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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
FIRST APPEAL NO.367 OF 2003
The Manager,
United India Insurance Company
Limited, Nagpur-440 010. ..... Appellants.
ig :: VERSUS ::
1. Smt. Anusayabai wd/o Vaikuntha
Wadbudhe, Aged about 31 years,
Occupation : Household.
2. Ku. Rani d/o Vakuntha Wadbudhe,
Aged about 7 years, Minor.
Through her next friend and mother
Guardian Smt. Anusayabai wd/o
Vaikuntha Wadbudhe -Respondent
No.1.
Respondent Nos.1 and 2
both resident of : Village and
Post Pipla (Kewalram),
Tahsil Narkhed, District Nagpur.
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3. Master Rajat s/o Vaikuntha Wadbudhe,
Aged about 6 years and 2 months, minor,
Through his next friend and mother Guardian
Smt Anusayabai wd/o.Vaikuntha
Wadbudhe - respondent No.1
R/o Village and Post : Pipla (Kewalram),
Tahsil Narkhed, District Nagpur.
4. Harishchandra s/o Chirkut Uikey,
Aged about 36 years,
Occupation Truck Driver,
C/o Shobha w/o Ashokrao Sawarkar,
R/o Main Road, Katol,
Taluka Katol, District Nagpur.
5. Smt. Shobha w/o Ashokrao Sawarkar,
Aged adult, Occupation Transport Business,
R/o Main Road, Katol,
Taluka Katol, District Nagpur.
6. Vikas alias Rakesh s/o Sonbaji Fuke,
Aged adult, Occupation Agriculturist,
R/o C/o Shri Madhukar Ghode,
Opposite Jain Mandir,
At & Post Katol, District Nagpur.
7. The Manager,
National Insurance Company Limited,
Division No.2,
Pal Commercial Complex, 5th Floor,
Ajni Square, Wardha Road,
Nagpur-440 015. ..... Respondents
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Shri S.N. Dhanagare, Counsel for the Appellant.
Shri V.R. Thote, Adv. h/f. Shri P.A. Shendre, Counsel
for Respondent Nos. 1 to 3.
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Date of reserving the Judgment : 11.6.2015.
Date of pronouncing the Judgment : 19.8.2015.
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CORAM : A.P.BHANGALE, J.
JUDGMENT :
1. This First Appeal is directed against the Judgment and Order dt.13.3.2003 passed by the learned Member, Motor Accident Claims Tribunal, Nagpur in Claim Petition No. 521 of 1997 whereby the Claim Petition under Section 166 of the Motor Vehicles Act, 1988 was partly allowed with proportionate costs. The learned Member, M.A.C.T. held the truck owner and truck insurer and the jeep owner and jeep insurer jointly and severally responsible to pay compensation in the sum of Rs.25,000/- with interest @ 9% per annum from 7.7.1997 till realization of payment. The said Judgment ::: Downloaded on - 19/08/2015 23:58:15 ::: 4 fa367.03.odt and Order is under challenge in this appeal by the appellant/Insurance Company.
2. It is the case of the appellant that there was a motor vehicle accident on 22-3-1997 at 5.00 p.m. at village Dongargaon, near Orange processing factory, within the limits of Katol Police Station when jeep bearing registration No.MH-31-H-1825 owned by Vikas Fuke and insured by the United India Insurance Company (hereinafter referred to as 'Jeep') collided with truck bearing registration No.MTG-2425 owned by Mrs.Shobha Sawarkar and insured by National Insurance Company (hereinafter referred to as 'Truck'). The jeep was driven by Narayan Ramrao Chaudhari (whose death Claim Petition No. 838 of 1997 was filed by his dependents Mother and Sisters). The Truck was driven by Harischandra Uike. The jeep and the truck driven rashly and negligently collided with each other. Ownership of the truck and jeep and insurance cover as on the date of the accident is not denied.
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3. In that accident stated as head on collision between the jeep and the truck, the inmates of the jeep and the truck were injured. Some of them succumbed to injuries. On 22.3.1997, the jeep left Katol for Sawargaon in which the claimant, her husband Vaikuntha, their minor son Guddu, daughter Vanita and daughter Rani were present. When the jeep was proceeding ahead, the truck came from front side. Both the drivers were driving their respective vehicles rashly and negligently. Both the vehicles collided against each other.
