Bombay High Court
United India Insurance Co. Ltd vs Smt. Ratna Popat Patil on 2 February, 2011
Author: Shrihari P. Davare
Bench: Shrihari P. Davare
1 fa1526.10
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AURANGABAD
FIRST APPEAL NO. 1526 OF 2010
1 United India Insurance Co. Ltd.,
through its Divisional Manager,
United India Insurance Co. Ltd.,
Jalgaon Divisional Office,
Jalgaon, District Jalgaon ...Appellant
(Original Opponent no.2)
VERSUS
1 Smt. Ratna Popat Patil,
age 54 years, occ. Household,
r/o 26, Arunkumar Vaidyanagar,
Sakri Road,
At & Post Dhule, Dist. Dhule,
2 Mr. Prakash Shivram Patil,
age Major, occ. Rickshaw Owner
r/o Lane No.14, Shanti Nagar, Moglai,
Sakri Road, At & Post. & Dist. Dhule ...Respondents
(Resp. No. 1 Orig. Claimant
& No. 2 Orig. Opp. No. 1)
.....
Shri A.B.Gatne, advocate for the appellant
Shri R.C.Patil, advocate for respondent no.1
Shri Mukul Kulkarni, advocate for respondent no.2
.....
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2 fa1526.10
CORAM : SHRIHARI P. DAVARE, J.
DATE OF RESERVING THE JUDGMENT : 27.1.2011 DATE OF PRONOUNCING THE JUDGMENT : 02.2.2011 J U D G M E N T :-
1The appellant Insurance Company (Original Respondent no.2) has preferred the present appeal challenging the judgment and award, rendered by the learned Chairman, Motor Accident Claims Tribunal, Dhule, in Motor Accident Claim Petition No. 1489 of 2005 on 1.4.2010.
2 Notice for final disposal of the present appeal was issued by this court on 21.10.2010 and Shri R.C.Patil, learned counsel waived the service thereof for respondent no.1, as well as Shri Mukul Kulkarni, learned counsel waived the service thereof for respondent no.2. Thereafter, the matter was adjourned from time to time at the request of learned counsel for the parties and thereafter heard learned counsel for the respective parties finally on 27.1.2011. The parties are hereinafter referred as per their original status.
::: Downloaded on - 09/06/2013 16:49:23 :::3 fa1526.10 3 The petitioner i.e. respondent no.1 herein viz. Smt. Ratna Popat Patil, who is the legal heir of deceased Popat Shivram Patil, contends that deceased Popat Shivram Patil was her husband. His age was 60 years at the time of death and he was retired from the service. He was educated upto M.Sc. (Agri.) and was getting pension of Rs.14,000/- per month. She contended that on 20.8.2005, as usual, her husband had gone out for evening walk on Sakri road. At this juncture, one auto rickshaw bearing registration No. MH-18/B-7964 came from behind and dashed him. He was taken to the Civil Hospital and then to Ashta Hospital, where he expired.
4 It is alleged that the accident took place because of the negligence on the part of the driver of the auto rickshaw. The petitioner contended that she claimed Rs.50,000/- towards medical expenses of her husband. She further contended that she has no son, but has two daughters. Hence, she claimed compensation of Rs.3,00,000/- from respondent no.1 Prakash Shivram Bhavsar i.e. owner of the auto rickshaw and respondent no.2 United Insurance Company i.e. the insurer of the said auto rickshaw.
5 Accordingly, notices were issued to the respondents and respondent no.1 appeared, but did not file written statement, and ::: Downloaded on - 09/06/2013 16:49:23 ::: 4 fa1526.10 therefore, claim petition proceeded against him without written statement; whereas respondent no.2 i.e. the appellant herein appeared and filed reply and resisted the claim petition of the petitioner contending that there was no negligence on the part of the driver of the auto rickshaw, but there was negligence on the part of deceased himself, as he was walking between the road without taking any care and he all of a sudden moved on the road and struck against the auto rickshaw. Respondent no.2 i.e. the appellant herein also denied the age and monthly income of the deceased, as well as denied the claim of medical expenses and prayed that the said petition be dismissed.
