Smt. Vanchala @ Vanchhala Wd/O ... vs Ravi Telgote And Others
2022 Latest Caselaw 11839 Bom

4-MCA-442-19                                                                                                                     1/4


                       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                 NAGPUR BENCH, NAGPUR.

                        MISC. CIVIL APPLICATION NO.442 OF 2019 (REVIEW)
                                               IN
                                   FIRST APPEAL NO.92 OF 2009

               Vanchala @ Vanchhala wd/o Gulabrao Tayade, Akot, Dist. Akola and anr.
                                                                 -vs-
                                                    Ravi Telgote and ors.
--------------------------------------------------------------------------------------------------------------------------------------
Office notes, Office Memoranda of
Coram, appearances, Court's orders                                     Court's or Judge's Orders.
or directions and Registrar's orders.


                                   Shri C. A. Joshi, Advocate for applicants.
                                   Shri V. B. Bhise, Advocate for respondent Nos.1 and 2.

                                                     CORAM : A. S. CHANDURKAR ,J.

DATE : November 18, 2022

P. C.

Civil Application Nos.633/2022 and 901/2022 The applicants are permitted to raise additional grounds in the review application.

Civil Application are disposed of accordingly.

Misc. Civil Application No. 442/2019

The non-applicant No.3 has been duly served with the

present application. There was no appearance on behalf of said

non-applicant on 21/10/2022. There is no appearance on its

behalf even today.

The learned counsel for the applicants and non-applicant

Nos.1 and 2 have been heard.

4-MCA-442-19 2/4

2. According to the learned counsel for the applicants

having found that the Claim Tribunal was not justified in suo

motu converting the proceedings from one under Section 166 of

the Motor Vehicles Act, 1988 (for short, the said Act) to

proceedings under Section 163A of the said Act, the evidence

on record ought to have been examined by considering the claim

petition as one under Section 166 of the said Act. Referring to

the spot panchanama at Exhibit-33 it is submitted that the

trolley on which the deceased was sitting was loaded with gitti

and as a result of its tyre having punctured, the deceased

suffered a fall resulting in fatal injuries. Despite such statements

made in the spot panchanama, it was incorrectly pleaded in the

claim petition that after unloading the trolley its tyre got

punctured resulting in fatal injuries to the deceased. It is

submitted that if the spot panchanama at Exhibit-33 is

considered the same indicates that the death was caused while

travelling in the loaded trolley especially as the deceased was a

labour. It is further submitted that while hearing the appeal,

request was made on behalf of the present applicants to treat the

proceedings under Section 166 of the said Act for the reason

that conversion in the proceedings under Section 163A of the

said Act was found to be improper. This request was not 4-MCA-442-19 3/4

considered while deciding the appeal. On this count, it is

submitted that the judgment dated 27/02/2019 in the First

Appeal be recalled and the appeal be re-heard.

The aforesaid request is opposed by the learned counsel

for non-applicant Nos.1 and 2 by submitting that the appeal has

been decided after considering all the material on record. There

was no error apparent on the face of record.

3. I have considered the submissions as urged and I have

also gone through the evidence available on record. Perusal of

spot panchanama at Exhibit-33 does not indicate that the trolley

was loaded when the accident in question took place as a

consequence of the rear tyre being punctured. It is seen that in

the claim petition it has been pleaded that the accident occurred

when the tractor-trolley was returning after unloading. The

claimants were not witness to the accident in question. If the

statements made in the spot panchanama are considered, it

becomes clear that the tractor-trolley was found to be loaded

with gitti when its rear tyre was punctured. If said aspect is

considered, it would be open for the applicants to urge the

aspect of negligence so as to sustain the application under

Section 166 of the said Act coupled with the fact that an oral 4-MCA-442-19 4/4

prayer was made on behalf of the applicants for treating the

proceedings as under Section 166 of the said Act which request

was not considered in the judgment under review. Since the

effect of Exhibit No.33 has not been considered in the light of its

contents, there is an error apparent on the face of record. Thus

an opportunity deserves to be granted to the applicants to re-

argue the appeal on merits. Hence a case for exercising review

jurisdiction is made out.

For aforesaid reasons the judgment dated 27/02/2019 in

First Appeal No.92/2009 is recalled.

The Misc. Civil Application is allowed.

First Appeal No.92/2009 is restored for fresh adjudication

on merits.

Misc. Civil Application is disposed of. No costs.

(A. S. Chandurkar, J.)

Asmita

Digitally signed byASMITA ADWAIT BHANDAKKAR Signing Date:21.11.2022 19:02:23