1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD FIRST APPEAL NO.483 OF 1996 The United India Insurance Company Ltd., branch office at Gandhi Chowk (Old),Jalna Tal.,Dist. Jalna, through its Divisional Office, Aurangabad, Divisional Manager, Aurangabad Divn., Appellant/ Aurangabad. Resp.No.2. versus 1. Pandurang s/o Gangaram Gadekar age major, occup. business and Respondent/ driver r/of Shiradhon, Taluka Resp. No.1. Ambad, District Jalna. 2. Baburao s/o Agaji Wable, age 45 years, occup. agril. and Police Patil. 3. Muktabai w/o Baburao Wable age 40 years, occupation household and agriculture. 4. Pralhad Baburao Wable, age 21 years, (Blind), 5. Anita d/o Baburao Wable, aged 12 years, minor. 2 6. Janabai d/o Baburao Wable, Respondents/ age 10 years, minor. Original Claimant Nos. 7. Meenabai d/o Baburao Wable, 1 to 6. aged 7 years, minor. Respondent Nos. 5 to 7 being Minors are U/G of Respdt.No. 2 Baburao. Respondent No.4 being blind filed claim through Respdt. No.2 real father i.e. next friend. All r/of Shiradhon, Taluka Ambad, District Jalna. ------------------------------------------------------ Shri S.V.Kulkarni, Advocate, for the appellant. Shri S.S. Nirkhee, Advocate, holding for Shri R.D.Deshpande, Advocate for Respondent Nos. 2 to 7. ------------------------------------------------------ Coram : P.R. Borkar, J. Date : April 23, 2010 ORAL JUDGMENT 01. This appeal is filed by insurance company being aggrieved by the judgment and award passed by Ex-Official Member, Motor Accident Claims Tribunal, Jalna in Motor Accident Claim No.50 of 1993 decided on 3 6.5.1996 whereby the insurance company and the owner of the matador in question were jointly held responsible for paying compensation of Rs.1,25,000/= to the claimants who are present Respondent Nos. 1 to 7. 02. Briefly stated, deceased Bhagwat Wable was son of Respondent Nos. 2 and 3 and brother of Respondent Nos. 4 to 7. On 7.5.1993, deceased Bhagwat and Respondent No.2 Baburao along with 6-7 persons were travelling in matador bearing No.CB-8845. When the matador was being driven on Ambad road near Shiradhon, due to rash and negligent driving, Bhagwat was thrown out of vehicle and was badly injured. He was taken to hospital, but succumbed to the injuries. He was 20 years of age and was the only earning member in the family. His annual income was Rs.40,000/=. In the circumstances, compensation of Rs.1,00,000/= was prayed for. 03. Insurance company-original Respondent No.2 appeared and contested the claim by filing written statement. One of the contentions taken in paragraph 17 was that the deceased was travelling as gratuitous passenger. He was travelling illegally in goods truck 4 and as such, the insurance company is not liable to pay compensation. No issue on this point was raised by the Tribunal nor the said defence was taken into consideration. 04. It appears that original Respondent No.1 Pandurang Gadekar, the owner of the vehicle in question, had engaged an Advocate, but had not filed written statement. 05. Heard learned counsel for respective parties. 06. Shri S.V.Kulkarni, learned counsel for appellant-insurance company cited several authorities and submitted that the deceased was gratuitous passenger and therefore the insurance company is not liable. He drew my attention to policy at Exhibit 37/1 and stated that it is an "Act policy" in respect of goods vehicle and as such insurance company cannot be held liable. However, Advocate Shri Nirkhi for Respondents-claimants drew my attention to the roznama dated 20.4.1996 and pointed out that at the time of argument the said policy was produced and the production was allowed but the document was neither 5 admitted nor proved by leading evidence. On perusal of application and the list, it does not appear that the policy was given any exhibit number, and only application is given exhibit No.36 and the list as Exh.37 and the insurance policy is marked Exhibit 37/1. So, it is clear that the insurance policy was not admitted nor exhibited and as such, the same cannot be considered. 07. After giving due consideration to the arguments advanced, in my opinion, this is a case wherein insurance policy should have been proved by insurance company and mere production of the same was not sufficient. Therefore, at the request of learned counsel for the appellant, I am inclined to remand the matter on certain condition. 08. In the result, appeal is partly allowed. The judgment and award dated 6.5.1996 is hereby set aside. The matter is remanded. The Motor Accident Claims Tribunal, Jalna, is directed to take Motor Accident Claim No.50 of 1993 on its file. The Tribunal shall give notice to the parties for appearance; give opportunity to the insurance company to lead evidence to prove the insurance policy and other parties to 6 rebut such evidence and then decide the matter afresh as early as possible. 09. The appellant-insurance company to pay Rs. 3000/= towards costs of this appeal to Respondent Nos. 2 to 7. pnd/fa483.96 (P.R.BORKAR, J.)