6 The Tribunal framed the issues at Exh.16. In order to prove the claim of the petitioner, the petitioner examined herself and produced the police papers and other documents on record. It appears from the police papers that there was negligence on the part of the driver, namely Rajesh Shivaji Wagh of the auto rickshaw bearing No. MH-18/B-7964, and accordingly, he was prosecuted and case was registered against him bearing S.T.C.C. No. 4644 of 2005.
It was the case of respondent no.2 Insurance Company i.e. appellant herein that there was negligence on the part of the deceased himself, but the Insurance Company did not examine any ::: Downloaded on - 09/06/2013 16:49:23 ::: 5 fa1526.10 witness. Accordingly, taking into consideration the evidence of the petitioner and police papers, the Tribunal held that there was sole negligence on the part of the driver, namely Rajesh Shivaji Wagh of the auto rickshaw bearing MH-18/B-7964 and answered the issue in that respect in the affirmative.
7 The Tribunal further discussed the aspect of holding valid licence by the auto rickshaw driver, namely Rajesh Shivaji Wagh at the relevant time i.e. on the date of the accident and held that the said driver was not having valid licence on the date of accident i.e. 20.8.2005. However, relying upon the Ruling of Swaran Singh the Tribunal did not exonerate the appellant Insurance Company and considering the age and income of the deceased applied the multiplier of 5 and awarded compensation of Rs.1,04,929/- to the petitioner from the owner as well as the Insurance Company (inclusive of no fault liability amount) along with simple interest at the rate of 7.5 per cent per annum from the date of petition till its realisation, by judgment and order dated 1.4.2010. Being aggrieved and dissatisfied by the said judgment and award dated 1.4.2010, the appellant Insurance Company has preferred the present appeal assailing the same.
::: Downloaded on - 09/06/2013 16:49:23 :::6 fa1526.10 8 Shri A.B. Gatne, learned counsel appearing for the appellant Insurance Company canvassed that though the driver of the offending vehicle may not be a necessary party to the claim petition, but in view of the judgment of the Apex Court in Machindranath's case, to make a finding in respect of the negligence of the driver without involving him as at least witness, would vitiate the proceeding not only on the basis of fact that driver has not been given opportunity to make representation, but also because the evidence to make a finding as regards negligence, would necessarily be inadequate. He further canvassed that the said judgment lays down that without deposition on the part of the driver of the offending vehicle and without his involvement at least as a witness, the adverse finding on negligence cannot be made against him. Accordingly, he urged that the driver would be a proper party to the proceeding.
9 Besides that, learned counsel Shri Gatne appearing for the appellant Insurance Company invited my attention to Rule 260 (1) and (2) of the Maharashtra Motor Vehicles Rules, 1989, which is reproduced hereunder :
" Rule 260. Notice to the parties involved :- (1) If the ::: Downloaded on - 09/06/2013 16:49:23 ::: 7 fa1526.10 application is not dismissed under Rule 259, the Claims Tribunal shall, send to the owner or the driver of the vehicle or both involved in the accident and its insurer, a copy of the application, and the annesures thereto together with the notice of the date on which the parties shall enter their appearance either in person, or through their duly authorized agents, and may also file their written statement, if any with additional copies of the same, for being furnished to the other parties connected with the matter. It will dispose off the application, and may call upon the parties to produce on that date any evidence which they may wish to tender.
(2) The service of the notice shall be effected on the owner, the driver and the insurer of the vehicle in question, as the case may be, by way of personal service, through the bailiff or by Registered Post A/D or both.
