1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD F.A. NO. 3185/2009 _________________________________________________________ Office Notes, Office | Memoranda of Coram, | Court's or Judge's orders appearances, Court's | orders or directions | and Registrar's orders | _________________________________________________________ Shri Shrikant Kulkarni, Advocate for appellants. Shri Sachin Deshmukh, Advocate for respondent No.1. Shri S.S. Chapalgaonkar, Advocate for respondent no.2. ............... CORAM : K.U. CHANDIWAL, J Date : 3rd March, 2010. 1 Heard the appeal finally at admission stage. 2 The claimants being aggrieved by dismissal of M.A.C.P. No. 227/2004 by learned Chairman / Member, M.A.C.T., Latur, preferred the appeal. 3 The factual details indicated, display that on the fateful day, three persons were moving on motor cycle. Kalyanrao Kupkar was one of them while others were Suresh Handibag and Shivraj Gadhave. In an unfortunate accident 2 referred above, Kalyanrao and Shivraj lost their precious lives. Suresh was seriously injured. 4 The learned judge while evaluating evidence in claim petition by order dated 13/12/2006 recorded that involvement of the offending jeep No. MH/24-C/0692 is not proved. The learned judge did not believe eye witness P.W. 2 Subhash Mohite and assigned reasons for the same. 5 The learned judge also discussed the spot panchanama of the vehicle in para 20 and 21 of the order, observing that the circumstances indicate, inference can be drawn about negligence on the part of motor cyclist Kupkar who was in excessive speed and took a wrong turn while proceeding from east to west, took a turn to right side to proceed to Tiranga Dhaba. 6 During the course of submissions, Mr. Kukarni, counsel for the appellant / claimant pointed that claim petition no. 112/2005 of Suresh Handibag is allowed on 13/01/2009 while Claim petition no. 83/2004 of the claimants concerning death of Shivraj Gadhave is allowed on 18/12/2008. These two claim 3 petitions are from the same accident, include same set of facts. As the two claim petitions are already allowed, though it is not so referred, reflected in the present appeal, as the dismissal of the judgment in the present appeal is dated 13/12/2006 and the above judgments are subsequent. The facts remains, two contrary views are taken. One in the present case of non involvement of the vehicle and jeep driver while in the other two cases, learned judge observed that jeep was involved in the accident, settled the responsibility to meet claim to jeep driver and insurance Company. It is a matter of record that as on today there is no appeal from Insurance Company in the claim petition No.112/2005 or M.A.C.P. No. 83/2004. The learned judge also found that injured Suresh was not examined. If the application is moved, the evidence of said Suresh should be allowed to be lead. 7 This conflict in three judgments, calls for interference. The order under challenge is set aside. a) M.A.C.P. 227/2004 is remitted to the learned judge Ex-officio officer, M.A.C.T., Latur 4 to decide it on its own merit in the backdrop stated herein before. c) Age of the matter warrants its early disposal within a year on receiving the papers. d) No costs. e) Record and proceedings be sent back immediately. Appeal allowed as above. (K.U. CHANDIWAL, J) tsk/fa3185.09