Ravindra Ramkisan Lodhi vs Balu Daulat Patil And Ors
2017 Latest Caselaw 2801 Bom

                                      1                     FA No.621/2002

           IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                      BENCH AT AURANGABAD

                        FIRST APPEAL NO.621 OF 2002

  Ravindra s/o Ramkisan Lodhi
  Age:32 Yrs., occu. Agril.
  R/o Shindad, Tq. Pachora,
  District Jalgaon.                          =    APPELLANT
                                              (Orig. Petitioner)
           VERSUS

  1)       Balu Daulat Patil 
           Age: 30 yrs., occu. Driver,
           R/o Shindad, Tq. Pachora,
           District Jalgaon.

  2)       Sahebrao Daulat Patil
           age: 35 Yrs., occu. Tractor
           Owner and Agril.
           R/o Shindad, Tq. Pachora,
           Dist. Jalgaon.

  3)       New India Insurance Co.Ltd.
           The Branch Manager,
           Jalgaon.                          =    RESPONDENT/S 
                                             (Orig.Respondents)
                                   -----
  Mr. VT Choudhari, Advocate for Appellant;
  Respondent Nos.1 & 2 duly served.
  Mr. SG Chapalgaonkar, Adv.for Respondent No.3.
                                   -----
                               CORAM :  P.R.BORA, J.

DATE : 6 th

June,2017.

ORAL JUDGMENT:

1) Heard the learned Counsel appearing for

the parties.

2) "Whether a person contacting a second

marriage can be held entitled to receive the

compensation on account of the accidental death

of his first wife, living along with him ?" is a

short question involved in the present appeal.

3) The judgment delivered by Motor Accident

Claims Tribunal, Jalgaon (for short, the

Tribunal) in MACP No. 297 of 1998 has given rise

for filing the present appeal, whereby the claim

petition, filed by the present appellant claiming

compensation on account of death of his wife in a

vehicular accident, has been rejected on the

ground that the appellant has contacted a second

marriage and hence he cannot be held to be a

legal heir of the deceased who is his first wife.

4) It was the case of the appellant that

his wife, viz. Shobhabai, suffered the accidental

death while travelling in a trailer bearing

registration No. MH-19-J-2310, which was attached

to the tractor bearing registration No. MH-19/C

2504. The Tribunal though has answered all other

issues relating to negligence of the d river of

the insured vehicle in occurrence of the alleged

accident, about its ownership and coverage of

insurance etc. in favour of the appellant, has

ultimately rejected the claim petition on the

ground that the appellant failed to prove that he

is the legal representative of deceased

Shobhabai.

5) Shri Choudhari, learned Counsel

appearing for the appellant, submitted that on

wholly erroneous ground the Tribunal has

dismissed the petition. The learned Counsel

taking me through the evidence on record,

submitted that what has come on record is the

fact that the present appellant got second time

married with sister of deceased Shobhabai, viz.

Sangita and had children out of the said wedlock.

The learned Counsel submitted that nothing has

come on record to show that deceased Shobhabai

was not the wife of the appellant. The learned

Counsel further submitted that nothing has also

come on record to show that the present appellant

had taken divorce from deceased Shobhabai and no

relationship was in existence between the

appellant and deceased Shobhabai on the date of

the accident. The learned Counsel, therefore,

prayed for setting aside the finding recorded by

the Tribunal leading to the dismissal of the

petition and consequently to allow the claim

petition filed by the appellant.

6) Shri Chapalgaonkar, learned Counsel

appearing for the insurance company, fairly

conceded that the finding recorded by the

Tribunal on Issue No.1 cannot be sustained. The

learned Counsel further submitted that since no

order was passed against the insurance company,

saddling any liability on it, no appeal has been

filed on behalf of the insurance company. The

learned Counsel sought to canvass that the

finding recorded by the Tribunal on Issue No.6

needs to be interfered with since the Tribunal

has misconstrued the provision and has failed to

appreciate that the deceased was travelling in a

trolley, which was attached to the tractor

admittedly meant for the agricultural purposes

and breach of policy conditions was therefore

quite evident. The learned Counsel submitted that

the said aspect also needs to be looked into by

this Court while deciding the present appeal.

7) After having considered the submissions

advanced by learned Counsel appearing for the

parties and on perusal of the impugned judgment

and the material on record, I have no hesitation

in setting aside the finding recorded by the

Tribunal on Issue No.1. It is nobody's case that

deceased Shobhabai was not the wife of the

present appellant. Even if it is accepted that

the appellant contacted second marriage, in

absence of any evidence to the effect that the

appellant obtained divorce from deceased

Shobhabai, it cannot be held that there was no

relationship between deceased Shobhabai and the

appellant. From the undisputed facts on record,

on the date of accident the relationship of

husband and wife was quite in existence between

the appellant and deceased Shobhabai. Appellant,

therefore, has to be held as the legal heir of

deceased Shobhabai. The finding recorded by the

Tribunal that the appellant cannot be said to be

the legal representative of deceased Shobhabai,

is thus apparently incorrect and deserves to be

set aside.

8) As noted by me earlier, the other issues

in respect of occurrence of the accident and the

aspect of negligence are concerned, the Tribunal

has answered the said issues in favour of the

appellant. The Tribunal However did not determine

the amount of compensation in view of the finding

recorded by it on Issue No.1. I, therefore, deem

it appropriate to remit back the matter to the

Tribunal so as to assess the amount of

compensation on the basis of evidence placed on

record by the parties and pass the award

accordingly.

9) In view of the fact that the claim

petition was filed in the year 1998, the Tribunal

is directed to determine the amount of

compensation and pass the Award expeditiously and

preferably within the period of three months. The

parties are directed to appear before the

Tribunal on 3rd July, 2017.

10) Though, it was sought to be canvassed by

Shri Chapalgaonkar, learned Counsel appearing for

the insurance company, that from the material

available on record itself the finding recorded

by the Tribunal that there is no breach of policy

condition can be set aside and the learned

Counsel, therefore, prayed for setting aside the

said finding and consequently exonerate the

insurance company from its liability to indemnify

the insured, in absence of any specific challenge

raised by the insurance company in that regard,

may be for the reason that the petition itself

was dismissed and no liability was saddled on the

insurance company, I am unable to accept the

submission so made.

11) The first appeal stands allowed in the

aforesaid terms. Pending Civil Application if

any stands disposed of.

(P.R.BORA) JUDGE

bdv/