: 1 : SD IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION FIRST APPEAL (ST.) NO.17298 OF 2007 FIRST APPEAL (ST.) NO.17298 OF 2007 FIRST APPEAL (ST.) NO.17298 OF 2007 Vinod Jaganath Patil ...Appellant V/s. Bhimrao Ananda Kharmate & Anr. ...Respondents Ms.L.H. Belindage, Advocate, for the Appellant. Mr.T.S. Ingale, Advocate, for Respondent No.1. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. DATE : 28TH MARCH, 2008. DATE : 28TH MARCH, 2008. DATE : 28TH MARCH, 2008. ORAL JUDGMENT :- ORAL JUDGMENT :- ORAL JUDGMENT :- 1. Appeal is admitted. Mr.Ingale waives service for respondent No.1. Service of notice to the 2nd respondent is not necessary. Taken up for final hearing immediately. 2. The challenge in this Appeal is to the Judgment and Award dated 24th July, 2006 passed by the learned Member of the Motor Accident Claims Tribunal at Sangli in a claim petition filed by the 1st respondent under Section 166 of the Motor Vehicles Act, 1988. 3. The case of the 1st respondent is that he used to do business of plying auto-rickshaw at Sangli. On : 2 : 10th December, 2000 he was travelling by a motor cycle by Vita-Tasgaon Road. At that time, the 2nd respondent was driving a jeep and he tried to overtake the 1st respondent without blowing horn or giving signal in any other manner and gave a dash to the motor cycle of the 1st respondent. The 1st respondent was thrown at some distance due to impact of the accident. The allegation of the 1st respondent is that the accident occurred due to rash and negligent driving of the jeep by the 2nd respondent. According to him, the present appellant was the owner of the offending vehicle. Accordingly a claim petition was filed by the 1st respondent. By the impugned Judgment and Award, compensation of Rs.5,91,107/- together with interest at the rate of 7.5% p.a. from the date of filing of the claim petition till realization has been granted to the 1st respondent. 4. The contention of the appellant is that he had appointed an Advocate to contest the claim petition filed by the 1st respondent. However, the said Advocate did not file vakalatnama and failed to appear in the matter. 5. The learned Advocate for the appellant at the last hearing pointed out that a sum of Rs.2,95,000/- : 3 : has been already deposited by the appellant with the Tribunal. It must be noted here that by order dated 3rd March, 2008, the 1st respondent has been permitted to withdraw the said amount. The Advocate for the appellant pointed out that a cheque in the sum of Rs.1,05,000/- has been deposited by the appellant with the concerned Tribunal. The Advocate for the appellant submitted that the impugned Judgment and Award may be quashed and set aside for giving an opportunity to the appellant to defend the claim petition filed by the 1st respondent. She stated that the appellant has no objection if the 1st respondent is permitted to withdraw the said total amount of Rs.4,00,000/- unconditionally but subject to final outcome of the claim petition. The Advocate for the appellant stated that even if the Award is set aside, the appellant will not insist on restitution of the said amount of Rs.4,00,000/-. 6. The learned Advocate for the 1st respondent opposed the submission by pointing out that sufficient opportunity was available to the appellant to defend himself but he has not availed of the said opportunity. He pointed out the extent of injuries suffered by the 1st respondent and the extent of disability caused to the 1st respondent which has been : 4 : duly established by producing disability certificate at Exhibit-34. He submitted that the compensation awarded is reasonable and no interference is called for. 7. I have considered the submissions. The appellant has already deposited a sum of Rs.2,95,000/-. A cheque in the further amount of Rs.1,05,000/- has been already deposited. Mr.Ingale appearing for the 1st respondent stated that the said cheque dated 16th February, 2008 bearing No.030242177 drawn on Jalgaon Peoples Co-operative Bank has not been encashed till today. If the said cheque is encashed, the 1st respondent can take the total amount of Rs.4,00,000/-. As the appellant has no objection for withdrawal of the said amount by the 1st respondent, the 1st respondent will not be a sufferer in case the order of remand is passed to enable the appellant to defend the claim petition. A time bound schedule can be fixed for disposal of the claim petition. It is obvious that the said order is being passed on the assumption that the cheque in the sum of Rs.1,05,000/- will be honoured and the amount will be credited. If the said cheque is dishonoured, the consequence of dismissal of the Appeal will have to be provided for in the order. : 5 : 8. Hence, I pass the following order :- "O R D E R" "O R D E R" "O R D E R" (a). The impugned Judgment and Award dated 24th July, 2006 is quashed and set aside subject to condition that the cheque in the sum of Rs.1,05,000/- deposited by the appellant is encashed within a period of six weeks from today. (b). It is made clear that if the said cheque is dishonoured for any reason, the order of remand passed by this Judgment will not operate and the First Appeal will stand dismissed for non-prosecution. (c). In case the said cheque in the sum of Rs.1,05,000/- is honoured, the Motor Accident Claim Petition No.442 of 2001 will stand restored. (d). In such event, the parties will appear before the learned Member of the Motor : 6 : Accident Claims Tribunal, Sangli on 9th June, 2008 at 11.00 a.m. (e). It will be open for the appellant to file written statements/reply to the claim petition on or before 23rd June, 2008 and no further time will be granted to the appellant to file written statement/reply. (f). It is obvious that aforesaid direction will not apply if written statement of the appellant is already on record. (g). It will be open for the 1st respondent to lead further evidence if he so desires. It will be open for the appellant to recall the witnesses examined by the 1st respondent for further cross-examination. It is obvious that the appellant will be also entitled to lead his own evidence. (h). The claim petition shall be decided afresh as expeditiously as possible and preferably on or before 31st December, 2008. (i). The statement made by the Advocate for : 7 : the appellant that the appellant will not insist on restitution is accepted. (j). Sum of Rs.2,95,000/- is already withdrawn by the 1st respondent. The 1st respondent will be entitled to withdraw the aforesaid amount of Rs.1,05,000/-. It is obvious that the withdrawal of the sum of Rs.4,00,000/- will be subject to final outcome of the claim petition. (k). It is made clear that in view of the statement of the appellant no proceedings can be initiated by the appellant for recovery of the amount of Rs.4,00,000/- from the 1st respondent till the disposal of the claim petition. (l). The sum of Rs.25,000/- deposited by the appellant with this Court shall be refunded to the appellant. (m). There will be no orders as to costs. (n). Parties and concerned Tribunal to act upon an authenticated copy of this order. : 8 : (o). In view of this order, Civil Application No.6682 of 2007 and No.3792 of 2007 do not survive and the same are disposed of. [ABHAY S. OKA, J.] [ABHAY S. OKA, J.] [ABHAY S. OKA, J.]