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2018 Supreme(Bom) 1420
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
P.R. BORA, J.
Smt. Pushpa Bajirao Thorat & Ors. - Petitioners
Versus
Dnyaneshwar Kondaji Auti Died & Ors. - Respondents
65 First Appeal No.755 of 2018 with Civil Application No.9837, 9838 of 2018
Decided On : 18-09-2018
For the Petitioners: Shri R.R. Karpe.
For the Respondents: Shri V.N. Upadhye.
Headnote:
Civil Procedure Code,1908 - Section 151 - Rule 3 - Order XX - Motor Vehicles Act, 1988 - Section 166 - Motor Accident Claim - Insurance Company - Case of appellants deceased was proceeding on his Motorcycle and was dashed by aforesaid Pick Up Van and in accident so happened he was severely injured- Though he was immediately removed initially to Hospital and then was shifted to Surya Hospital and then also taken to Sasoon Hospital could not survive and succumbed to injuries appellants had alleged that accident happened because of sole negligence of driver of Pick Up Van driver of Pick Up Van himself was its owner- He filed his written statement and opposed claim- Respondent Insurance Company had also filed its written statement and though disputed claim of appellants on various grounds did not dispute that offending vehicle was insured with it and insurance policy was in force on date of accident- Insurance Company had raised an objection alleging breach of terms and conditions of insurance policy by owner of vehicle and has disowned liability to indemnify -Held, Court by Tribunal and claim petition was declared to have been dismissed on ground that legal heirs of deceased owner of vehicle were not brought on record by claimants application was presented by claimants seeking permission and consequent amendment for taking on record legal heirs of said deceased owner of vehicle before Judgment was signed by Tribunal stated earlier Tribunal has answered Issue Nos-1 to 4 in favour of claimants- In circumstances bringing on record legal heirs of deceased opponent was mere a formality- From impugned Judgment it is explicit that Tribunal was otherwise fully convinced and had formed opinion that claimants were entitled for award of compensation but was constrained to dismiss petition on ground that legal heirs of deceased opponent were not taken on record- It appears to me that filing of an application by claimants in fact was an opportunity for Tribunal to exercise its discretion so as to prevent injustice which was likely to be caused to claimants who were legally entitled for award of compensation in their favour- It was well within competence of Tribunal since that time it had not signed Judgment- learned Tribunal failed in appreciating import of Code of Civil Procedure- It cannot be forgotten that Courts and Tribunals are constituted for doing Justice to parties and as such where circumstances warrant Courts and Tribunals as case may be are expected to exercise their discretion to do real and substantial justice for administration of which alone they exist –Court reiterate that taking on record legal heirs of deceased opponent had remained only a formality- Allowing application was not likely to result in any change in findings recorded by Tribunal on core issues involved in matter and was also not likely to cause any prejudice to respondent Insurance Company since even otherwise liability to satisfy award to be passed was on Insurance Company- Tribunal must have also taken into account that Motor Vehicles beneficial legislation Act empowers Tribunal to follow such summary procedure as it thinks fit in holding enquiry Section Motor Vehicles Act- Tribunal failed in exercising discretion vested in it though present was a fit case for exercising such discretion - Appeal allowed
1. Heard finally with the consent of the learned Counsel for the parties.
2. Following two questions fall for my consideration in the present appeal:
“(I) Failure on the part of the claimants in bringing on record the legal heirs of the owner of the offending vehicle, who died during pendency of the claim petition and in whose favour a certificate of insurance had been issued, whether would result in dismissal of the claim petition on that ground ?
(II) Whether the application filed by the appellants at Exh.48 for bringing on record the legal heirs of deceased opponent No.1, after pronouncement of the Judgment by the Tribunal in the open Court, was liable to be considered by the Tribunal since by that time the Judgment was not signed by the Tribunal ?”
3. The Motor Accident Claims Tribunal, Ahmednagar, has dismissed the claim petition filed by the present appellants on the said ground vide Judgment dated 02.08.2017 in Motor Accident Claim Petition No.287 of 2010, and has also rejected the application at Exh.48 seeking leave to bring on record the legal heirs of deceased opponent No.1. Both these orders are challenged in the present appeal.
4. The appellants had filed Motor Accident Claim Petition No.287 of 2010 before the Motor Accident Claims Tribunal at Ahmednagar under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as the 'M.V. Act') seeking compensation on account of death of Bajirao Laxman Thorat in a vehicular accident happened on 09.01.2010 having involvement of a Pick Up Van bearing registration No. MH 16 Q7867 owned by deceased respondent No.1 and insured with respondent No.2.
5. As per the case of the appellants, deceased Bajirao was proceeding on his Motorcycle and was dashed by the aforesaid Pick Up Van and in the accident so happened, he was severely injured. Though, he was immediately removed initially to the Pathare Hospital and then was shifted to Surya Hospital and then also taken to Sasoon Hospital, could not survive and succumbed to the injuries on 21.01.2010. The appellants had alleged that the accident happened because of the sole negligence of driver of the Pick Up Van. The driver of the Pick Up Van himself was its owner. He filed his written statement and opposed the claim. Respondent No.2 Insurance Company had also filed its written statement and though, disputed the claim of the appellants on various grounds, did not dispute that the offending vehicle was insured with it and the insurance policy was in force on the date of the accident. The Insurance Company had raised an objection alleging breach of terms and conditions of the insurance policy by the owner of the vehicle and has disowned the liability to indemnify him.
6. On the rival pleadings of the parties, the issues were framed by the Tribunal and the trial of the claim petition was proceeded further. I deem it appropriate to reproduce herein below the issues framed by the Tribunal and the finding recorded by it on each of the said issue.
Issues
Findings
1
Whether applicants prove that Bajirao Laxman Thorat died in motor vehicle accident dated 09.01.2010 ?
In the affirmative.
2
Whether applicants further prove that the accident took place due to rash and negligent driving of Pick Up Van bearing No. MH16Q/ 7867 by its driver ?
In the affirmative.
3
Whether opponent No.1 proves that accident took place due to rash and negligence driving of motorcycle No.MH04AF/ 1485 by the deceased himself ? ..
In the negative.
4
Whether opponent No.2 proves that owner of pickup van bearing No. MH16Q/ 7867 opponent No.1 has committed breach of terms and conditions of insurance policy ?
In the negative.
5
Are applicants entitled for compensation? If yes, to what extent and from whom ? ..
In the negative.
6
What order and Awar
