1 fa402-00j rpa IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURSIDICTION FIRST APPEAL NO. 402 OF 2000 Smt. Maharani Shiv Mangal Jaiswal & Anr. .. Appellants V/s. Shri Shivaji Fakira Gite & Anr. .. Respondents ..... Mr. A. M. Gokhale i/b. Mr. M. B. Kotak for the appellants. Mr. Jitendra Gaikwad a/w. Mr. Anilkumar Patil for the respondent No.1. Smt. Urmila K. Sanil for the respondent No.2. ..... CORAM : A.S.OKA, J. DATE : SEPTEMBER 29, 2011. ORAL JUDGMENT : Heard the learned counsel appearing for the appellants, the learned counsel appearing for the first respondent and the learned counsel appearing for the second respondent. 2. The challenge in this Appeal is to the Judgment and Award dated 1st June, 1999 passed by the learned Member of the Accident Claims Tribunal, Nashik, by which the claim petition filed by the applicants under Section 166 of the Motor Vehicle Act, 1988 (hereinafter referred to as “the said Act”) has been dismissed. The claim petition has been dismissed on the ground that the issue of negligence has not 2 fa402-00j been established. The Tribunal held that the insurer of the offending vehicle was not liable as the deceased was unauthorized passenger in the goods vehicle. While dismissing the claim petition, the Tribunal granted liberty to the insurer to recover the amount paid to the appellants on account of no fault liability from the insured. 3. Before adverting to the submissions made by the learned counsel appearing for the appellants, it must be noted here that after the submissions were fully heard, considering the nature of the evidence on record, this Court suggested to the advocate for the appellants that if the appellants make a statement that they will not claim any interest on the compensation amount for the period after the date of the impugned Judgment, only by way of indulgence, this Court may consider of remanding the matter to the Tribunal to enable the appellants to adduce additional evidence on all the aspects of the case. However, notwithstanding the said suggestion made by this Court, the counsel for the appellants stated that the Appeal be decided on merit. 4. The case made out by the appellants in the claim petition is that the son of the appellants by the name Jagdishkumar Jaiswal was carrying on business of vegetable 3 fa402-00j vendor at Bomaby and for that purpose he was proceeding towards Igatpuri. He was travelling by a tempo. The tempo was being driven in excessive and high speed which gave a dash to the truck standing on the kaccha part of the road. As a result of the accident, the deceased died on the spot. The claim petition was filed against the owner of the tempo and the insurer of the tempo (first and second respondents). The claim was not contested by the first respondent. However, a written statement was filed by the second respondent insurer. It was contended that the vehicle of the first respondent was a mini truck which was a goods vehicle and the deceased was unauthorizedly travelling in the goods vehicle. It was contended that the accident occurred due to the negligence of the driver of the stationary truck as he had parked the truck on the road without there being any tail lamp, reflectors or indicators. The second appellant i.e. the brother of the deceased stepped into the witness box. No other oral evidence was adduced by the appellants. There were two documents placed on record which were exhibited. The first is the First Information Report lodged by the police and the second is duplicate copy of the insurance policy. 5. The Tribunal held that the applicant has adduced no evidence to prove the alleged negligence on the part of the 4 fa402-00j driver of the Tempo and even the spot panchnama was not produced on record. In the absence of panchnama, the learned Member of the Tribunal observed that there was no evidence regarding rash driving on the part of the Tempo driver. The Tribunal held that there was breach of terms and conditions of the policy as the deceased was travelling in the goods Tempo as an unauthorized passenger. 6. The submission of the learned counsel appearing for the appellants is that finding of negligence ought to have been recorded against the driver of the Tempo as the claim petition was not contested by the owner of the alleged offending Tempo. His second submission is that the copy of the FIR which is on the record itself demonstrates that there were no other person available near the spot and there could not have been any oral evidence adduced by the appellants to prove the negligence. His submission is that as there was no challenge by the owner to the averments made in the claim application regarding negligence, on the basis of the statements made in the FIR, a finding regarding negligence ought to have been recorded against the first respondent. He submitted that the policy of the insurance placed on record shows that additional premium was paid for the passengers in the goods vehicle and therefore, the 5 fa402-00j liability of the deceased was covered. He also placed reliance on the decision in the case of National Insurance Company Limited V/s. Dayanand Margappa Bedde & Others [2011 ACJ 1499]. The learned counsel appearing for the respondents supported the impugned Judgment and Award. 