(1) FA. 57.1998 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO. 57 OF 1998 New India Assurance Company Ltd., having Regd. Office and Head Office at New India Assurance Building, 87, M.G. Marg, Fort, Mumbai 1 and having Divisional Office at Dahiwala Bunglow, Peth Jalgaon and at Aurangabad .. Appellant VERSUS 1] Pravin Pannalal Birla Age : 43 yrs., Occu.: Agri and Milk business R/o Pardeshipura, Dayal Building, Nandurbar Dist. Dhule 2] Satish Ganpati Samdani, 47 years, Occu.: Service, R/o L-8/64, Vrindavan Colony, Tilaknagar, Chembur, Mumbai .. Respondents WITH CIVIL APPLICATION NO. 5497 OF 1998 IN FIRST APPEAL NO. 57 OF 1998 New India Assurance Co. Ltd. .. Applicant VERSUS Pravin Pannalal Birla and anr. .. Respondents Mr. S.L. Kulkarni, Advocate for the appellant-applicant Smt. Netrali Jain (Gangwal), Advocate h/f. Mr. Anil Kasliwal, Advocate for the respondent no.1 None present for respondent no.2 though served (2) FA. 57.1998 CORAM : A.V. NIRGUDE, J. DATED : 10TH AUGUST, 2009 ORAL ORDER:- 1] This appeal is filed against the judgment and award passed by the learned Member, Motor Accident Claims Tribunal, Jalgaon dated 20.8.1997 in M.A.C.P. no. 115 of 1992. The appellant is the Insurance Company which had insurance of the vehicle that met with the accident. The respondent no.1, was the original claimant. Respondent no.2 was the owner of the vehicle. Both the respondents along with the first respondent’s sister were traveling in the vehicle on 3rd January, 1992. The driver of the vehicle was one Balkrishna. It is said that the driver lost control over the vehicle and the car went off the road and collided on a tree. In the accident, the driver died instantaneously, whereas respondent no.1 and others sustained injuries. Respondent no.1 made claim against the owner of the vehicle-respondent no.2 as well as the appellant Insurance Company. The Insurance Company filed written statement and took up three statutory defences:- . (i) The vehicle in question at the relevant time was a tourist taxi i.e. transport vehicle and that it was at the relevant time not hired by the driver for his own use. (ii) The driver did not have valid and effective driving license as the same (3) FA. 57.1998 did not have specific endorsement to drive a tourist taxi. (iii) Since respondent no.2 was travelling in the vehicle free of charge as a gratitous passenger, there was breach of specific condition of the policy/terms and conditions of permit. These objections amounted to statutory defences as provided in Section 149 of the Motor Vehicle Act, 1988. . In complete disregard to the defences raised by the appellant, the learned Member of the Motor Accident Claims Tribunal framed following issues:- ISSUES (1) Whether petitioner proves that on 3.1.1992 at about 3:30 pm. on National Highway Savkheda Hol Shivar road, the respondent-driver by driving his vehicle no.MH-03/5155 rashly and negligently caused the accident, and in said accident, he sustained personal injuries? (2) To what amount, if any, the petitioner is entitled to compensation? (3) Whether petitioner proves that all respondents are liable to pay him compensation as their joint and several liability? (4) What award? Sd/- D/- 24.5.1996 (S.K. Raut), M.A.C. Tribunal, Jalgaon" . The learned Member thus failed to frame two necessary issues namely (i) whether the vehicle at the relevant time was a tourist taxi, a transport vehicle? (ii) whether the driver had valid and effective driving license at the time of the (4) FA. 57.1998 accident? (iii) whether the respondent was travelling in the vehicle as gratituous passenger? and if the answer to this is in affirmative, whether this amounted to breach of conditions of policy/terms and conditions of permit? . In absence of these three necessary issues, the learned Member could not decide these objections. In paragraph no.8 the learned Member made fleeting reference to one of the objections that the "respondent no.1 was a gratituous passenger and could not claim compensation" but did not discuss it elaborately. He was unable to discuss this issue also because there was no issue framed in this regard. 2] The learned Advocate appearing for the appellant Insurance Company therefore sought setting aside of the impugned judgment and award and remand the matter back to the Tribunal. As against this, the learned Advocate appearing for the respondent no.1, referred to judgment of this Court dated 10.12.2004 passed in the cognate case. It was First Appeal arising from the cognate judgment delivered in favour of another victim of the accident. I perused the judgment and found that the arguments which the learned Advocate for the appellant Insurance Company advanced today were made before my learned brother. But even then, my learned brother after hearing the arguments of both the sides (5) FA. 57.1998 ultimately recorded his finding that "the driver was having authorised driving license at the time of the accident" and so, the arguments were discarded. The learned Advocate for the respondent no.1 obviously wanted me to follow the suit. I am however, not inclined to do so. The issues that were raised and identified above, were not framed and so, the parties were deprived of leading evidence on these issues. In the absence of adequate and necessary evidence on record, in my view, it would not be proper for the appellate Court to discuss these issues and give findings on them. 3] I am, therefore, inclined to allow the appeal and set aside the impugned judgment and order and remand the case back to the Tribunal for deciding the issues mentioned above. 4] Hence, order :- . The First Appeal is allowed. The impugned judgment and award are set aside. The case is remanded back to the lower Court. The learned Member of the Tribunal shall frame issues in view of the statutory defences raised by the appellant Insurance Company only. He shall allow the parties to lead the evidence on the issues and then decide the case. The lower Court shall dispose of the claim petition within six months from the date of receipt of this order. The amount deposited by the (6) FA. 57.1998 appellant Insurance Company in this Court shall be transmitted to the lower Court. 5] In view of the order passed in First Appeal no. 57 of 1998, Civil Application no. 5497 of 1998 seeking stay, does not survive and the same stands dismissed. Interim relief to stand vacated. Sd/- (A.V. NIRGUDE, J.) arp