1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 1373 OF 2008 FIRST APPEAL NO. 1373 OF 2008 FIRST APPEAL NO. 1373 OF 2008 WITH CIVIL APPLICATION NO. 1076 OF 2008 Manager, ICICI Lombard General Insurance Co.Ltd. ..Appellant (Orig. Opponent No.2) Versus Shri Santosh Shripat Kharade & Anr. ..Respondents Mr. Nikhil Mehta, Advocate i/b. K.M.C. Legal Venture, Advocates, for the appellant. Mr. P.R.Salvi, Advocate, i/b. Mr. R.R.Salvi, Advocate, for the respondent No.1. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. DATE: 16th July, 2008. DATE: 16th July, 2008. DATE: 16th July, 2008. P.C. P.C. P.C. 1. Heard the learned Counsel for the parties. 2 2. the respondent No.1, who is the original claimant, has suffered certain injuries in the motor accident and he filed MACP No.207 of 2004 before the Motor Accidents Claim Tribunal at Raigad-Alibag. The respondent No.2 is the owner of the vehicle which was insured with the present appellant. The present appellant in spite of service, had not appeared and the matter proceeded ex-parte. The respondent no.2 - the vehicle owner had taken a plea in the written statement that by way of full and final settlement of the claim of the claimant, an amount of Rs.1,85,000/- was paid. However, it appears that at the time of trial, the claimant was not cross-examined and the respondent no.2 also did not produce any documentary evidence to establish that the amount of Rs.1,85,000/- was paid in full and final settlement of the claim. 3. The learned Counsel for the appellant has produced copies of the documents before this Court to show that in fact such a settlement had taken place and the amount was received by the claimant. As this material was not before the Tribunal, that payment as well as the settlement could not be considered and the Tribunal passed the impugned award directing the respondents to pay compensation of Rs.3 lacs jointly and severally. 3 That judgment is challenged in the present appeal by the opponent No.2. 4. After some discussion at the Bar, the learned Counsel for the appellant and the respondent No.1 agreed that, in view of the fact that entire decretal amount is already deposited by the appellant, the impugned judgment may be set aside and MACP No.207 of 2004 may be remanded back to the trial Court for fresh hearing and disposal as per law after giving opportunity to the appellant to file written statement and necessary documents. 5. Therefore, subject to the appellant paying cost of Rs.10,000/- to the respondent No.1 within four weeks from this date, the Appeal is allowed. The impugned judgment is hereby set aside and MACP No.207 of 2004 is remanded back to the MACT, Raigad-Alibag with liberty to the appellant/opponent No.2 to file written statement and relevant documents within eight weeks from this date. The Tribunal shall dispose of the said claim petition afresh after giving opportunity to the parties to lead evidence as maybe necessary. 6. The amount, which is deposited by the appellant before the trial Court, shall continue to remain in 4 deposit and be invested with some Nationalised Bank. It shall be subject to the result of the claim petition. 7. As the Appeal itself is finally disposed of, the Civil Application does not survive and stands disposed of accordingly. (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)