Bombay High Court
New India Assurance Company Ltd vs Baby Nanda Wd/O Devidas Salunke & 7 Ors on 21 August, 2015
Author: A. P. Bhangale
Bench: A. P. Bhangale
fa509.04
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
FIRAT APPEAL NO.509 OF 2004
New India Assurance Company Ltd.
Having its office at Old Cotton Market,
Akola, Taluka and District Akola.
Through its Divisional Manager,
Having its office at "Udhyam"
Building, West High Court Road,
Shankar Nagar Chowk, Nagpur. ..... Appellants..
ig :: VERSUS ::
1. Baby Nanda Wd/o Devidas Salunke,
Aged - Major,
Occupation Household.
2. Kum. Jaya D/o Devidas Salunke,
Aged about 14 years,
Occupation Student Education.
3. Gajanan S/o Devidas Salunke,
Aged about 10 years,
Occupation Student Education,
Respondent Nos.2 and 3 are minors,
By their natural guardian - mother
Respondent No.1.
4. Tulshiram S/o Vithobha Salunke,
Aged about 74 years,
Occupation Not Known.
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5. Sarlabai W/o Tulshiram Salunke,
Aged about 70 years,
Occupation Household.
All R/o Sirsoli, Tahsil Telhara,
District Akola.
6. Anis Ahamad Karimuddin,
Aged Major,
Occupation Owner of the Vehicle,
R/o Shaukatali Chowk,
Akot District Akola.
7. Madhukar S/o Faktuji Tayde (Deleted),
Aged about 50 years,
Occupation Driver,
R/o Umra, Tahsil Akola, District Akola.
8. Vipinkumar S/o Bharatlal Pete,
R/o Rajda Plots, Akot, District Akola. ..... Respondents.
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Shri A.J. Pophaly, Counsel for the Appellant.
Shri R.C. Joshi, Counsel for R-6.
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CORAM : A. P. BHANGALE, J.
DATE OF RESERVING JUDGMENT : August 11, 2015
DATE OF PRONOUNCING JUDGMENT : August 21, 2015
ORAL JUDGMENT
1. By this appeal, the appellant-Insurance Company has sought to challenge judgment and award dated 27.8.2002, passed .....3/-
::: Downloaded on - 24/08/2015 23:56:41 :::fa509.04 3 by learned Member of the Motor Accident Claims Tribunal, Akola, in Motor Accident Claim Petition No.113 of 1998, whereby the petition filed by the claimants legal representatives of deceased Devidas Salunke; was allowed holding that the driver/owner of the offending motor vehicle and insurance company shall jointly and severally deposit with the Tribunal amount of Rs.2.00 Lacs towards compensation along with interest at the rate of nine percent per annum from the date of claim petition till realization of the amount.
2. The facts of the case in a nut shell are stated, thus :
That deceased Devidas Salunke, by profession, was "Cobbler" and an agricultural labourer, we well. He had gone to attend the marriage ceremony at village Kawatha from village Shirsoli, District Akola. On 1.6.1997 while deceased Devidas was returning back to his village Shirsoli by a motor vehicle Matadoor bearing Registration No.MH-28/9713, the accident occurred on Risod-Malegaon Road, Near Jamthi Phata within the local .....4/-::: Downloaded on - 24/08/2015 23:56:41 :::
fa509.04 4 jurisdiction of Shripur Police Station, Sub Division, Washim due to rash and negligent driving by the driver of the said offending motor vehicle. The vehicle turned turtle and fell down below the bridge at Jamthi Phata as a result of which Devidas suffered multiple injuries and died on the spot.
3. The incident was reported to the Shirpur Police Station and the Police had registered the crime as C.R.No.71 of 1997.
According to respondent No.6 - Anis Ahamad Karimuddin/previous owner of the offending motor vehicle, he had transferred Matadoor bearing Registration No.MH-28/9713 to respondent No.8 - Vipinkumar S/o Bharatlal Pete.
