[Cites 2, Cited by 0]
Bombay High Court
Mt. Rekha Gangaprasad Pandey And Ors. vs Mr. Rafique Kadar Mogul And An on 12 December, 2025
2025:BHC-AS:54761
S.S.Kilaje 901-FA-716-2023 (C)-Judgment.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 716 OF 2023
1 Rekha Gangaprasad Pandey
Aged about 28 years, Occ. Housewife
2 Master Adaresh Gangaprasad Pandey
Aged about 10 years, Occ : Student
3 Master Aditya Gangaprasad Pandey
Aged about 7 years, Occ : Student
Nos. 1 to 3 are residing at
Through natural guardian and mother
Smt. Rekha Gangaprasad Pandey
4 Mr. Harinath Pandey
Aged about 72 years, Occ : Agriculture
5 Smt. Nirmaladevi Harinath Pandey
Aged about 68 years, Occ : Housewife
Nos. 4 and 5 are residing at
Digitally signed
SONALI SATISH
by SONALI
SATISH Date:
KILAJE
2025.12.12
C/o. Vijay Shankar Shukla,
KILAJE 18:33:51
+0700
303, 3rd Floor, Panchsheel, 4/A, Raheja Township,
Malad(E), Mumbai - 400 097 ... Appellants
versus
1 Mr. Rafique Kadar Mogul .... Opposite
R/at. Laxmiprasad Compound, Party
Water side centre yard, Rohangaon, Village Old
Pune Road, Thane
2 Reliance General Insurance Co. Ltd.
Having registered office at Reliance Centre,
19, Walchand and Hirachand Marg,
Ballard Estate, Mumbai - 400 001 ... Insurer
............
Mr. Gauraj Shah a/w. Junaid Shaikh i/b. Mr. Santosh Upadhyay,
Advocate for the Appellant.
Mr. Pandit Kasar, Advocate for the Respondents.
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S.S.Kilaje 901-FA-716-2023 (C)-Judgment.doc
CORAM : R. M. JOSHI, J.
RESERVED ON : 4th DECEMBER, 2025.
PRONOUNCED ON: 12th DECEMBER, 2025.
P.C. :
1. This present first appeal is filed under Section 173 of the Motor
Vehicles Act, 1988, challenging the Judgment and Award dated
07.02.2019 passed by the Motor Accident Claims Tribunal, Thane, in
MACP No. 306 of 2012, which dismissed the Appellants' claim for
compensation following the death of Gangaprasad Harinath Pandey. The
Tribunal dismissed the claim based on the finding that the
Applicants/Appellants failed to prove the involvement of the alleged
offending vehicle and the negligence of its driver, concluding instead that
the deceased himself was negligent. The Appellants assailed the impugned
judgment of the Tribunal as being contrary to the evidence on record and
unjustified in law.
2. The facts leading to filing of the present appeal are narrated in
brief as under:
3. The deceased Gangaprasad Harinath Pandey, aged about 30
years at the time of death, earning approximately Rs.12,000/- per month,
and was the sole earning member supporting his wife, two minor children,
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and aged parents. On 26.08.2010, at around 4:00 a.m., he was riding his
motorcycle Bajaj Discover MH-03/AA-3061 over Vashi Bridge, proceeding
towards Navi Mumbai. The Applicants state that the stretch of the bridge
where the accident occurred was at the relevant time dark, slippery due to
rainfall, and riddled with trenches and potholes owing to ongoing road
repairs. In these conditions, a Container, alleged to be bearing registration
MH-04/CP-5833 (alternatively appearing as MH-04/CT-5833 in some
records), was found illegally, unauthorized and dangerously stationed in
the middle of the carriageway. It is case of the Applicants that the said
Container was stationary without tail lamps, hazard lights, reflectors,
cones, or any warning indicators, in clear violation of the Motor Vehicles
Act and Rules. Consequently, in the darkness and heavy rainfall, the
deceased could not perceive the stationary Container in time and his
motorcycle collided with it.
4. The impact caused the deceased to sustain severe head injuries
and due to which he fell on the roadway and succumbed instantaneously.
