:1: IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NOS. 115 AND 117 OF 2010 FIRST APPEAL NO. 115 OF 2010 Shri Jayant K. Naroji, son of Shri Kashinath Naroji, major, married, service, driver & owner of the vehicle No. Ga-06-A-3152, r/o MPT/M/213/1/4, MPT Colony, Headland Sada, Vasco-da-Gama,Goa. … Appellant V e r s u s 1. Smt. Anisha Ankush Naik, wife of late Ankush K. Naik, major, aged about 46 years, housewife, 2(a) Miss Radhika A. Naik, d/o late Ankush K. Naik, major, aged about 18 years, student. 2(b) Miss Ruchita A. Naik, d/o late Ankush K. Naik, minor, aged about 13 years, student. 2(c) Mast. Krishna @ Bhupendra A. Naik s/o late Ankush K. Naik, minor, aged about 11 years, student, through their natural Guardian their mother, Smt. Anisha Ankush Naik, All r/o near Destero Chapel, MPT Colony, Vasco da Gama,Goa. 3. The New India Assurance Co. Ltd., 2nd Floor, Jeewan Deep Building, Parliament Street, New Delhi 110 001. … Respondents :2: Mr. Shambhu Kakodkar, Advocate for the appellant. Mr. T. George John, Advocate for respondent nos. 1, 2(a), 2(b) and 2(c). Mr. A. Kakodkar, Advocate for respondent no.3. WITH FIRST APPEAL NO. 117 OF 2010 Shri Jayant K. Naroji, son of Shri Kashinath Naroji, major, married, service, driver & owner of the vehicle No. Ga-06-A-3152, r/o MPT/M/213/1/4, MPT Colony, Headland Sada, Vasco-da-Gama,Goa. … Appellant V e r s u s 1. Smt. Shubhangi Santosh Naik, w/o late Santosh Shiva Naik, major, aged about 42 years, housewife 2(a) Miss Savani S. Naik d/o late Santosh S.Naik, minor, aged 14 years, student, 2(b) Mast. Shivdatt S.Naik, s/o late Santosh S. Naik, minor, aged 12 years, student both through their natural guardian their mother Smt. Shubhangi S. Naik All r/o “B” type Quarter, No.202/11/2, MPT Colony, Headland Sada, Mormugao. 3. The New India Assurance Co. Ltd., 2nd Floor, Jeewan Deep Building, Parliament Street, New Delhi 110 001. … Respondents :3: Mr. Shambhu Kakodkar, Advocate for the appellant. Mr. A. Kakodkar, Advocate for respondent no.3. CORAM : F. M. REIS, J DATE : 14 th OCTOBER, 2011 . ORAL JUDGMENT Heard Shri S. S. Kakodkar, learned Counsel appearing for the appellant, Shri T. George John, learned Counsel appearing for respondent nos. 1, 2(a), 2(b) and 2(c) and Shri A. Kakodkar, learned Counsel appearing for respondent no. 3. 2. Both the appeals are taken together for final hearing as according to the learned Counsel the point involved in both the appeals is the same and both the claim petitions have been filed on account of the same accident. The learned Counsel for both the parties also pointed out that the notice in the above appeals was given to the respondents for final disposal of the appeals at the stage of admission. 3. The above appeals challenge the judgments dated 29.08.2008 passed by the learned Presiding Officer, Motor Accident Claims Tribunal, Margao in Claim Petition Nos. :4: 231/2006 and 173/2006. 4. Both the Claim Petitions have been filed to claim compensation on account of death of the occupants of the vehicle in a motor accident which occurred on 31.01.2006 when the deceased Santosh Naik and Ankush Naik were travelling from Vasco to Margao in a Alto car bearing registration No. GA-06-E-3152 driven by the appellant. The respondent no.3 was the insurance company of the concerned vehicle. It was case of the respondent nos.1 and 2/claimants that the appellant drove the vehicle in a rash and negligent manner on account of which the vehicle went off the road and turned turtle and fell down in the bushes. It is further contended that on account of the said accident, said Ankush Naik and Santosh Naik got seriously injured and succumbed to the injuries at the G.M.C. Bambolim. Accordingly, the claim petitions were filed praying inter-alia for a compensation of Rs.16 lakhs in Claim Petition No. 231/2006 and Rs.13 lakhs in Claim Petition No. 173/2006. The appellant and respondent no.3 filed their written statements disputing the claim of the respondent nos.1 and 2 herein/claimants. It is the contention of the appellant that the car driven by him is insured with the respondent no.3 and that the insurance policy covers all the :5: aspects and, therefore, the insurance company/the respondent no.3 is liable to make the payment of any compensation payable to the respondent nos.1 and 2. The respondent no.3 also filed their written statement claiming that the accident did not occur on account of the rash and negligent driving of the appellant but it was pure accident. It was further their case that the deceased was travelling as a gratuitous passenger and hence the insurance company is not liable to pay the compensation to the respondent nos.1 and 2/claimants. 5. By the impugned judgment dated 29.08.2008, the learned Tribunal partly allowed the claim petitions filed by the respondent nos.1 and 2 and awarded a compensation of Rs.3,99,420/- with interest at the rate of 9% per annum in Claim Petition No. 231/2006 and a sum of Rs.8,99,818/- with interest at the rate of 9% per annum from the date of filing of the claim petition in claim petition No. 173/2006. Both the claim petitions were dismissed against respondent no.3 herein. Being aggrieved by the said judgments, the appellant/respondent no.1 in the Claim Petitions has preferred the present appeals. :6: 6. Shri S. S. Kakodkar, learned Counsel appearing for the appellant has assailed the impugned judgments essentially on the ground that the learned Tribunal has misread the insurance policy at Exhibit 51 in Claim Petition No. 173/2006 and at Exhibit 48 in Claim Petition No. 231/2006 inasmuch as the annexure to the said policy has not been