4. Shri A.J. Pophaly, learned counsel for the appellant -
Insurance Company, submits that since the insured offending goods vehicle was used for carrying the passengers to attend the marriage, the Insurance Company is not liable to pay any compensation as it breaches the conditions of Policy and Permit of .....5/-
::: Downloaded on - 24/08/2015 23:56:41 :::fa509.04 5 the vehicle. Whereas, owner of the offending motor vehicle, who resisted the claim, submits that the Insurance Company cannot absolve itself from indemnifying the owner of the vehicle.
5. Learned Member of the Motor Accident Claims Tribunal found that when the fatal accident occurred on 1.6.1997 at about 03:45 am on Risod Malegaon Road, Near Jamthi Phata, Devidas died as a result of the rash and negligent driving by the driver of the offending motor vehicle viz. Matadoor bearing Registration No.MH-28/9713. The offending motor vehicle previously owned by respondent No.1 - Anis Ahamad Karimuddin was sold to respondent No.8 - Vipinkumar Bharatlal Pete. The Tribunal, as regards liability of the appellant - Insurance Company, held that sum of Rs.2.00 Lacs as determined just and proper compensation be paid by respondent Nos.2 to 4, in the claim petition, jointly and severally together with interest at the rate of nine percent per annum from the date of claim petition till realization of the amount.
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6. Learned Member of the Motor Accident Claims Tribunal while making reference to the rulings in the cases of New India Assurance Company ..vs.. Satpal Singh and others, reported at 2000(1) All MR 346 (SC) and Ramesh Kumar ..vs.. National Insurance Company Limited and others, reported at 2001(4) All MR 512 (SC) held that the Insurance Company is liable to pay the compensation to the owner of the goods, his representatives, and also gratuitous passengers travelling in the goods vehicle observing that such persons need to be treated as third party. It was further held that since deceased was gratuitous passenger in the goods vehicle, the Insurance Company is bound to pay the compensation. Learned Member of the Tribunal also observed that Insurance Company did not prove the breach of conditions of the Insurance Policy and distinguished the fact of driving vehicle without holding valid driving licence from the fact of carrying passengers or gratuitous persons in a goods vehicle while considering the ruling in the case of New India Assurance .....7/-
::: Downloaded on - 24/08/2015 23:56:41 :::fa509.04 7 Company Limited ..vs.. Kamla and others reported at (2001) SC 342.
7. Shri Pophaly, learned counsel for the appellant -
Insurance Company, submits that the Insurance Policy does not cover the names of the passengers in a goods vehicle. He further submits that since the goods vehicle cannot be permitted to carry passengers, the insurer would not liable to pay any compensation in view of the ruling in the case of New India Assurance Company Limited ..vs.. Asha Rani and others, reported at (2003)2 SCC 222.
In pursuant to above submissions, learned counsel for the respondent submits that the insurer is primarily liable to compensate the claimant/s of the victim of the vehicular accident. It is further submitted that if, according to the Insurance Company it is not liable to compensate claimant/s of the victim of the vehicular accident, the Insurance Company is at liberty to move the Tribunal under the Motor Vehicles Act, 1988 so as to recover the amount .....8/-
::: Downloaded on - 24/08/2015 23:56:41 :::fa509.04 8 already paid to the claimant/s of the victim of the vehicular accident from the owner/driver of the offending motor vehicle.
8. Having heard the above submissions made on behalf of the rival parties and gone through the rulings cited (supra), I find that post 1988 i.e. after the amendment of Motor Vehicles Act, 1988 as contra distinguished from the Motor Vehicles Act, 1939 the object to compensate the victim of the motor vehicular accident adequately to restore his/her dependents back to the position as prior to the accident as far as possible.
9. Considering the view taken by the Motor Accident Claims Tribunal, Akola with reference to the rulings of the Apex Court, no interference is warranted in the judgment and award impugned in this first appeal. Hence, the first appeal is dismissed with costs.
JUDGE !! BRW !! ...../-
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