7. Perusal of the record shows that an application was made by the second respondent insurer at Exhibit-30 by pointing out that the first respondent had not contested the matter and therefore, a permission be granted to defend the claim petition by adducing evidence on all points and by cross-examining the witnesses of the appellants on all points. On 1st June, 1999, the said application was allowed and therefore the contention of the appellant that there was no contest to the allegations of negligence in the claim petition cannot be accepted. 8. As pointed out earlier, except the examination of the brother of the deceased, no other witness was examined. Obviously, the brother of the deceased had no knowledge about the accident. The only document placed on record by the applicants is a copy of the FIR at Exhibit-35. The FIR itself records that a spot panchnama was drawn. The FIR was lodged by a police constable who had no personal knowledge 6 fa402-00j of the accident. The case made out by the appellants was that a truck was parked by the said of the road and the driver of the temp who was driving the tempo in a rash and negligent manner gave a dash to the stationary truck. Even in absence of availability of any eye witness, the production of panchanama was necessary for the purpose of deciding the issue of negligence. The panchanama was very much available as is reflected from the FIR and in fact the failure to produce panchanama was sufficient ground to draw an adverse inference against the appellants. The submission of the learned counsel appearing for the appellants is that strict rules of evidence are not applicable to the Tribunal. The submission is absolutely correct. However, there must be some evidence on record for Tribunal to come to the conclusion that the negligence has been established. It is true that strict rules of evidence are not applicable to the Tribunal. However, there has to be some evidence on record for the purposes of recording a finding of negligence. If a party to the claim petition is in possession of a document which could have thrown light on the merits of the controversy and the said documents is withheld, the Tribunal is entitled to draw an adverse inference against the party concerned. Therefore, it is a case where there is a complete absence of evidence and 7 fa402-00j therefore, the Tribunal is right in holding that applicants have failed to produce any evidence to establish the negligence on the part of the driver of the Tempo. The claim petition was filed under Section 166 of the said Act which is a remedy under the law of Torts. Therefore, without establishing the negligence on the part of the driver, the appellants will not be entitled for compensation in a claim under Section 166 of the said Act. 9. The last part of the impugned Award reads thus: “ Opponent-2 The Oriental Insurance Co. Ltd. is at liberty to recover the amount of Rs.25,000/- with interest @ 12% p.a. from the date of deposit of the said amount by Opponent-2 from Opponent -1 Shri Shivaji Fakira Gite, i.e. the owner of the Vehicle. Award be drawn accordingly.” 10. There was an Award made by the Tribunal under Section 140 of the said Act. The said Award is subject to an Appeal under Section 173 of the said Act. The aforesaid order is an order in the nature restitution which could have been passed by the Tribunal only after the Award under Section 140 of the said Act was set aside. Therefore, this is a fit case where a power under Rule 33 of Order XLI of the Code of Civil Procedure, 1908 will have to be invoked for setting aside that part of the impugned Award. 8 fa402-00j 11. As the first issue of negligence has not been established by the appellants, it is not necessary to deal with the other issue regarding the liability of the second respondent. 12. Hence, I pass the following order: :: O R D E R :: i. The impugned Judgment and Award dated 1st June, 1999 dismissing the claim petition filed by the appellants is confirmed. ii. The permission granted to the second respondent to recover no fault liability amount from the first respondent is revoked. iii. The Appeal is accordingly disposed of. (A.S.OKA, J.)