Partly allowed

The Oriental Insurance Co. Ltd. Thr. Divisional Office v. Baldevsingh Narsingh Jadhav and Anr.

Bombay HC10 Dec 2012FA/762/2012

Case brief

AI extract

What is this about?

The High Court allowed this appeal partly, quashing the Tribunal's award under Section 166 of the Motor Vehicles Act for lacking evidence discussions. The matter was remanded to the Tribunal for a fresh hearing where parties may adduce evidence on negligence and income before final disposal.

What did the court decide?

Impugned judgment and award quashed and set aside; matter remanded to Tribunal for fresh hearing within six months.

The Oriental Insurance Co. Ltd. Thr. Divisional Office… — Motor Accident Claims | Bombay HC (2012)

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1 fa 762.12

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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FIRST APPEAL NO. 762 OF 2012

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The Oriental Insurance Co. Ltd., Through its Branch Manager, Jalgaon Divisional Office, Jalgaon, Through its authorized signatory, Mr. Arvind kumar Ravikar S/o Motilal, Age : 51 Years, Occu. : Service, Sr. Div. Manager, Oriental Insurance Co. Ltd., R/o Aurangabad. .. Appellant

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Versus

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Baldevsingh Narsingh Jadhav, Age : 38 Years, Occu. : Service, R/o Yashwant Nagar, Plot No. 107, Jalgaon, Dist. Jalgaon.

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Bansikumar S. Mathurya, Age : 48 Years, Occu. : Business, R/o Vishwakarma Plywood Centre, Near Railway Gate, Bajwa, Dist. Barod (Gujrath). .. Respondents

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Shri Dhananjay Deshpande, Advocate for the Appellant. Shri G. V. Wani, Advocate for the Respondent No. 1.

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CORAM : S. V. GANGAPURWALA, J. DATE : 10TH DECEMBER, 2012.

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2 fa 762.12

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ORAL JUDGMENT :

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. With the consent of parties taken up for final hearing.

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The respondent No. 1 herein had filed claim petition U/Sec. 166 of the Motor Vehicles Act. The said petition was partly allowed. The present appellant and the respondent No. 2 were jointly and severally made liable to pay Rs. 6,88,135/- to the present respondent No. 1. The Insurance Company has assailed the said judgment and award in the present appeal.

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Shri Deshpande, the learned counsel for the appellant submits that, the Tribunal while allowing the said claim petition has not at all discussed the evidence on record. The salary certificate issued by the employer has been disbelieved by the Tribunal on the ground that the same is not proved, still the Tribunal has considered the notional income as Rs. 4,500/-. The Tribunal ought to have considered the notional income of Rs. 3,000/- per month. The learned counsel further contends that, the driver of the vehicle was not examined and there is no discussion about the panchanama, FIR and the deposition while coming to the conclusion about the fact of negligence of the driver of the tanker. The Insurance Company has specifically denied

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3 fa 762.12

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the said facts in its written statement. The Tribunal has delivered the judgment without considering and discussing the evidence on record. The learned counsel submits that the said judgment is illegal and does not stand to any reason. The driver of the tanker was not at all negligent.

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Shri Wani, the learned counsel submits that the appellant has not led any evidence. In absence of evidence the Court has rightly come to the conclusion. The respondent No. 1 is a Computer Manager Executive and the income of Rs. 4,500/considered is at lower side. There was no reason not to consider the income of the respondent No. 1 as Rs. 7,000/- per month. The learned counsel submits that the judgment is legal and proper needs no interference.

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With the assistance of learned counsel I have gone through the judgment and written statement.

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While answering issue No. 1, the Tribunal has observed thus, on perusal of police papers and Insurance policy, it is quite clear that the accident was caused because of the negligence of the driver of the tanker owned by the respondent No. 1 and

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4 fa 762.12

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insured with the respondent No. 2 and as such, the respondents are liable to compensate the petitioner. There is no discussion worth the name in respect of said police papers and the oral evidence on record. The Tribunal was finally deciding the said petition U/Sec. 166 of the Motor Vehicles Act and not U/Sec. 140. The Tribunal was required to discuss the evidence on record documentary as well as oral while coming to the conclusion about the factum of negligence. The judgment nowhere depicts the same.

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The Tribunal has observed that the certificate produced by the respondent No. 1 of Rs. 7,000/- per month cannot be considered in absence of cogent proof probably because the person who has issued the said certificate has not been examined.

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Taking into consideration all the aforesaid facts, I am inclined to remit the matter back by setting aside the impugned judgment and award. So also giving an opportunity to the parties to adduce evidence.

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In the light of the above, the impugned judgment and

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5 fa 762.12

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award is quashed and set aside. The parties are relegated before the Tribunal. The parties shall appear before the Tribunal on 07th January, 2013. The respondent No. 2 though served has not appeared before this Court. The Tribunal may issue the notice to the respondent No. 2 herein.

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The parties are entitled to adduce evidence i. e. the present respondent No. 1/claimant may adduce his evidence in respect of his proof of income, the disability certificate and negligence. So also the Insurance Company may adduce evidence on the aspect of negligence. The Tribunal shall thereafter decide the claim petition expeditiously and preferably within a period of six months from the date of appearance.

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It is also brought to my notice that, the doctor has not been examined to prove the disability certificate. The respondent No. 1/claimant may also examine the doctor. The first appeal is partly allowed and disposed of.

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It is submitted that the amount pursuant to the orders of this Court is deposited in this Court. The said amount be transmitted to the Tribunal. Some amount is also deposited

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6 fa 762.12

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before the Tribunal pursuant to execution proceedings. The Tribunal shall keep the said amount in fixed deposit of any nationalized bank till the disposal of claim petition and shall disburse the amount to the party as per the judgment delivered by the Tribunal.

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Sd/-

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[ S. V. GANGAPURWALA, J. ]

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bsb/Dec. 12

The Oriental Insurance Co. Ltd. Thr. Divisional Office v. Baldevsingh Narsingh Jadhav and Anr.

Case brief

What is this about?

What did the court decide?

The Oriental Insurance Co. Ltd. Thr. Divisional Office v. Baldevsingh Narsingh Jadhav and Anr.

Case brief

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What did the court decide?

What the court decided

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