
appellant would have to be said as having been done only on the basis of
an assumption, completely unfounded one, that Navalkishor was a
member of the Family of the appellant. Therefore, the service effected in
the instant case could not said to be a due and proper service. The
J-fa1132.15.odt 3/3
Tribunal has reached an erroneous conclusion not supported by any
evidence on record in this regard. The impugned judgment and order,
therefore, stand vitiated for violation of principles of natural justice and,
therefore, they deserve to be quashed and set aside. The point is
answered accordingly.
8. The impugned judgment and order are hereby quashed and
set aside.
9. The matter is remitted back to the Tribunal for a decision
afresh in the matter by following due procedure of law and decide the
matter preferably within one year from the date of appearance of the
parties.
10. The parties to appear before the Tribunal on 24th July, 2017.
11. The parties shall cooperate with the Tribunal in expeditious
disposal of the application filed under Section 166 of the Motor Vehicles
Act.
12. The amount deposited in this Court shall be transferred to
the Tribunal and it shall be invested in fixed deposit account with any
nationalized bank as per rules and it shall not be permitted to be
withdrawn by claimants till final disposal of the matter. No costs.
13. The appeal is disposed of accordingly.
JUDGE
okMksns
