1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO.2527 OF 2008 Date of decision:3/8/2010 For approval and signature HON'BLE MR. JUSTICE A.V.NIRGUDE 1. Whether the Reporters of Local Papers Yes may be allowed to see the Judgment ? 2. To be referred to the Reporter or not ? No 3. Whether Their Lordships wish to see No. the fair copy of the Judgment ? 4. Whether this case involves a substantial? No. question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder ? 5. Whether it is to be circulated to the No. Civil Judges ? 6. Whether the case involves an important No question of law and whether a copy of the Order should be sent to Bombay, Goa and Nagpur Office ? (A.G. PARALIKAR) Private Secretary agp/office/2527-08fa 2 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO.2527 OF 2008 (with C.A.No.10704/2010) 1. Pralhad s/o Jyotiba @ Jotiram Bade, Age 46 yrs. Occu: Agriculture, r/o Chopanwadi, Tq. Ambajogai, Dist.:Latur. 2. Saudagar s/o Sambhaji Bade, Age 40 yrs, Occu: Service r/o Chopanwadi, Tq. : Ambajogai, Dist. Latur. ...APPELLANTS (Ori.Respondents) VERSUS 1. Smt.Sulochanabai w/o Bhanudas Kamble, Age 40 Yrs., Occu: Household, r/o Chopanwadi, Tq.Ambajogai, Dist. Latur, At present r/o. Wadwal (N) Tq.Chakur, Dist.Latur. 2. Padminbai w/o Baburao Kamble, Age 70 Yrs., Occu:Household, R/o Chopanwadi, Tq.Ambajogai, Dist. Latur. ...RESPONDENTS (No.1 Ori.Claimant & No.2 Ori. R-3) ... Mr.S.W.Munde, Adv., for the appellants. Mr.P.G.Rodge, Adv., for the respondent no.1. Respondent no.2 served. 3 CORAM: A.V.NIRGUDE, J. DATE :3/8/2010 *** ORAL JUDGMENT: 1. This appeal is filed against the order dt. 15.2.2007, passed by the Member of Motor Accident Claims Trimbunal, Latur, on Exh.5 in M.A.C.P. No.253/2006. 2. The Respondent no.1- the claimant- moved an application under Section 166 of Motor Vehicles Act, 1988 ( henceforth, to be referred as "the Act"), against the present appellant nos. 1 and 2. It is the case of respondent no.1 that her husband died on 5th Oct.,1997, in a vehicular accident involving the vehicle owned by the appellant no.1 and driven by the appellant no.2. During the pendency of such application, she made an application under Section 140 of the Act to claim fixed compensation of Rs.50,000/- as 'no fault liability' of the appellants. The Learned Member allowed such application. Against this order, the appeal is filed. 3. In order to appreciate the rival submissions one must quote Section 140 of the Act, which reads as under: "140. Liability to pay compensation in certain cases on the principle of no fault. (1) Where death or permanent disablement of any person has resulted from an accident arising out of the use of a motor vehicle or motor vehicles, the owner of 4 the vehicle shall, or, as the case may be, the owners of the vehicles shall, jointly and severally, be liable to pay compensation in respect of such death or disablement in accordance with the provisions of this section. (2) The amount of compensation which shall be payable under sub-section (1) in respect of the death of any person shall be a fixed sum of [fifty thousand rupees] and the amount of compensation payable under that sub- section in respect of the permanent disablement of any person shall be a fixed sum of [twenty-five thousand rupees]. (3) In any claim for compensation under sub-section (1), the claimant shall not be required to plead and establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act, neglect or default of the owner or owners of the vehicle or vehicles concerned or of any other person. (4) A claim for compensation under sub-section (1) shall not be defeated by reason of any wrongful act, neglect or default of the person in respect of whose death or permanent disablement the claim has been made nor shall the quantum of compensation recoverable in respect of such death or permanent disablement be reduced on the basis of the share of such person in the responsibility for such death or permanent disablement. [(5) Notwithstanding anything contained in sub-section (2) regarding death or bodily injury to any person, for which the owner of the vehicle is liable to give compensation for relief, he is also liable to pay compensation under any other law for the time being in force: Provided that the amount of such compensation to be given under any other law shall be reduced from the amount of compensation payable under this section or under section 163A.]" In view of this provision, the applicant should be able to prove prima facie that death had occurred in an 5 accident arising out of and use of a particular motor vehicle. The question, therefore, is whether, prima facie, the respondent no.1 could prove that the vehicle belonging to the appellant no.1 and driven by appellant no.2 was used and had caused accident which resulted into death of respondent no.1's husband? 4. The facts of the case are quite peculiar. It is an admitted fact that the appellant no.1's vehicle was a tractor and trolley. It is further admitted that on 5th Oct., 1997, the appellant no.2 was driving this vehicle and the husband of respondent no.1 was travelling in such vehicle sitting in the trolley. It is the case of the respondent no.1 that, due to rash and negligent driving of the appellant no. 2, her husband fell down from the trolley and sustained injury which ultimately proved fatal. 5. The appellants came with a specific case. They say that the husband of respondent no.1 and one Venkati were working as labour on the vehicle of the appellant no.1. They both were sitting in the trolley at the relevaqnt time. It is their case that at one spot, near village Chopanwadi, the appellant no.2 stopped the vehicle and both the labourers, including the husband of the respondent no.1 got down from the trolley. While he was crossing the road, a speeding truck knocked him down. The truck did not stop and so, the appellant no.2 and Venkati the other labourer could not notice the registration number of such vehicle. They, however, took the injured husband of respondent no.1 to a hospital where he died. The above 6 mentioned eye witness of the incident reported this incident to the Police as mentioned above. The Police registered an offence under Section 304-A and 279, etc. of IPC but, after investigation, the Police filed the chargesheet against the appellant no.2 alleging that the deceased fell from the trolley when the tractor and trolley were moving. 6. The learned Member of the Tribunal held that since the Police ultimately came to the conclusion that it was the appellant no.2 who had caused death of the husband of the respondent no.1, he would assume that the deceased died in an accident arising out of use of the tractor and trolley owned by appellant no.1. 7. On perusal of the entire record of the lower Court, I do not find anything to prima facie come to a conclusion that the accident had taken place due to the deceased falling from the trolley. Specially the contents of the F.I.R. would prima facie support the appellants' case. It is not clear from the record as to why the Police came to the conclusion mentioned above. The ld. member of the tribunal thus could not have held that because the Police came to such conclusion, prima facie, that the accident took place due to use of the vehicles in question. I am of the view that the order of the learned Member deserves to be set aside. 8. Though I am setting aside this order, I am not dismissing the application under Section 140 of the Act. It is better, in this situation, to decide both the applications 7 together after recording detail evidence. It would be necessary for respondent no.1 to prove that her husband, in fact, fell from the trolley which was attached to the tractor and these vehicles were in moving condition when the accident took place. Unless that is proved, her claim may not succeed. Hence, order: :ORDER: (a) The appeal is allowed. The impugned order is set aside. (b) Learned Member of the Tribunal shall decide both the applications; under Section 166 and under Section 140 of the Act together, after recording the evidence. (c) R & P be sent back to the lower Court. In view of this, Civil Application (No10704/2010) stands disposed of. (d) The appellant no.1, who has deposited the amount of Rs.50,000/- as per the impugned order, is at liberty to withdraw the same with the permission of the lower Court. [A.V.NIRGUDE, J.] agp/2527-08fa/ok