5 FA 2594.2009 - ( J ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO. 2594 OF 2009 Sunil Baban Deshmukh Age : 39 Yrs., Occ. Agril. R/o : Bholewadi-Kotul, Tq. Akole, Dist. Ahmednagar. ..... APPELLANT VERSUS 1. Budhabai Wd/o Namdeo Dagale Age : 44 Yrs., Occ. Household, R/o : Chinchavane, Tq. Akole, Dist. Ahmednagar. 2. Maruti Namdeo Dagale Age : 20 Yrs., Occ. Education, R/o : Chinchavane, Tq. Akole, Dist. Ahmednagar. 3. Minanath Namdeo Dagale Age : 14 Yrs., Occ. Education, Under guardianship of natural Mother – respondent no. 1 R/o : Chinchavane, Tq. Akole, Dist. Ahmednagar. 4. Somnath Namdeo Dagale Age : 18 Yrs., Occ. Education, R/o : Chinchavane, Tq. Akole, 5 FA 2594.2009 - ( J ) Dist. Ahmednagar. 5. Uttam Namdeo Dagale Age : 23 Yrs., Occ. Agril., R/o : Chinchavane, Tq. Akole, Dist. Ahmednagar. 6. The Oriental Insurance Company Ltd. Through its Branch Manager, Main Road, Sangamner, Tq. Sangamner, Dist. Ahmednagar. ..... RESPONDENT Mr.S.T.Shelke ,Advocate for the appellant. Mr. A.G.Kanade, Advocate for Resp. No. 6. CORAM : S.V. GANGAPURWALA, J. DATE OF JUDGMENT : 10/03/2011 JUDGMENT : 1. Heard the learned counsel for the respective parties. 2. The present Appeal is by the owner of the vehicle which is alleged to have been involved in the accident. The present respondent nos. 1 to 5 had filed the claim petition before the Motor Accident Claims Tribunal for compensation on account of the death of deceased Namdeo caused in said accident. The Tribunal partly allowed the claim and granted compensation of Rs. 3,10,000/- to the claimants. The Award was passed 5 FA 2594.2009 - ( J ) against the present appellant. The Insurance Company was exonerated. The appellant being aggrieved by the same, has filed the present Appeal. 3. Mr. S.T. Shelke, the learned counsel for the appellant submits that there was no evidence on record to substantiate that the deceased was fare paying passenger. In absence of any evidence of that sort, the Insurance Company could not have been exonerated. The terms of the Policy were not breached. The insurance was comprehensive insurance and even the premium was paid covering passengers and the driver. The learned counsel further contends that an opportunity be given to the appellant to adduce evidence regarding rashness and negligence, so also about the other factual matrix as due to the circumstances beyond his control, the appellant could not adduce his evidence. 4. Mr. Kanade, the learned counsel for the Insurance company supported the Judgment and Award passed by the Tribunal and contends that ample opportunity was given to the appellant, but the appellant on his own volition did not enter the witness box. The learned counsel contends that even the charge sheet was filed for the offence suggesting that the vehicle was used in breach of the policy. The charge sheet was filed after recording the statements of the injured and the witnesses. This fact is 5 FA 2594.2009 - ( J ) sufficient to show that the vehicle was being used in breach of the policy and submitted that there is no necessity for remand of the matter. 5. The learned counsel for the claimant submits that the deceased was not the fare paying passenger and the Insurance Company in fact should not have exonerated. As far as quantum is concerned, the learned counsel contends that the Tribunal has awarded just and reasonable amount of compensation. 6. With the assistance of the learned counsel, I have gone through the Judgment and Award. 7. No doubt, it is not the case that no opportunity was given to the appellant to adduce the evidence. There is no precise evidence regarding the aspect whether the passengers in the vehicle were fare paying passengers or not. The Tribunal can not be simply guided by the charge sheet filed in a criminal case, but the Tribunal has to independently come to the conclusion about the facts averred and denied by the respective parties. In that light of the matter, taking liberal approach, I am inclined to accept the request of the learned counsel for the appellant and remit the matter to the Tribunal for consideration afresh after affording opportunity to the 5 FA 2594.2009 - ( J ) parties to adduce additional evidence, if they so desire. 8. In the result, the Appeal is allowed. The impugned Judgment and Award is set aside and the parties are relegated to the Tribunal. The parties shall appear before the Motor Accident Claims Tribunal, Sangamner on 5/4/2011. The learned Tribunal shall after giving opportunity to the parties to adduce additional evidence decide the same within the period of six months thereafter. 9. I have not express any opinion on the merits of the matter. All the points are kept open. The amount deposited by the appellant is allowed to be withdrawn by the present respondent nos. 1 to 5 as entitlement of claimant is not much disputed. [ S.V. GANGAPURWALA,J. ] KNP/FA 2594.2009