considered by the learned Tribunal whilst coming to the conclusion that the respondent no.3 is not liable to indemnify the appellant in the payment of the compensation awarded. The learned Counsel has further pointed out that the learned Tribunal has only considered the first part of the insurance policy whereas the annexure to such policy which conclusively established that the respondent no.3 is liable to indemnify the appellant. The learned Counsel as such pointed out that in case such annexure to the policy specially Section 2 ( liability to the third party ) was considered, the learned Judge would have directed that the amount is to be paid by the respondent no.3 as well. The learned Counsel as such submitted that the impugned judgments deserve to be quashed and set aside and the matters be remanded to the Tribunal to decide the petitions afresh with regard to the breach of the terms of insurance policy. Shri S. S. Kakodkar, learned Counsel appearing for the appellant further pointed :7: out that even the amount of compensation awarded by the Tribunal is not in accordance with the well settled principles laid down by the Apex Court in Sarla Verma and others V/s Delhi Transport Corporation and another reported in (2009) 6 SCC 121. 7. On the other hand, Shri A. Kakodkar, learned Counsel appearing for respondent no.3 did not dispute the contention of the learned Counsel appearing for the appellant to the effect that such annexure had not been considered by the learned Tribunal whilst disposing of the claim petitions filed by the respondent no.1/claimant. But however, the learned Counsel has pointed out that IMT-16 annexed to the said policy clearly provides that such payment can be effected only in cases when additional amount is paid by the owner of the vehicle. The learned Counsel further pointed out that this aspect will also have to be gone into by the learned Tribunal while deciding the claim petitions afresh as prayed for by the appellant. The learned Counsel further pointed out that a specific issue to that effect would have to be framed by this Court whilst remanding the matters to the learned Tribunal. The learned Counsel as such submitted that considering the facts and circumstances of the case, the respondent no.3 is :8: not liable to pay the amount to the respondent no.1/claimant. 8. Shri T. John George, learned Counsel appearing for respondent no. 1, 2(a), 2(b) and 2(c) in First Appeal No. 115 of 2010 does not dispute that the principle laid down in the judgment of the Apex Court relied upon by the leaned Counsel appearing for the appellant has not been considered by the learned Tribunal whilst passing the impugned judgments. 9. Having heard the learned Counsel for the parties and on perusal of records, the following point for determination arises in the present appeals : POINT FOR DETERMINATION Whether the Tribunal was justified to dismiss the claim petitions against the respondent no.3 ? 10. On perusal of the records and considering that there is no dispute raised by the learned Counsel appearing for the parties to the effect that the learned Tribunal has failed to consider the annexure to the policy as contended by the learned Counsel appearing for the appellant, I find that non consideration of the said annexure itself vitiate the impugned :9: judgments. Considering the request of the learned Counsel, I find it appropriate that without going into the correctness of the impugned judgment on merits with regard to the payment of compensation to respondent no.1/claimant, it would be appropriate and in the interest of justice that the impugned judgments be quashed and set aside and the matters be remanded to the Tribunal to decide both the claim petitions afresh after hearing both the parties in accordance with law. The judgment of the Apex Court sought to be relied upon by the learned Counsel appearing for the appellant would also have to be considered by the learned Judge after hearing the parties to the claim petitions and consider whether the said judgment is applicable to the facts and circumstances of the case. 11. Dealing with the contention of Shri A. Kakodkar, learned Counsel appearing for respondent no.3, it is not possible to frame an issue as claimed by respondent no.3 as on perusal of the written statement filed by respondent no.3, I find that there is no foundation to that effect in the written statement. Considering the contention of Shri Kakodkar, that such facts came to the knowledge of the respondent no.3 only during the course of proceedings before the learned Tribunal, :10: it would be appropriate that the respondent no.3 be given an opportunity to file an application for amendment of the written statement to incorporate such contentions as available to them in law and any such application would have to be dealt with after hearing the parties to the claim petitions in accordance with law. 12. In view of the above, I pass the following order : O R D E R (i) Both the appeals are partly allowed. (ii) The impugned judgments in both the above appeals dated 29.08.2008 are quashed and set aside. The claim petition nos. 173/2006 and 231/2006 are restored to the files of the learned Presiding Officer, Motor Accident Claims Tribunal, South Goa, Margao. (iii) The Tribunal is directed to decide the claim petitions afresh in the light of the observations made herein above after hearing both the parties in accordance with law. (iv) The parties are directed to appear before the Tribunal on 21.11.2011 at 10.00 a.m. :11: (v) Both the appeals stand disposed of accordingly with no order as to costs. F. M. REIS, J at*