FA-1353-2010+.odt
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 1353 OF 2010
New India Assurance Company Ltd.,
Aurangabad, Through its Divisional Manager
Adalat Road, Aurangabad ... Appellant
Versus
1. Lahu s/o Govindrao Itkar (Died)
through L.Rs.
1-A) Nilesh Lahu Itkar
1-B) Umesh Lahu Itkar
2. Nilesh Lahu Itkar
Age: 16 years, Occu: Education,
R/o Sonari, Taluka Paranda,
District Osmanabad
3. Umesh Lahu Itkar
Age: 15 years, Occu: Education,
R/o As above.
4. Navnath Mahadeo Tambave
Age: Major, Occu. Agri.,
R/o. Chandaj, Taluka Madha,
District Solapur
(Owner of Tractor No.MH-13-A-9366 &
Trailer No.MH-13-J-0540)
5. The Oriental Insurance Company Ltd., Akluj,
Through: Branch Manager,
The Oriental Insurance Company Ltd.
Near S. T. Stand, SBI Building, Osmanabad
(Insurer of Tractor & Trailer)
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6. Manik Dinkar Salunke
Age: Major, Occu: Agri.,
R/o Chandaj, Taluka Madha,
District Solapur
Owner of Trailer No.MH-45-A-6690) ... Respondents
WITH
FIRST APPEAL NO. 1355 OF 2010
New India Assurance Company Ltd.,
Aurangabad, Through its Divisional Manager
Adalat Road, Aurangabad ... Appellant
Versus
1. Tulsabai Mohan Pawar
Age: 40 years, Occu. Household,
R/o. Soari, Taluka Paranda,
District Osmanabad
2. Uttreshwar Mohan Pawar
Age: 23 years, Occu. Labourer
R/o As above.
3. Kiran Mohan Pawar,
Age: 21 years, Occu: Labour
R/o As above
4. Nirmala d/o Mohan Pawar
Age: 17 years, Occu: Labourer
Minor U/guardianship of her mother
Tulsabai Mohan Pawar (respondent No.1)
5. Navnath Mahadeo Tambave
Age: Major, Occu. Agri.,
R/o. Chandaj, Taluka Madha,
District Solapur
(Owner of Tractor No.MH-13-A-9366 &
Trailer No.MH-13-J-0540)
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6. The Oriental Insurance Company Ltd., Akluj,
Through: Branch Manager,
The Oriental Insurance Company Ltd.
Near S. T. Stand, SBI Building, Osmanabad
(Insurer of Tractor & Trailer)
7. Manik Dinkar Salunke
Age: Major, Occu: Agri.,
R/o Chandaj, Taluka Madha,
District Solapur
Owner of Trailer No.MH-45-A-6690) ... Respondents
WITH
FIRST APPEAL NO. 1356 OF 2010
New India Assurance Company Ltd.,
Aurangabad, Through its Divisional Manager
Adalat Road, Aurangabad ... Appellant
Versus
1. Lahu s/o Govindrao Itkar (Died)
through L.Rs.
1-A) Nilesh Lahu Itkar
Age: As on today 19 years,
Occu: Education,
R/o Sonari, Taluka Paranda,
District Osmanabad
1-B) Umesh Lahu Itkar
Age: As on today 18 years,
Occu: Education,
R/o As above.
2. Navnath Mahadeo Tambave
Age: Major, Occu. Agri.,
R/o. Chandaj, Taluka Madha,
District Solapur
(Owner of Tractor No.MH-13-A-9366 &
Trailer No.MH-13-J-0540)
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3. The Oriental Insurance Company Ltd., Akluj,
Through: Branch Manager,
The Oriental Insurance Company Ltd.
Near S. T. Stand, SBI Building, Osmanabad
(Insurer of Tractor & Trailer)
4. Manik Dinkar Salunke
Age: Major, Occu: Agri.,
R/o Chandaj, Taluka Madha,
District Solapur
Owner of Trailer No.MH-45-A-6690) ... Respondents
WITH
FIRST APPEAL NO. 1379 OF 2010
New India Assurance Company Ltd.,
Aurangabad, Through its Divisional Manager
Adalat Road, Aurangabad ... Appellant
Versus
1. Machindra Vithal Sangade
Age: 48 years, Occu: Labourer,
R/o. Sonari, Taluka Paranda,
District Osmanabad
2. Bhairu Machindra Sangade
Age: 25 years, Occu: Private Service,
R/o As above.
3. Navnath Machindra Sangade
Age: 23 years, Occu: Education
R/o As above.
4. Navnath Mahadeo Tambave
Age: Major, Occu. Agri.,
R/o. Chandaj, Taluka Madha,
District Solapur
(Owner of Tractor No.MH-13-A-9366 &
Trailer No.MH-13-J-0540)
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5. The Oriental Insurance Company Ltd., Akluj,
Through: Branch Manager,
The Oriental Insurance Company Ltd.
