Bombay High Court
Pradip S/O Sudhakarrao Alurwar vs Tahsildar, Chandrapur on 15 September, 2017
Bench: I.K. Jain
fa.307.10.jud 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL NO.307 OF 2010
Pradip s/o Sudhakarrao Alurwar,
Age 45 years, Occupation - Service,
R/o Chandrapur,
Tahsil & Dist. Chandrapur. .... Appellant
-- Versus -
01] Haridas s/o Laxman Atram,
(Deleted).
02] Tahsildar, Chandrapur,
Tahsil & Dist. Chandrapur.
03] United India Insurance Company Ltd.,
Through its Branch Manager,
Chandrapur,
Tahsil & District Chandrapur.
04] Ku. Saroj d/o Sudhakarrao Alurwar,
Age 34 years, Occupation - Nil,
R/o C/o Sudhakarrao Alurwar,
Near T.V. Center, Civil Lines,
Chandrapur, Tahsil & Dist. Chandrapur .... Respondents
Shri Amit Kinkhede, Adv. h/f Shri R.R. Vyas, Adv. for Appellant.
Ms. H.N. Jaipurkar, A.G.P. for Respondent No.2.
Shri M.R. Joharapurkar, Advocate for Respondent No.3.
CORAM : KUM. INDIRA JAIN, J.
DATE : SEPTEMBER 15, 2017.
ORAL JUDGMENT :-
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This appeal takes an exception to the judgment and
order dated 03/12/2009 passed by the Motor Accident Claims
Tribunal, Chandrapur (for short, 'the Tribunal') in M.A.C.P.
No.146/1999 thereby dismissing an application under Section
166 of the Motor Vehicles Act, 1988 (for short, 'the Act') filed by
the insured-appellant.
02] For the sake of convenience, parties shall be referred
in their original status as they were referred before the Tribunal.
03] The facts giving rise to the appeal may be stated in
nutshell as under :
i. Petitioner was working as Laboratory Assistant at
Chandrapur Engineering College and also as L.I.C.
Agent. On 16/05/1998, he was proceeding on Luna
towards his office. It is the contention of petitioner
that when he reached in front of FES Girls College,
Chandrapur, a Jeep bearing No.MZW-9911 driven by
opponent no.1 owned by opponent no.2 and insured
with opponent no.3 came in high speed and gave a
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dash to Luna of petitioner. He fell down and sustained
injuries on his left leg.
ii. Petitioner was admitted to a hospital of Dr. Dugdalwar
and then to General Hospital, Chandrapur. Later on,
he was shifted to Shushrut Hospital, Nagpur.
Petitioner underwent surgery in Shushrut Hospital and
his left leg was amputated. It is submitted that due to
vehicular accident, petitioner suffered 75%
permanent disability. He filed an application under
Section 166 of the Act and claimed compensation of
Rs.15,42,000/- along with interest thereon.
iii. It appears that driver of the vehicle did not contest
the claim petition. Opponent no.2, owner of vehicle
resisted claim by filing written statement. According
to opponent no.2, petitioner was riding Luna in a rash
and negligent manner and in an attempt to overtake
an auto-rickshaw, he dashed against the Jeep. It is
submitted that opponent no.1 was driving the vehicle
in slow speed and there was no fault on his part. The
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owner of vehicle, therefore, denied his liability to pay
compensation.
iv. According to insurer, offending vehicle was not
insured with the company at the relevant time and,
therefore, liability cannot be fastened to insurance
company.
v. On the rival contentions of the parties, Tribunal
framed issues at Exh.35. Parties examined their
respective witnesses and placed reliance on the
documentary evidence. Considering the oral and
documentary evidence, Tribunal found that
occurrence of accident due to sole negligence on the
part of opponent no.1 has not been established and
for want of insurance cover, opponent no.3 also was
not liable to pay compensation. Basically on these
two grounds, Tribunal dismissed the claim petition.
Being aggrieved thereof, petitioner has challenged
impugned judgment and order in the present appeal.
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04] Heard Shri Amit Kinkhede, learned Counsel for
appellant, Ms. H.N. Jaipurkar, learned Assistant Government
Pleader for respondent no.2 and Shri M.R. Joharapurkar, learned
Counsel for respondent no.3. Perused impugned judgment and
order, pleadings of parties and oral and documentary evidence
adduced by them.
05] It can be seen from the reasons recorded by Tribunal
to Issue No.2 relating to occurrence of accident due to sole
negligence on the part of opponent no.1 that Tribunal considered
only the oral evidence adduced by petitioner and of opponent
no.1. The police papers i.e. F.I.R. [Exh.53] and Spot-Panchnama
[Exh.54] totally escaped from the attention of the Tribunal.
There is no whisper in the entire judgment regarding F.I.R. and
Spot-Panchnama. It is evident that only upon considering the
evidence of petitioner and opponent no.1, Tribunal came to the
conclusion that negligence on the part of driver of offending
vehicle has not been proved.
06] In the light of the above and since the available
evidence has been missed by the Tribunal, it would be necessary
to remand the matter against respondent nos.1 and 2.
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07] So far as respondent no.3 is concerned, admittedly
there is no evidence on record to indicate that the offending
vehicle was insured with respondent no.3 at the time of
occurrence of accident. No document is produced to even
remotely suggest insurance cover to the vehicle at the relevant
time. In the absence of any evidence, Tribunal was right in
holding that insurance company is not liable to pay
compensation.
08] In the above premise, this Court finds that the
following order would sub-serve the ends of justice.
ORDER
I. First Appeal No.307/2010 is partly allowed.
II. The impugned judgment and order dated 03/12/2009
passed by the Motor Accident Claims Tribunal,
Chandrapur in M.A.C.P. No.146/1999 is quashed and
set aside to the extent of respondent nos.1 and 2.
III. Matter is remanded to the Tribunal for it's decision
afresh on merits in accordance with the law.
IV. As the accident is of the year 1998, Tribunal is
expected to decide the claim petition as
expeditiously as possible and in any case within
three months from the date of this order.
V. No costs.
*sdw (Kum. Indira Jain, J)
