1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD FIRST APPEAL NO. 675 OF 2009 Kachru Kashinath Zavare, R/o. Taharabad, Tq. Rahuri, Dist. Ahmednagar. ....Appellant. Versus Tukaram Mahipati Zavare, R/o. Taharabad, Tq. Rahuri, Dist. Ahmednagar & others ....Respondents. Shri. Dhananjay Deshpande, Advocate for the appellant. Shri. M.G. Kolse-Patil, Advocate for the respondent Nos. 1 to 5. Shri. D.V. Soman, Adovcate for respondent No. 7. CORAM : R.K. DESHPANDE, J. DATE : 30th September, 2009 ORAL ORDER : 1. This appeal is preferred by the owner of the vehicle i.e. Jeep No. MAE/7943, who was the original respondent No. 3 in Motor Accident Claim Petition No. 114/2000, decided by the Motor Accident Claims Tribunal at Ahmednagar on 29th November 2008. The claim petition filed by the respondent Nos. 1 to 5, who are the original plaintiffs, has been allowed and the appellant, owner of the vehicle i.e. jeep No. 2 MAE/7943, has been held liable to pay compensation of Rs.1,50,000/- including no fault liability of Rs.50,000/- alongwith interest at the rate of 7.5% per annum from the date of filing of the petition till its realization. The Tribunal has held by the impugned judgment and award that since the involvement of jeep No. MVC/9071 in the accident occurred on 21.6.1996 at 7.30 a.m., has not been established, it follows that there was negligence on the part of the driver of the jeep No. MAE/7943. This is how the Tribunal has fastened the liability upon the appellant, owner of the vehicle. 2. Shri. Deshpande, the learned counsel for the appellant, has challenged the findings of the Tribunal on the grounds that there is neither any pleading nor evidence on record to show that the driver of the jeep No. MAE/7943 was in any manner rash and negligent in driving the said vehicle, which has resulted to the accident in question. Relying upon the averements made in the claim petition, Shri. Deshpande pointed out that the case was regarding the negligence on the part of the driver of the jeep No. MVC/9071 and there was no averment about negligence on the part of the driver of the jeep No. MAE/7943. The evidence laid by the claimant was also in respect of the negligence on the part of the driver of the jeep No. MVC/9071. According to Shri. Deshpande, in view of the pleadings and evidence on record, the Tribunal committed an error in holding that the driver of the jeep No. MAE/7943 was rash and negligent in driving the vehicle. 3 3. Shri. Kolse-Patil, the learned counsel appearing for the respondent Nos. 1 to 5/ the original claimants, conceded to the position that in the claim petition the only averment was made in respect of the rash and negligent driving on the part of the driver of the jeep No. MVC/9071. He also conceded to the position that the evidence was led to substantiate the said plea. According to him, the Tribunal was right in holding that since the issue regarding involvement of Jeep No. MVC/9071 is concluded by the decision of this Court, delivered in First Appeal No. 535/2007, preferred by the claimants, decided on 21st of July 2008, the Tribunal was right in holding that it was an act of rash and negligent driving on the part of the driver of the Jeep No. MAE/7943. He, therefore, supported the findings recorded by the Tribunal and urged for maintaining the judgment and award passed by the Tribunal. 4. The Tribunal has recorded a finding about rash and negligent driving on the part of driver of the jeep No. MAE/7943 on the ground that an offence has been registered against him being numbered as 481/1996 and proceedings are initiated against the said driver. It further appears that the Tribunal has also come to this conclusion that the finding regarding non involvement of vehicle No. MVC/9071 in the accident occurred on 21st of June 1996, has been confirmed by this Court in its judgment dated 21st July 2008, rendered in First Appeal No. 535/2007, filed by the claimants on earlier occasion as the claim petition 4 was dismissed on the ground that the Tribunal proceeded on the wrong footings that accident had occurred on 21.9.1996, whereas, actually, the accident had occurred on 21.6.1996. He further urged that it is, on that basis, the Tribunal has recorded the finding that jeep No. MVC/9071 was not involved in the said accident. Shri. Kolse-Patil, the learned counsel, urged that the matter may be remanded back to the Tribunal in respect of the findings of the Tribunal about the accident which was occurred on 21.6.2009 and the involvement of vehicle No. MVC/9071. 5. It is not possible to accept the contention of the learned counsel Shri. Kolse-Patil to direct the Tribunal to permit the claimants to hold an inquiry in respect of the involvement of Jeep No. MVC/9071 in view of the specific findings recorded by this Court in First Appeal No. 535/2007 decided on 21st July 2008. Since, it is an undisputed position that the claimants had never alleged nor established an act of rash and negligent driving on the part of the driver of the vehicle i.e. Jeep No. MAE/7943, the order of the Tribunal holding the appellant liable for payment of compensation, cannot be sustained. Thus, there is no pleading nor any evidence to support the findings recorded by the Tribunal. Although, the Tribunal has referred to case registered against the driver of the vehicle No. MAE/7943 regarding rash and negligent driving of the vehicle, Shri. Deshpande, the learned counsel for the appellant, submitted that the said finding runs contrary to the pleading and evidence available on record, as has been held earlier that such finding recorded by the 5 Tribunal, cannot be sustained. The said contention has to be accepted. 6. As a result, the judgment and award passed by the Motor Accident Claims Tribunal on 29th of November 2008 in Motor Accident Claims Petition No. 114/2000, holding the appellant liable to pay the compensation of Rs.1,50,000/- with interest, cannot be sustained and the said is, therefore, set aside. 7. The learned counsel Shri. Kolse-Patil, appearing for the claimants, submits that the aforesaid holding would cause prejudice to the claimants as their claim against the driver of both the vehicles is rejected. He submits that the claimants have got additional evidence to establish the negligence on the part of the vehicle i.e. Jeep No. MVC/9071 and therefore, he should be permitted to place the same on record and substantiate the claim. However, in my opinion, unless the judgment and order passed by this Court on 21st of April 2008 in First Appeal No. 535/2007 is reviewed, such a request cannot be entertained. The learned counsel for the claimants submits that the decision of this Court in the present appeal should not come in the way of the claimants to prefer the review petition against the judgment and order dated 21st of July 2008 passed in First Appeal No. 535/2007. The said request is accepted and it is made clear that none of the observations made in this order shall come in the way of claimants to prefer review petition in accordance with law. 6 7. In the above terms, the appeal is allowed. However, there shall be no order as to costs. [ R.K. DESHPANDE, J. ] ssc/fa675.09