1 F.A.NO. 277/1995. IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD. FIRST APPEAL NO.277 OF 1995. United India Insurance Co.Ltd., (having it's Head Office at Madras) & Divisional Office Aurangabad Through it's Divisional Manager, Aurangabad Division, Aurangabad. Branch Office-Through it/s present Brnach Manager, Gurudwara Road, NANDED, NANDED. ...Appellant. VERSUS 1. Khushawarti W/o Eknath Jamge, Age: 30 years, Occ:Household, R/o: Shivnai (Jamga), Tq.Khandar, Dist.Nanded. 2. Vithal S/o Eknath Jamge, Age: 11 years, Occ: Nil, & Minor, U/g of respondent No.1. 3. Sarika D/o Eknath Jamge, Age: 8 years, Occ: Nil, Minor, u/g Resp.No.1. 4. Krtanti D/o Eknath Jamge, Age: 5 years, Occ: Nil, Minor u/g Resp.No.1. (Resp.No.2 to 4 are minor therefore summons be served through Resp.No.1). 5. Brahmaji S/o Manikrao Jamge, Age: Major, Occu.Business, R/o Shivnai (Jamga), Tq.Khandar, Dist.Nanded. 2 F.A.NO. 277/1995. 6. Pramod S/o Yedeo Kamlapure, Age: Major, Occu: Driver, R/o: Murambi, Tq.Khandar, Dist.Nanded. ...Respondents. (Respondent No.1 to 4-Ori.Claimants. Respondent Nos.1 & 6-Ori.respondent Nos.1 & 2.) ... Mr.S.V.Kulkarni,Advocate for the appellant. Mr.S.R.Palnitkar, Advocate for respondent Nos.1 to 4. Mr.S.V.Mundhe, Advocate for respondent No.5. Mr.S.S.Shete, Advocate for respondent No.6. ... CORAM: A.V.NIRGUDE,J. Date : 15th September, 2009. ORAL JUDGMENT: 1. This appeal is filed against the Judgment and award passed by the learned District Judge,as an Ex Officio Member of Motor Accident Claims Tribun al, Nanded in Motor Accident Claim Petition No. 126/1992, awarding certain amount as a compensation in favour of the respondent Nos.1 to 4 and making it payable jointly and severally by the appellant and the respondents No.5 and 6. 2. The appellant is the Insurance Company, which had insured the vehicle in question for the period between 06.05.1992 to 05.05.1993. The vehicle in question is a commercial vehicle of make Tata having tempo type of body. The respondent Nos.1 to 4 filed the petition seeking 3 F.A.NO. 277/1995. compensation on account of death of the husband of the respondent No.1 and the father of the respondents No.2 to 4 in a Motor Vehicle accident involving the above mentioned vehicle on 18th May, 1992. It has come on record that the deceased husband of the respondent No.1 and others were traveling from Nanded to Shivani Jambga, taluka: Khandar, Dist.Nanded in the vehicle in question. The respondent No.6 was driving the vehicle. The vehicle met with an accident and most of the occupant sustained injuries. The deceased, soon after the incident succumbed to his injuries. 3. The appellant in the written statement took a specific plea that the respondent Nos.5 and 6 had committed breach of the insurance policy condition by allowing the deceased to travel in the vehicle in question. They stated that the deceased was neither fare paying passengers nor a gratuitous one. They also placed reliance on the terms and conditions of the policy which prevented the insured to use the vehicle in carrying passengers in the vehicle except employees and the other driver not exceeding six in numbers. They also specifically mentioned in the written statement that as per the terms and conditions of the permit of the vehicle, it was a goods carrying vehicle and was prohibited from carrying passengers in it. So, saying they sought 4 F.A.NO. 277/1995. to get absolved from the liability. Despite of this specific plea mentioned in the written statement, the learned District Judge ignoring it while he framed the issues, which are as under: "(1) Whether the applicants prove that death of Eknath s/o Purbhaji Jamge was the negligent driving of vehicle No.MH-26/7083 belonging to the respondents? (2) Whether the applicants prove that they are entitled to claim compensation, and from whom ? (3) What award and order ?" 4. It is obvious that the learned Judge should have framed one more issue namely, "whether the appellant (defendant No.3) proved that on account of breach of policy condition, they are absolved of the liability?". 5. It seems while the final arguments were heard, the learned Advocate appearing for the appellant probably made certain submissions based on this defence and the learned District Judge tried rather feebly to discuss this point. This discussion, however, is not in consonance with the prevalent issues. The learned Judge apparently held that since the deceased was member of a family whose goods were carried from Nanded to Shivni, he was authorised to travel and since he was authorised to travel in the vehicle, the Insurance Company would also be liable. The 5 F.A.NO. 277/1995. learned District Judge did not discuss the implication of the term of the policy which is mentioned above. The learned District Judge thus failed to discuss this issue. The learned District Judge ought to have discussed it properly and ought to have given a finding on this issue. 6. The question, therefore is, whether the appeal should be allowed? or whether it should be allowed only for remanding the case back to the Lower Court? 7. Having regard to the fact that the appellant Insurance Company has deposited the amount and part of which is already withdrawn by the respondent Nos.1 to 4, it would be better if the case is remanded back to the lower Court for recording finding on the additional issue, mentioned above. Hence, the order. i) The appeal is allowed and the impugned Judgment and Award passed by the learned District Judge, Ex-Officio Member of Motor Accident Claim Tribunal at Nanded in M.A.C.Petition No.126/1992, dated 27.01.1995, to the extent of liability of the appellant, is set aside. The case is remanded back to the lower Court. ii) The learned lower Court shall decide the 6 F.A.NO. 277/1995. issue framed above, mentioned in para No. 4 and record it's finding as to whether the appellant is liable. iii) The amount of compensation deposited by the appellant and which is invested in fixed deposit receipt shall remain invested till the disposal of the petition. iv) The learned District Judge and Ex-Officio Member of Motor Accident Claims Tribunal, Nanded, shall decide the petition within six months from the date of receipt of communication of this order. v) In view of this, All Civil Applications pending in this Appeal, shall stand disposed of. (A.V.NIRGUDE,J.) lkp