1 F.A. NO. 2959/2009 - ( J ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO. 2959 OF 2009 Ramdas Sahebrao Hange Age : 47 Yrs., Occ. Business, R/o : Padali, Tq. Shirur (Kasar), Dist. Beed. .... APPELLANT V E R S U S 1. The New India Assurance Company Ltd. Through its Branch Manager, Ashiyana Building, Jalna Road, Beed. 2. Begum W/o Jamshed Momin Age : 43 Yrs., Occ. Household, R/o : Mominpura, Beed Tq. & Dist. Beed. 3. Momin Matin S/o Jamshed Momin Age : 17 Yrs., Occ. Nil. 4. Momin Mujib S/o Jamshed Momin Age : 16 Yrs., Occ. Nil. 5. Momin Moin S/o Jamshed Momin Age : 15 Yrs., Occ. Education 6. Irfin D/o Jamshed Momin Age : 14 Yrs., Occ. Education 7. Afrin D/o Jamshed Momin 2 F.A. NO. 2959/2009 - ( J ) Age : 9 Yrs., Occ. Education Nos. 3 to 7 are minor U/g of mother Begum W/o Jamshed Momin – Resp.no. 2 8. Momin Ahmed S/o Amir Age : 60 Yrs., Occ. Nil. R/o : Mominpura, Beed. 9. Moin Chhotibai W/o Ahmed Age : 55 Yrs., Occ. Household, R/o : Mominpura, Beed. .... RESPONDENTS -------------------------------------------------------------------------------------------------------- Mr. V.A.Dhakane, Advocate for appellant Mr. D.S.Kulkarni, Advocate for respondent no. 1. Mr. S.K.Naikwade, Advocate for resp. nos. 2 to 9. -------------------------------------------------------------------------------------------------------- CORAM : S.V. GANGAPURWALA, J. DATE: 07/09/2010 ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith. With the consent of the learned counsels for the parties, this Appeal is heard finally at the stage of admission. 3 F.A. NO. 2959/2009 - ( J ) 2. Heard respective counsels for the parties. 3. The present appellant is the original defendant no. 1. The present respondent nos. 2 to 9 had filed claim petition under the provisions of the Motor Vehicles Act for compensation on account of the death of deceased Momin Jamshedji. The original applicant no. 1 is the wife of the deceased. The applicant nos. 2 to 6 are the sons and the daughters of the deceased and applicant nos. 7 and 8 are the parents of the deceased. 4. It is the case of the applicants that on 15/1/2006, the deceased was driving rickshaw on Solapur – Beed road. At that time, one Tanker bearing registration No. MH-23/2265 was being driven by the driver in a rash and negligent manner. It gave dash to the said rickshaw and the deceased Momin died on the spot. The claimants did not array the driver of the offending vehicle as party defendant in the claim petition. The present appellant is the owner of the said offending vehicle. The Presiding Officer, Motor Accident Claims Tribunal, Beed vide its Award dated 18/02/2009, partly allowed the claim petition of the applicants granting compensation of Rs. 3,50,000/-. The Tribunal made the present appellant liable to pay the said amount, exonerating the Insurance company. 5. The present appellant has assailed the said order of the Tribunal 4 F.A. NO. 2959/2009 - ( J ) exonerating the insurance company to pay the compensation. 6. The learned counsel for the appellant has strenuously contended that it was on record that one Bajirao Shinde was the driver of the said vehicle. Even the charge sheet produced on record shows said Bajirao Shinde as accused. His licence has been produced at Exh. 44, which shows that he was possessing valid driving licence. According to him, the Court ought to have come to the conclusion that the vehicle was driven by said Bajirao Shinde, who had valid driving licence. According to him, the Tribunal had committed an error in coming to the conclusion that the claimants or the owner of the offending vehicle have not proved as to who was the driver of the said vehicle and on that count, exonerating the insurance company. 7. Mr. Kulkarni, the learned counsel for the Insurance Company submitted that the initial burden to prove as to who was the driver of the vehicle, is on the claimants or the owner of the vehicle. Unless and until, they prove the said fact, the burden does not shift on the Insurance company to disprove it. According to him, the Court has rightly come to the conclusion and has exonerated the Insurance company. 8. Mr. Dhakane, the learned counsel for the appellant has further 5 F.A. NO. 2959/2009 - ( J ) contended that in fact there was a communication gap between the appellant and his Advocate, because of which he did not know the date and could not adduce evidence. He alternatively submits that the matter be remanded to the Tribunal with a view to afford an opportunity to him to adduce evidence. 9. Taking into account the totality of the facts and circumstances, it is manifest that the charge sheet was on record, which shows that the crime was registered and the same was being prosecuted against one Mr. Bajirao Shinde, as a driver of the offending vehicle. Even his licence is on record. It is not that there is no evidence on record. There is only technical defect that because the present appellant did not lead any evidence nor the claimants arrayed the said driver as a party, the said factum of Bajirao Shinde being the driver, could not have been strictly proved as per the provisions of the Indian Evidence Act. 10. In view of the fact that there are documents on record and also taking into account the fact that present appellant due to the communication gap between his lawyer and himself, was prevented from adducing his evidence so as to prove the fact of Bajirao Shinde being the driver, the opportunity deserves to be given to the appellant to prove the said fact. Interest of justice would be sub-served if an opportunity is given 6 F.A. NO. 2959/2009 - ( J ) to the appellant to adduce evidence and further giving direction to dispose of the proceedings before the Tribunal within the stipulated period. 11. In the result, I pass the following order : (A) The Appeal is partly allowed. (B) The impugned order is quashed and set aside. ( C ) The matter is remitted back to the Motor Accident Claims Tribunal, Beed for deciding it afresh. (D) The appellant shall lead his further evidence. (E) The Insurance Company and the claimants are also at liberty to adduce the evidence. (F) All the parties are served before this Court. As such, all the parties undertake to appear before the concerned Motor Accident Claims Tribunal, Beed in the subject matter on 27/09/2010. (G) The Tribunal shall decide the said proceedings within the period of six months thereafter. (H) The statutory amount deposited by the appellant be transmitted to the Motor Accident Claims Tribunal, Beed. (I) Record and proceedings be sent back forthwith. 7 F.A. NO. 2959/2009 - ( J ) 10. In view of disposal of First Appeal, Civil Application does not survives and as such disposed off. [ S.V. GANGAPURWALA, J. ] knp/ FA 2959.2009