.......... ............. .............. "
The afore said Rule 260 (1) states that the Claims Tribunal shall send to the owner or driver of the vehicle or both involved in the accident and its insurer, a copy of the application, and annexures thereto together with notice of the date on which the parties shall enter their appearance, either in person or through their duly authorised agents, and may also file written statement, if any, with additional copies of the same, for being furnished to the other parties ::: Downloaded on - 09/06/2013 16:49:23 ::: 8 fa1526.10 connected with the matter. The Sub-Rule (2) of Rule 260 contemplates that the service of notice shall be effected on the owner and driver of the vehicle or both involved in the accident and the insurer of the vehicle in question, as the case may be, by way of personal service through bailiff or by Registered Post Acknowledgment Due or both, as the Tribunal may deem fit.10
Thus, it is clear from the text of both the aforesaid provisions that they are mandatory and are required to be followed by the Claims Tribunal in respect of the owner, driver and the insurer of the vehicle in question, in the manner prescribed. In the light of the aforesaid aspects, the Claims Tribunal is expected to pass an award under Section 168 of the Motor Vehicles Act, 1988 in respect of amount of compensation to be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or in all them, as the case may be. Whether the driver of the offending vehicle is found to be rash and negligent in driving the vehicle and is held liable to pay the compensation, will depend upon the facts and circumstances of each case and the Tribunal may direct only the owner and the insurer of the vehicle to pay the compensation, but involvement of the driver in accordance with the aforesaid Rules in claim petition is a must.::: Downloaded on - 09/06/2013 16:49:23 :::
9 fa1526.10 11 The next question arises whether after compliance of the aforesaid provision, will it be necessary to examine the driver of the offending vehicle as a witness and answer lies in the wish of the parties and the parties to decide in the facts and circumstances of the case in that respect whether to examine the driver as a witness to prove negligence or to prove breach of policy or any defect under Section 149 (2) of the said Act, since it would be a question of burden of proof.
12 To substantiate the argument canvassed by the learned counsel for the appellant Insurance Company, he placed reliance on the finding given by this court in the case of New India Assurance Company Ltd., Aurangabad vs Suman Bhaskar Pawar and others, reported at 2010 (2) Mh.L.J. 177.
13 Apparently, there is substance in the submissions advanced by the learned counsel Shri Gatne appearing for the appellant Insurance Company and in view of the judgment of the Apex Court in Machidranath's case, the driver of the offending vehicle would be a proper party or he should at least be examined as a witness on the allegations of rash and negligent driving on his part ::: Downloaded on - 09/06/2013 16:49:23 :::
10 fa1526.10 and without his involvement, no adverse finding in respect of negligence can be made against him and if such findings are recorded in his absence, same would vitiate the proceeding.
However, in the instant case, the driver, namely Rajesh Shivaji Wagh, of the offending vehicle has not been impleaded as party to the claim petition by the petitioner and the adverse findings in respect of his negligence have been recorded behind his back and in his absence by the Tribunal by the impugned judgment and award, and therefore, same would be vitiated, and therefore, on the said ground itself, present appeal deserves to be allowed partly quashing and setting aside the impugned judgment and award and the matter deserves to be remanded back to the Tribunal on the ground that there is non-compliance of the mandatory provisions of Rule 260 (1) and (2) of the Maharashtra Motor Vehicles Rules, 1989, with a further direction to follow the mandate of the said Rule, keeping all other points open for agitation to the respective parties.
14 In the result, the present appeal is allowed partly and the impugned judgment and order, rendered by the learned Chairman, Motor Accident Claims Tribunal, Dhule, in Motor Accident Claim Petition No. 1489 of 2005 on 1.4.2010 is quashed and set aside, and the matter is remitted back to the said Tribunal for holding the trial ::: Downloaded on - 09/06/2013 16:49:23 ::: 11 fa1526.10 afresh, in accordance with law, after issuing notices to the owner, namely Prakash Shivram Bhavsar and driver, namely Rajesh Shivaji Wagh of the offending vehicle i.e. auto rickshaw bearing No. MH-18/B-7964 involved in the accident in accordance with Rules 260 (1) and (2) of the Maharashtra Motor Vehicles Rules, 1989 in the manner stated hereinabove, keeping all other points open for agitation to the respective parties. The Tribunal shall leave upon the parties to call the driver, namely Rajesh Shivaji Wagh and examine him as witness, if they desire to do so, and the said exercise shall be completed by the Tribunal within the period of six months from the date of receipt of the copy of this judgment.
15 Learned counsel for the appellant Insurance Company states that amount of Rs. 65,414/- has been deposited in this court as per the directions of this court and same shall be remitted back to the concerned Tribunal, which shall deal with it by passing appropriate orders in that respect at the time of pronouncement of the judgment afresh as afore said.
(SHRIHARI P. DAVARE, J.) dbm/fa1526.10 ::: Downloaded on - 09/06/2013 16:49:23 :::