1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD FIRST APPEAL NO. 3155 OF 2009 1. Smt. Maltibai w/o. Purushottam Kothale, Age 39 yrs., Occu. Household, R/o. N-9-K- Pawannagar, Sharad Hotel, HUDCO, Aurangabad. 2. Kum. Vandana d/o. Purushottam Kothale, Age 20 yrs., Occu. Education, R/o. As above. 3. Ku. Rahul s/o. Purushottam Kothale, Age 18 yrs., Occu. Education, R/o. As above. 4. Kum. Ashwini d/o. Purushottam Kothale, Age 16 yrs., Occu. Education, R/o. As above. 5. Shri. Baburao s/o. Bhauappa Kothale, Age 71 yrs., Occu. Agri., R/o. As above. 6. Saw. Vimalbai w/o. Baburao Kothale, Age 63 yrs., Occu. Household, R/o. As above. ....Appellants. (Ori. claimants) Versus 1. The National Insurance Company Ltd. Through its Branch Manager, Hajari Chamber, Station Road, Aurangabad. 2. Syed Rajjuddin s/o. Syed Amir, Age Major, R/o. Village Karankheda, Tq. Kannad, Dist. Aurangabad. 2 3. Shaikh Ayub s/o. Shaikh Khan Mohd, Age Major, Occu. Driver, R/o. Village Karankheda, Tq. Kannad, Dist. Aurangabad. ....Respondents. (Ori. respondents.) Shri. R.V. Gore, Advocate for the appellants. Shri. D.S. Kulkarni Advocate h/f. Shri. S.L. Kulkarni, Advocate for the respondent No. 1. Shri. M.D. Joshi, Advocate for respondent Nos. 2 and 3. CORAM : K.U. CHANDIWAL J. DATE : 29th April, 2010 ORAL JUDGMENT : 1. Admit. Heard finally. The dismissal of M.A.C.P. 91/2005 by learned Member, M.A.C.T., Aurangabad dated 30th October 2007 is questioned by the claimants. 2. For the purpose of present appeal, the factual matrix relevant to the case is, deceased Purushottam, aged 39 yrs., was plying motor cycle No. MH-20/AC-5707, on his way from Daulatabad to Aurangabad, near Padegaon, he dashed against the stationary matador No. MWN/3774. The accident has taken placed at about 23.00 hrs. on 24.3.2004. It is alleged that the matador has no blinkers or any indication or its position on road. 3 3. The driver of the matador was not examined nor any pleadings are tendered before the learned Judge. The claimants, rationally having no knowledge as to how the accident has taken place, could not assert any material particulars branding the negligence to the matador driver. However, one Sharifkhan Pathan who has witnessed the event, he having removed the deceased from the spot to hospital, could have been examined, however, it is not so done. The panchanama in unequivocal terms illustrate that there was no indication to the matador at its backside about the blinkers or any radium or to illustrate that it was stationary. 4. The dismissal has certainly caused prejudice to the claimants. The claimants, in the set of above referred fact, could not alone be blamed. The fact remains, the evidence which was required to be adduced from both sides, is not surfacing. The order under challenge consequently requires interference. It is set aside. The matter is remanded to the learned Judge to decide it afresh by allowing the claimants to lead evidence and also by allowing the respondents matador owner/driver to lead evidence in support of their defence. It is for the learned Judge to decide or to entertain pleadings from the respondents, as there was no such pleadings at the material time. The respondents matador owner and the driver to pay cost of Rs. 10,000/- (Rs. ten thousand) to the claimants within three months. The learned Judge shall endeavour to 4 dispose of the matter within six months of receiving the communication/report. Office to immediately send the record to the learned Judge. The parties to appear before the learned Judge on 9th of June 2010. Appeal is partly allowed. [ K.U. CHANDIWAL J.] ssc/fa3155.09