{1} fa198110.odt IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD FIRST APPEAL ST.NO.19118 OF 2008 National Insurance Company Ltd., through its Divisional Office, Divisional Manager, Hajari Chambers, Station Road, Aurangabad. Appellant Versus 1 Smt.Pramilabai Devidas Mistry age: 42 years, Occ: Household; 2 Rajendra Devidas Mistry, age: 27 years, Occ: Labour; 3 Jaideo Devidas Mistry, age: 20 years, Occ: Education; 4 Namdeo Devidas Mistry, age: 18 years, Occ: Education; All R/o Shanimandal, Tq. & District Nandurbar. 5 Yogendra Vasant Gite, age: adult, Occ: Driver & owner of Pick Up Van, R/o Shanimandal, Tq. & Dist. Nandurbar. Respondents Mr.S.V.Kulkarni, advocate for appellant. Mr.R.R.Patil, advocate for respondents no.1, 3, & 4. Respondents No.2 & 5 served. WITH FIRST APPEAL NO.1981 OF 2010 {2} fa198110.odt National Insurance Company Ltd., through its Divisional Office, Divisional Manager, Hajari Chambers, Station Road, Aurangabad. Appellant Versus 1 Rajendra s/o Waman Sonar, died, through L.Rs.: 1A) Smt.Rekhabai w/o Rajendra Sonar, age: 40 years, Occ: Household; R/o Shanimandal, Tq. & Dist. Nandurbar. 1B) Sagar Rajendra Sonar, age: 13 years, Occ: Education, R/o as above. 1C) Akava Rajendra Sonar, age: 11 years, Occ: Education, R/o as above. 1D) Pravin Rajendra Sonar, age: 9 years, Occ: Education, R/o as above. (Respondent Nos.1-B to 1-D are minors under guardianship of Respondent No.1A). 1E) Sumanbai w/o Waman Sonar, age: 70 years, Occ: Household, R/o Shanimandal, Tq. & Dist.Nandurbar. 2 Yogendra Vasant Gite, age: adult, Occ: Driver & owner of Pick Up Van, R/o Shanimandal, Tq. & Dist. Nandurbar. Respondents {3} fa198110.odt Mr.S.V.Kulkarni, advocate for appellant. Mr.R.R.Patil, advocate for respondents no.1, 3, & 4. Respondents are served. CORAM : R.M.BORDE, J. DATE : 22 nd June, 2011 ORAL JUDGMENT: 1 Heard learned Counsel for respective parties. Appeals are admitted and taken up forthwith and heard finally by consent of learned Counsel for respective parties. 2 These are appeals presented by appellant-Insurance Company raising exception to the order dated 16.02.2008, passed below Exhibit-5 in Motor Accident Claims Petition No.297/2006 and order dated 04.03.2008, passed below Exhibit-5 in Motor Accident Claims Petition No.325/2006, by Motor Accident Claims Tribunal, Dhule. 3 One Devidas Bhika Mistri as well as Rajendra s/o Waman Sonar were travelling in a Mahindra Pick Up Van bearing Registration No.MH-39-C-5322. According to the claimants, deceased were travelling in the vehicle along with goods. Original opponent no.1 was driving the vehicle. He is also owner of the vehicle. At the relevant time, original opponent no.2 drove the vehicle in rash and negligent manner which resulted in causing of the accident. 4 Claim Petition presented by Pramila w/o Devidas Mistri is in respect of accidental death of Devidas Mistri, whereas, another claim petition was presented by injured Rajendra Sonar himself, which is now {4} fa198110.odt being prosecuted by his legal representatives, after his death. Claim Petition presented by Rajendra is for the purposes of claiming compensation on account of having sustained injuries as a result of occurrence of accident. 5 In both the Claim Petitions, separate applications were presented by the claimants at Exhibit-5 respectively, claiming compensation towards no fault liability under Section 140 of the Motor Vehicles Act. 6 The Member, Motor Accident Claims Tribunal, Dhule, after considering rival contentions, was pleased to allow the applications and directed payment of compensation amounting to Rs.50,000/- and Rs. 25,000/-, respectively along with interest. 7 It is the contention of the insurer – appellant that deceased were travelling in a goods vehicle and as such, the Insurance Company is not liable to reimburse the claim raised by respective claimants. It is the contention of the appellant that the Tribunal has not considered the documents placed on record and has not applied mind while holding the insurance company liable in respect of payment of no fault liability amount to the claimants. Shri Kulkarni, learned Counsel for the appellant, has invited my attention to the First Information Report filed by Manoj Digambar Pingle on 20.02.2006 in respect of occurrence of accident. It is stated in the First Information Report that the informant was serving as cleaner and was travelling in the vehicle Mahindra Pick Up Jeep bearing Registration No.MH-39-C-5322 on the relevant date. It is clearly recorded in the First Information Report that the goods {5} fa198110.odt belonging to Gorakh Devidas were loaded in the Pick Up Van and some of the villagers, including Rajendra and Devidas, were travelling in the Van as passengers. They were sitting on the backside of the Pick Up Van. Considering the recitals contained in the First Information Report, it is contended that deceased were travelling in a goods vehicle and the contentions raised by the claimants in the applications that deceased were travelling along with goods, do not appear to be proper. It is also contended by learned Counsel for the appellant that the panchanama placed on record in respect of occurrence of accident also records similar contentions. It is, thus, contended that the Tribunal, without considering specific contentions raised by appellant and without considering documentary evidence placed on record by the applicant, proceeded to hold the Insurance Company liable for payment of amount of ‘no fault liability’. The Tribunal has not applied mind to the record of the case and proceeded to pass the impugned order. It is also informed that the main Claim Petitions, presented under Section 166 of the Motor Vehicles Act, are pending before the Tribunal. 8 In this view of the matter, it would be appropriate to remit the instant applications for consideration of the Tribunal along with main Claim Petitions presented under Section 166 of the Motor Vehicles Act. 9 Thus, both the appeals are allowed. The order dated 16.02.2008, passed below Exhibit-5 in Motor Accident Claims Petition No.297/2006 and order dated 04.03.2008, passed below Exhibit-5 in Motor Accident Claims Petition No.325/2006, by Motor Accident Claims Tribunal, Dhule, are quashed and set aside. The Tribunal shall deal with {6} fa198110.odt the applications at Exhibit-5 and decide the same along with Claim Petitions presented by respective claimants under Section 166 of the Motor Vehicles Act. It is informed that the Insurance Company has deposited an amount of Rs.50,000/- and Rs.25,000/-, respectively in both the appeals. The Registrar (Judicial) is directed to remit the amount along with interest accrued thereon to the Motor Accident Claims Tribunal, Dhule, in respective appeals. The Motor Accident Claims Tribunal, Dhule shall invest the amount in Fixed Deposit Receipts, in any Nationalised Bank, until disposal of the Claim Petitions presented by respective claimants, under Section 166 of the Motor Vehicles Act. The Tribunal shall decide the issue involved in the instant applications while deciding Claim Petitions presented by respective claimants under Section 166 of the Motor Vehicles Act. In the facts and circumstances of these cases, there shall be no order as to costs. Pending Civil Applications, if any, do not survive and stand disposed of. R.M.BORDE adb/fa198110 JUDGE