Nasreen Samad Khan Pathan vs. Shrirang Rambilaschakra

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

FIRST APPEAL NO. 791/2007

1 Nasreen w/o Samad Khan Pathan

Age : 27 years, Occupation : Household,

R/o Balepir, Roshanpura, Aurangabad.

• 2 Arfazkhan s/o Samadkhan Pathan, Age : 12 years, Occupation : Education, R/o As above.
• 3 Arshil Fatema d/o Samadkhan Pathan Age : 10 years, Occupation : Education,
• 4 Sana d/o Samadkhan Pathan, Age : 04 years, Minor,
• 5 Shajara d/o Samadkhan Pathan,

Age : 1.6 years, Minor,

6 Hasanbi w/o Samadkhan Pathan

Age 58 yeas, Occupation : Household,

R/o As above.

...Appellants. (Original Claimants)

versus

1 Shrirang s/o Rambilascharka

Age 45 years, Occupation : Business,

R/o Shahu Nagar, Beed.

2 The Oriental Insurance Co. Ltd.

Through its Branch Manager,

Annabhau Sathe Chowk, Beed.

...Respondents (Original Respondents)

Mr. S.G. Chapalgaonkar, Advocate for appellant. Mr. U.S. Malte, Advocate for respondent no.2.

..........................

[CORAM : K.U. CHANDIWAL, J ]

DATE : 08th FEBRUARY, 2010.

ORAL JUDGMENT :

1 Heard.

2 By consent of the parties, the matter is finally heard and decided at the stage of admission.

3 The unfortunate death of the police constable Samadkhan Pathan in an accident dated 16032005, made the claimants – legal representatives to lodge Motor Accident Claim Petition before the learned Chairman, Motor Accident Claims Tribunal, Beed vide Motor Accident Claim Petition No.150/2005. The learned judge dismissed the same on the ground that jeep bearing registration No. MH23/C905 validly insured with Oriental Insurance Company, was not involved in the accident resulting death of Samad khan Pathan Khan, is questioned by the claimants in the present appeal.

4 Several contentions were addressed by both sides. Mr. Malte even attacked by addressing; it was a fraud played by the claimants being legal representatives of the deceased constable in connivance with police machinery to prepare false record.

5 At this stage of the matter, perusal of the issues framed by learned Judge, vividly demonstrate that the claimants were not invited and called upon to meet eventuality of the noninvolvement of the jeep in the accident and resultantly there was no evidence to this effect from the claimants.

6 The pleading of the owner of the vehicle or that of the Insurance Company before learned judge in unmistakable terms illustrated and accepted involvement of the said jeep in the accident. There would not be any apprehension in the mind of the claimants that they will be required to meet a situation of no involvement of the vehicle.

7 The issues framed by the learned judge referred at page 16 and particularly issue no.1 reads as under

"Issue no.1: Do claimants prove that the accident in question took place on 16th March, 2005 at about 7.30 to 7.30 p.m. on Manjarsumbha Neknoor road and that the deceased named Samadkhan s/o Sherkhan Pathan died due to rash and negligent driving on the part of driver of jeep bearing no. MH23/C905 which was validly insured with opponent no.2 the insurer during the period from 25012005 to 24012006, covering the date of accident ?"

8 Mr. Malte's contention that this issue covers the requirement to the claimants about involvement of the vehicle, in the light of above

discussion is incorrect.

9 The case of fraud though argued before this court, does not find place in pleading least evidence. I am avoiding to discuss the evidence as the required issue being wanting, its appreciation may influence the learned Judge.

10 The learned counsel for the claimants /appellants has relied on the judgment in First Appeal No. 1993/2009 (Laxmi and others v/s Sk. Sajjad) dated 04/01/2010 wherein in para 9 the Division Bench directed to frame issue "Whether the offending vehicle bearing No. MH30/F1051 owned by respondent no1 was involved in the accident.

11 Even if one skips to the judgment of the Division Bench as Mr. Malte canvassed, its facts are different, the center point in the present controversy can not be obliterated. The claimants were taken aback by the approach of the learned Judge who called court witnesses without there being a issue to adjudicate upon about the doubt in respect of involvement of the jeep in question. Consequently, the matter needs to be remitted to the learned judge for framing additional issue. I am inclined to grant sufficient time to the Insurance Company, hence longer date for appearance is fixed. Hence, order.

(a) The appeal is partly allowed.

(b) The order under challenge is set aside.

(c) The learned judge (Member, M.A.C.T., Beed) will frame additional issue to the effect; "Whether the jeep MH23/C905 was involved in the accident ?"

(d) The learned judge shall afford opportunity to both the sides to lead evidence as they deem fit including the opportunity to the Insurance company to make an application in terms of Section 170 of the Motor Vehicles Act and to lead evidence thereafter.

(e) No costs.

(f) The parties to appear on 25th March, 2010.

(g) After appearance, the learned judge shall decide the case within six months.

(h) The request of Mr. Malte to keep the matter in abeyance for eight weeks as he intends to approach Apex Court, is taken care already as parties to appear on 25/03/2010.

(i) Request rejected.

[ K.U. CHANDIWAL, J ]

tsk/fa791.07