Both - the claimant and daughter Rani sustained minor injuries but their family members - Vaikuntha, 35 years old;
Guddu 5 years old and Vanita 4 years old succumbed to the injuries. A sum of Rs.1,00,000/- was claimed towards mental shock, agony, pain and sufferings underwent by the appellants herein and loss of consortium including the expenses for last rituals of the deceased. Insurer of the truck denied liability to pay compensation on the ground that the jeep used to carry 14 passengers beyond permit limits of 9+1 in it for reward or hire. The jeep owner, though served did not appear to contest the Claim Petition. The truck driver was ::: Downloaded on - 19/08/2015 23:58:15 ::: 6 fa367.03.odt not holding valid driving license as on the date of the accident, but it was renewed subsequently after few days.
Insurer of the Truck denied liability to pay compensation on this ground. The Tribunal found that there was rash and negligent driving of the truck and the jeep resulting in collision thereof. Based upon the evidence, all the respondents were held jointly and severally responsible to pay the compensation.
4. It is the case of the insurer that there was a breach of policy condition as there were 14 excessive passengers in the jeep. According to the appellant, both - the truck as well as the jeep collided due to contributory negligence of the drivers of both offending motor vehicles. Therefore, truck owner and insurer and jeep owner and insurer were equally liable to pay compensation. The motor vehicular accident occurred on 22.3.1997 at about 7.55 pm between commander jeep bearing registration No.MH-31/H/1825 and truck bearing registration No.MTG-2425. Both the offending motor vehicles ::: Downloaded on - 19/08/2015 23:58:15 ::: 7 fa367.03.odt were insured with the United India Insurance Company Limited.
5. Learned Counsel for the appellant submits that the drivers of both the vehicles were responsible as their contributory negligence resulted in the accident, whereby family of the claimants suffered effects of the accident and as a result of which, life of victim was cut short.
6. It is submitted by learned counsel for the insurer that the Insurance Company is not liable to compensate the claimants.
According to Mr.S.N.Dhanagare, learned Counsel for the appellant, liability of the Insurance Company was 'NIL' because excess passengers were travelling in the offending motor vehicle i.e. jeep.
7. On the other hand, learned Counsel for the claimants submits that the Tribunal should have taken into consideration the pleadings as well as the evidence led on record to arrive at just and proper compensation payable to ::: Downloaded on - 19/08/2015 23:58:15 ::: 8 fa367.03.odt the claimants. It is submitted by learned Counsel for the claimants that once it is proved that the accident had occurred arising out of motor vehicles, the Tribunal should prove the pleadings of the parties and legal evidence on record in its entirety to arrive at just and fair compensation.
8. According to the learned Counsel for the appellant, the liability of the Insurance Company is 'NIL' for breach of policy for exceeding the seats limits in the jeep. He submits that the Insurance Company was not liable. It is submitted that the Tribunal was bound to consider the pleadings and legal evidence on record and appreciate it before the Award is passed.
9. Learned Tribunal appears to have considered the evidence on record that the jeep left for Katol to Sawargaon in which the claimants were travelling. Both the truck and jeep were driven by respective drivers rashly and negligently and in a high speed resulting into fatal accident. The Tribunal held that the motor accident occurred due to the ::: Downloaded on - 19/08/2015 23:58:15 ::: 9 fa367.03.odt negligence of both the drivers of jeep and truck. The police papers were also produced in the form of F.I.R., Inquest Panchanama and Post Mortem report. Learned Member of the Tribunal considered the Spot Panchanama with map of the Scene and found that the accident had occurred in which both vehicles were dashed against each other due to rashness and negligence of drivers of jeep and truck. The truck insurer contended that, on the date of accident, the driver of the truck did not held valid driving licence.
10. Even assuming for the sake of argument that, according to the Insurance Company, there was breach of Insurance Contract by the owner of the offending motor vehicle, the rule is that the Insurer has liability to pay compensation first as awarded by the Tribunal and then, if it thinks fit, it may recover the amount so paid from the Insured, if according to the Insurer, the insured was liable to pay the amount. The Tribunal may, if necessary be moved for that purpose. The appeal is, thus, found without merits and it is dismissed accordingly. No order as to costs.
JUDGE jaiswal ::: Downloaded on - 19/08/2015 23:58:15 :::