The deceased was transported to M.M.C. General Hospital, Vashi, where
the Post-Mortem Report (No. 732/BVJ/2010) recorded the cause of death
as "Haemorrhage and shock due to multiple injuries." Multiple fractures
and traumatic injuries were noted, consistent with collision against a heavy
commercial vehicle. It is also asserted that the offending vehicle was
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driven by the employee of Respondent No.1 and that it belonged to him. It
was allegedly being driven and stationed in a dangerous and negligent
manner, and had the driver exercised due care, the death could have been
surely avoided. The Applicants had claimed a total compensation of
Rs.20,52,000/-, which includes Rs.16,32,000/- for the loss of the
deceased's future earnings that the family depended on, Rs.1,00,000/- for
the emotional loss suffered by his minor children, Rs.2,00,000/- towards
the loss of consortium and estate, and Rs.20,000/- to meet the funeral
expenses. It is pleaded that the deceased would have had a normal life
expectancy of 65 years, and his family has suffered not only emotional
trauma but a catastrophic financial collapse.
5. Opponent No.2- Insurer resisted the petition by filing written
statement at Exh. 16. The Respondents, specifically the insurer disputed
the identity, ownership, and insurance of the vehicle. RTO records
indicated MH-04/CT-5833, which is a Maruti Alto (light motor vehicle)
under a different ownership. It is submitted that the petition suffers from
non-joinder of necessary parties as the driver of offending vehicle is not
made party. It is submitted that there is willful breach of terms and
conditions and submission of policy as driver of the offending vehicle was
not holding valid and effective license and therefore, insurer is not liable to
pay the compensation. The Insurer also contended that the vehicle bearing
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registration No. MH-04/CP-5833 was not insured with them and that the
policy was there of MH-04/CT-5833, which is recorded in the RTO extract
as a Maruti Alto (light motor vehicle) and therefore cannot possibly be the
Container alleged to have caused the accident. Respondent No.1 denied
ownership of the vehicle described by the claimants and disclaimed all
liability. During course of arguments amongst other contentions it is
argued that in any case none of the vehicle is insured with this insurer.
6. Perusal of the R & P of Petition before Tribunal, indicates that
the claim of the claimants is about involvement of vehicle bearing
Registration No. MH-04/CP-5833. The Tribunal however framed following
issue.
"Whether the claimants prove that deceased Gangaprasad
Harinath Pandey died in Vehicular accident on 26/8/2010
caused by vehicle no. MH-04/CT-5883 by rash and
negligent act of driver ?"
7. At this stage, this Court cannot go into the issue with regard to
the corrections made in the Claim Petition and cannot record findings as to
when corrections came to be made. Suffice is to say that the issue raised
by Tribunal is not in consonance with pleadings of claimants. Obviously,
the framing of incorrect issue led to entirely misdirected trial.
8. The Tribunal considered the police papers, spot panchanama,
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post-mortem report, and the deposition of PW-1 Vijay Shukla, but
ultimately concluded that there is discrepancy in the vehicle's registration
number which was fatal to the claim, and that the involvement of the
alleged offending vehicle itself has not been established. The Tribunal
concluded that the deceased himself was negligent, and dismissed the
claim. Instead of remaining passive adjudication the Tribunal ought to
have consider the issue involved in the Claim Petition of there being
evidence to indicate involvement of container in the occurrence of accident
and ought to have looked into the possibility of the wrong recording of the
registration No. i.e. "CP or "CT". It is necessary to take note of the fact that
the police papers cannot be treated as final word on the manner of
accident or non involvement of vehicle, including Registration number
shown therein. It is always open for parties to lead evidence to prove
otherwise. In case of appropriate issue being framed, the parties could
have led evidence accordingly but for want of proper issues the said
opportunity it lost by them and which has led to miscarriage of justice.
9. The case therefore requires fresh adjudication by giving all
parties a fair opportunity to plead as well as lead evidence on the issues
such as identity of the vehicle, negligence, and insurance coverage. No
prejudice will be caused to either side by remanding the matter back to
Tribunal to decide the claim afresh.
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10. As a result of above discussion the following order-
ORDER
i. The Judgment and Award dated 07.02.2019 in M.A.C.P.
No. 306 of 2012 is set aside.
ii. The matter is remitted to the Motor Accident Claims
Tribunal, Thane, for trial de novo.
iii. Parties are permitted to amend pleadings with addition or
deletion of parties.
iv. It is open for the parties to produce additional evidence,
including but not limited to RTO verification, insurance
documents, police diary entries, container related
documents and any other material relevant to the case.
v. All defenses of respondents are kept specifically open.
vi. Since the original proceeding is of year 2012, the Tribunal
to decide the Claim afresh within a period of 9 months from
1st January, 2026.
(R. M. JOSHI, J.)
