1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION No. 3120 & 3145 OF 2009. ( Nirmalabai W. Mandaokar and another -: versus :- Shankar M. Chole and others.) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. DATED : NOVEMBER 11, 2009. The matters are to be disposed of finally at the stage of admission, as per order of this Court dated 31.07.2009. Shri A.A. Naik, learned counsel appearing for petitioners in both the matters state that, children namely Veena and Dhiraj have been killed in vehicular accident and therefore, Motor Accident Claim Petition No.102/2006 has been filed by them for claiming compensation in relation to death of son Dhiraj and Claim Petition No.103/2006 for compensation for death of daughter Veena. The truck owner and truck driver did not appear and they have not filed any written statement before the Claims Tribunal. Respondent no.3 Insurance Company however, contended that in relation to very same accident, cognizance has been taken under Section 302 of Indian Penal Code, and therefore, it cannot be viewed as a vehicular accident for which compensation can be claimed under section 166 of the Motor Vehicles Act, 1988. He points out that this objection has been accepted by the Motor Accident Claims Tribunal, by impugned order dated 24.03.2009 and Claim Petitions have been dismissed 2 for want of jurisdiction. According to him, reliance upon the judgment of Gauhati High Court in AIR 2007 Gauhati, 77 (Maya Rani Ghosh .vrs. State of Tripura) is misconceived and he also states that in its later judgment reported at 2008 ACJ 1728 (Bipal Bashi Das .vrs. Oriental Insurance Co.), the Division Bench of Gauhati High Court has distinguished this earlier judgment. He points out that no evidence was recorded before passing the impugned order and facts disclose that the truck being driven rashly, first dashed motor cycle on which Veena and Dhiraj were riding and thereafter the driver tried to flee away and one Pawan who was coming behind the truck went ahead and tried to stop the driver from fleeing away. The driver dashed against the motor cycle of said Pawan, killing Pawan in the process. He states that Section 302 of Indian Penal Code has been invoked in relation to death of said Pawan. In support of his contentions, he has also pointed out the judgment dated 21.07.2008 delivered in Sessions Trial No. 95/2006 in relation to said incident by the Adhoc Additional Sessions Judge, Wardha. Ms. Anita Singh, learned counsel appearing for respondent no.3 has contended that in relation to very same episode, offence under section 279, 338, 304-A and 302 of Indian Penal Code were registered. The moment offence under section 302 was registered for said accident, the distinction sought to be drawn by petitioners is not available. She argues that, Motor Accident Claims Tribunal has taken correct view of the matter. Perusal of the judgment of acquittal clearly shows that in relation to accidental death of Veena and Dhiraj FIR No.17/2006 mentions offence punishable under Sections 3 279, 338, 304-A I.P.C., ultimately at Exh.12 charges framed were only under Section 279 and 304-A of I.P.C. And the accused were tried therefor. The judgment also shows that for killing Pawan, offence under section 302 was registered. In view of the pleadings of the claimants before the Claims Tribunal and the sequence in which the accident occurred, it is apparent that no final verdict in this respect could have been delivered unless and until facts were verified. The facts could have been verified only after necessary evidence came on record. Reliance upon judgment of Gauhati High Court by the Claims Tribunal without verification of the facts, therefore, is unsustainable. The impugned order dated 24.03.2009 passed in Claim Petition Nos. 102 and 103 of 2006 is unsustainable. The same is therefore, quashed and set aside. Claim Petitions are restored back to the file of the Motor Accident Claims Tribunal, Wardha for taking fresh decision on merits and in accordance with law. The objection raised by the Insurance Company vide Exh.27 in Claim Petition No. 102/2006 and vide Exh.30 in Claim Petition No.103/2006 is kept alive for its consideration at the stage of final arguments, after the facts are crystallized. Both the Writ Petitions are accordingly allowed and the Claim Petitions are remanded back to the Motor Accident Claims Tribunal. The Claims Tribunal to attempt to decide the same as early as possible. Rule accordingly, no costs. JUDGE Rgd.