1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO.1170 OF 2009 (With C.A.No.5455/2009) Gulshan Ainshiram Dandwani, Age 37 years,Occu: Business, R/o. Bhujbal Colony, Bungalow No.1, New Mukundnagar, Ahmednagar, At present: Ganga Darshan -2, Bungalow No.1-B, behind Kripal Ashram, Miskin Nagar,Ahmednagar, Dist.Ahmednagar. ...APPELLANT (ORIG.CLAIMANT) VERSUS 1. Sumit Murlidhar Batule, Age:Adult, Occu: r/o. Building No.1, Shillavihar Pipeline Road,Ahmednagar. 2. United India Insurance Com.Ltd., Kisan Kranti Building, Market Yard, Ahmednagar. ...RESPONDENTS (Orig.Opponents) ... Mr.S.P.Brahme, Adv., for the petitioner. Mr. S.S.Jadhavar, Adv., for Respondent no.1. Mr.A.B.Gatne, Adv., for respondent no.2. ... CORAM: K.U. CHANDIWAL, J. DATE :3-3-2010 *** 2 PER COURT : 1. Heard. By consent of the parties, the matter is finally heard at admission stage. 2. The claimant (appellant) and his father was moving on Nagar-Aurangabad Road on a motor cycle. His father was pillion rider. A tanker was coming from behind of the motor cycle while, at the same time, there was a tempo ahead of the claimant. All of a sudden, brakes were applied by the tempo driver. In the exercise, it is alleged, the claimant had dashed against the tempo and, simultaneously, the Tanker, coming from backside, dashed the claimant, causing injuries to him and his father. The claimant and his father filed claim petitions being Petition Nos.715/2004 and 716/2004. 3. The learned Chairman, Motor Accident Claims Tribunal, Ahmednagar, on available record, by order dt.13th Feb.,2009, dismissed the petition (No.715/2004). Hence, the very order is questioned by the claimant in the first appeal. 4. An application (No.5455/2009) is moved by the claimant/appellant to allow him to produce photographs by way of additional evidence. It is a matter of record, these photographs were not tendered before the learned Judge while deciding 3 the claim petition. 5. The crucial points in the matter are referred by the learned Judge in paragraph No.9 of the order. The learned Judge gave reference to Exh.22, FIR ( Exh.23), spot Panchnama, and observed that since the FIR was lodged at the behest of the claimant, and though there is a prosecution of the tanker owner, however, the Tribunal has jurisdiction to independently draw inference about the accident. The learned Judge observed that since there was report (Exh.22) filed by the claimant, Police believed in it and registered the offense. These observations of the learned Judge, naturally, are uncalled for. It was the primary satisfaction of the investigating team, truck driver could have been prosecuted in terms of Exh.22, giving rise to Crime No.149/2004. 6. The other eventuality referred in the same paragraph is that, the claimant has applied brakes and he dashed against the stationary tempo, fell down or that, there was delay on the part of the claimant in opening the shop on particular date. The observation of the learned Judge is not in correct context to the record referred above. It needs to be addressed in the legal set up and should not have been illusory as is reflected. The evidence of the claimant, as 4 a whole, will have to be read; it need not be corrected and dissected with a particular line or sentence to draw inference. Such exercise, as reflected in paragraph no.9 of the order under challenge, indicate a mayhem in appreciation of evidence, which certainly warrants interference. 7. The observation in the subsequent part of the judgment in paragraph no.9 is contrary to the record and evidence at Exh.21 of the claimant. 8. It is curious, prior to the coming to the conclusion about non involvement of the tanker, in paragraph no.6, the learned Judge reached to the calculations and conclusions about entitlement of the claimant to an amount of Rs. 2,56,000/- as chart is given in paragraph no.6. Without adverting to what the learned Judge has done in paragraph no.6, the fact remains, the observation of the learned Judge in paragraph no. 9 being not acceptable, rather contrary to the record, as indicated above, needs to be set aside. 9. The other exercise which the claimant seeks, production of photographs, I do not wish to comment on the genuineness of the photographs or its proof as it is left to the claimant to get it independently proved. However, the claimant 5 is entitled to produce such photographs for appreciation by the learned Judge/ Chairman, Motor Accident Claims Tribunal. 10. In the situation, following order: (a) The order of dismissal of M.A.C.P.No. 715/2004, dt.13th Feb.,2009, is set aside. The learned Judge shall hear the petition afresh with another petition being Petition No.716/2004. The learned Judge shall allow the claimant to lead additional evidence, subject to cross examination by the respondents. (b) The learned Judge will decide the petition on its own merits. No costs. Civil Application disposed of. [K.U. CHANDIWAL, J.] agp/1170-09fa 6