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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL No.533 OF 2005
National Insurance Co. Ltd.,
Amravati Branch, Ajni Chowk,
Amravati, through The Divisional,
Manager, Nagpur Divisional Office II,
Paul Complex, Ajni Square, Nagpur. : APPELLANT
...VERSUS...
1. Pritesh Bhupendrakumar Patel,
Aged 19 years, at present student,
R/o. Ganesh Vihar No.2, Badnera Road,
Amravati, Tah. & Distt Amravati.
2. Babanrao Namdeorao Zatale,
Occupation : Truck owner,
R/o. Ghat Ladki, Tah. Chandur Bazar,
District Amravati.
3. Dhanraj Kisanrao Jumale,
Aged 28 years,
Occupation : Truck Driver,
R/o. Khed , Tah. Morshi, Distt. Amravati.
4. Ratnakar Ramesh Potdar,
Aged 17 years,
Minor by his guardian father
Ramesh D. Potdar, R/o. Potdar Garden,
Narhari Nagar, Tah. & Distt. Amravati.
5. The Oriental Insurance Company Limited,
by its Branch Manager, in front of
Rajapeth Police Station, Amravati.
6. The Regional Transport Officer,
through R.T.O., Amravati. : RESPONDENTS
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Shri D.N. Kukday, Advocate for the Appellant.
Shri Dr. Anjan De, Advocate for the Respondent No.1.
Shri Ashish W. Punikar, Advocate for the Respondent No.5.
None for the Respondent Nos.2,3,4 and 6.
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CORAM : S.B. SHUKRE, J.
th DATE : 7 AUGUST, 2017.
ORAL JUDGMENT :
1. This is an appeal preferred against the judgment and order dated 13th April, 2005, rendered by the Motor Accident Claims Tribunal, Amravati, in Motor Accident Claim Petition No.47/1996.
2. The respondent No.1 is the original claimant, while the respondent Nos.2,3,4,5 and 6 are the original respondent Nos.1 to 5 and the appellant is the original respondent No.6. The accident occurred on 25th August, 1995 at an intersection of two roads, one Maltekdi to Chaparasipura road and other Circuit House to Badnera road. At the time of accident, the respondent No.1 riding pillion a two wheeler bearing registration No.MH-27-H-665 which was driven by the respondent No.4, as a result of dash given to the two wheeler by a truck bearing registration No.MWY- 6337, came under the wheels of the truck. In this accident, the respondent No.1 lost his left heel pad of the left leg and sustained disability permanently to the extent of 20%. The respondent No.1 was required to incur expenses for his medical ::: Uploaded on - 09/08/2017 ::: Downloaded on - 10/08/2017 02:21:38 ::: J-fa533.05.odt 3/6 treatment and also for travelling to Mumbai from Amravati. The scooter was insured with the respondent No.5, while the truck was insured with the appellant. The truck was owned by the respondent No.2. The respondent No.1, in order to claim compensation for the injury and disability permanently suffered by him, filed an application under Section 166 of the Motor Vehicles Act, which on merits of the case came to be partly allowed by the Tribunal. The Tribunal granted compensation of Rs.2,82,760/- inclusive of the compensation on no fault principle along with interest at the rate of 9% p.a. by its award passed on 13.4.2005. Not being satisfied with the same, the appellant, the insurer of the truck, involved in the accident is before this Court in the present appeal.
3. I have heard Shri D.N. Kukday, learned counsel for the appellant, Shei Anjan Dey learned counsel for the respondent No.1- original claimant and Shri Ashish W. Paunikar, learned counsel for resonant No.5 insurer of the scooter involved in the accident. Nobody has appeared on behalf of the respondent Nos.2,3,4 and 6.
4. I have also gone through the record of the case including the impugned judgment and order.
5. Now, following points arise for my determination are :
(i) Whether any liability could have been fastened upon the appellant ?
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(ii) Whether the compensation awarded by the
Tribunal is just and proper ?
6. Although it has been contended on behalf of the appellant that on the date of accident, the insurance policy, vide Exh.-33, issued in respect of truck involved in the accident had not been transferred in the name of respondent No.2 and thus there was no privity of contract between the respondent No.2 and the insurance company i.e. the appellant thereby exonerating the appellant of its liability under the contract of insurance, I am of the view that this defence in the facts and circumstances of this case, would not be available to the appellant. It is an admitted fact that the respondent No.1, original claimant, was a third party to the contract to the insurance and therefore, the insurance company was statutorily liable to make good the loss occurred to such a third party under the terms of its contract of insurance. This is also the view taken by the Tribunal, and I do not find any illegality or perversity in the same. The appellant, therefore, cannot escape its liability from payment of compensation, if it is due to be payable on other counts. The first point is answered accordingly.
7. About the quantum of compensation, I find that there is no substance in whatever has been argued in this behalf on behalf of appellant. It has been tried to be submitted that the compensation awarded by the Tribunal is much on the higher side, especially when ::: Uploaded on - 09/08/2017 ::: Downloaded on - 10/08/2017 02:21:38 ::: J-fa533.05.odt 5/6 none of the doctors from the medical board which issued the handicap certificate was examined by the respondent No.1. On going through the impugned judgment, I find that the Tribunal has not granted any compensation by taking into consideration the fact that the respondent No.1 suffered permanent disability to the extent of 20%. What has been granted by the Tribunal is a compensation of Rs.2,00,000/- on account of pain and sufferings, mental shock and agony, experienced by the respondent No.1 when he underwent the treatment for the grievous injury that he sustained in the accident. There is, therefore, no substance in the said argument of the appellant.
8. There is no dispute about the fact that the grievous injury suffered by the respondent No.1 was in the nature of loss of heel pad of his left leg and there is also no dispute about the fact that for treatment of this injury, the respondent No.1 was required to be shifted to hospital in Mumbai and remain hospitalized there for almost a week. The Tribunal, considering all these facts, assessed the compensation on the count of pain and sufferings, mental shock and agony to be at Rs.2,00,000/- and rightly so. There has also been available on record evidence showing incurring of specific expenditure by the respondent No.1 on account of medical treatment, travelling charges and lodging and boarding expenses, which were of Rs.57,760/- Rs.15,000/- and Rs.10,000/- respectively. Thus, the total compensation that has been ::: Uploaded on - 09/08/2017 ::: Downloaded on - 10/08/2017 02:21:38 ::: J-fa533.05.odt 6/6 awarded by the Tribunal to the respondent No.1 is of Rs.2,82,760/-. I do not see any illegality or perversity in such a determination arrived at by the Tribunal. I also do not see any illegality in applying the interest at the rate of 9% p.a. from the date of petition till realization of the amount. The second point is answered accordingly. There is no merit in the present appeal and it deserves to be dismissed.
9. The appeal stands dismissed.
10. The parties to bear their own costs.
JUDGE okMksns ::: Uploaded on - 09/08/2017 ::: Downloaded on - 10/08/2017 02:21:38 :::