Near S. T. Stand, SBI Building, Osmanabad
(Insurer of Tractor & Trailer)
6. Manik Dinkar Salunke
Age: Major, Occu: Agri.,
R/o Chandaj, Taluka Madha,
District Solapur
Owner of Trailer No.MH-45-A-6690) ... Respondents
WITH
FIRST APPEAL NO. 1380 OF 2010
New India Assurance Company Ltd.,
Aurangabad, Through its Divisional Manager
Adalat Road, Aurangabad ... Appellant
Versus
1. Shrirang Laxman Deokar
Age: 68 years, Occu: Labourer
R/o Sonari, Taluka Paranda,
District Osmanabad
2. Dnyaneshwar Shrirang Deokar
Age: 41 years, Occu: Labourer,
R/o As above
3. Anna Shrirang Deokar
Age: 43 years, Occu: Labourerm
R/o As above
4. Navnath Mahadeo Tambave
Age: Major, Occu. Agri.,
R/o. Chandaj, Taluka Madha,
District Solapur
(Owner of Tractor No.MH-13-A-9366 &
Trailer No.MH-13-J-0540)
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5. The Oriental Insurance Company Ltd., Akluj,
Through: Branch Manager,
The Oriental Insurance Company Ltd.
Near S. T. Stand, SBI Building, Osmanabad
(Insurer of Tractor & Trailer)
6. Manik Dinkar Salunke
Age: Major, Occu: Agri.,
R/o Chandaj, Taluka Madha,
District Solapur
Owner of Trailer No.MH-45-A-6690) ... Respondents
WITH
FIRST APPEAL NO. 1382 OF 2010
New India Assurance Company Ltd.,
Aurangabad, Through its Divisional Manager
Adalat Road, Aurangabad ... Appellant
Versus
1. Shivaji Govindrao Itkar
Age: 40 years, Occu: Labourer
R/o Sonari, Taluka Paranda,
District Osmanabad
2. Dnyaneshwar Shivaji Itkar
Age: 17 years, Occu: Labourer,
R/o As above
3. Sushila Shivaji Itkar
Age: 16 years, Occu: Labourer,
R/o As above
4. Kundlik Shivaji Itkar
Age: 14 years, Occu: Labourer,
R/o As above
5. Navnath Mahadeo Tambave
Age: Major, Occu. Agri.,
R/o. Chandaj, Taluka Madha,
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District Solapur
(Owner of Tractor No.MH-13-A-9366 &
Trailer No.MH-13-J-0540)
6. The Oriental Insurance Company Ltd., Akluj,
Through: Branch Manager,
The Oriental Insurance Company Ltd.
Near S. T. Stand, SBI Building, Osmanabad
(Insurer of Tractor & Trailer)
7. Manik Dinkar Salunke
Age: Major, Occu: Agri.,
R/o Chandaj, Taluka Madha,
District Solapur
Owner of Trailer No.MH-45-A-6690) ... Respondents
....
Mr. S. G. Chapalgaonkar, Advocate for appellant
Shri Dhananjay P. Deshpande, Advocate for respondent No.5 in
FA/1379/2010, 1380/2010 and 1353/2010, for respondent No.6 in
FA/1355/2010, 1382/2010 and for respondent No.3 in
FA/1356/2010
Shri G. T. Talekar, Advocate for respondent Nos. 1 to 3 in
FA/1379/2010, 1380/2010, for respondent Nos. 1 to 4 in
FA/1355/2010, 1382/2010 and for respondent Nos. 2 and 3 in
FA/1353/2010, for respondent No.1-A and 1-B in FA/1356/2010
....
CORAM : R. G. AVACHAT, J.
RESERVED ON : 14th OCTOBER, 2021 PRONOUNCED ON : 28th OCTOBER, 2021 J U D G M E N T :-
. These appeals are being decided by this common judgment and order since common questions of fact and law arise therein. Moreover, all these appeals arise from judgments and 7 of 14 ::: Uploaded on - 28/10/2021 ::: Downloaded on - 29/10/2021 08:36:04 ::: (( 8 )) FA-1353-2010+ awards passed in Motor Accident Claim Petitions arising out of one and the same accident.
2. Facts giving rise to these appeals are as under:-
The First Information Report Exh.47 was lodged by an Assistant Police Inspector after having inquired into the report of the accident. A goods carriage tempo bearing No.MH-25-B-6047 was on its way from Indapur to Tembhurni. Number of persons were travelling in the said tempo after having attended marriage ceremony at Baramati. It was around 9.30 p.m. of 22.12.2006, a tractor (No.MH-45-A-5989) towing two trollies filled with sand was oncoming/approaching from opposite side. The tractor was keeping its left. The tempo too was proceeding keeping left side of the road. The tractor (MH-13-A-9366) attached with two unnumbered trollies was in the process of overtaking the tractor - MH-45-A-5989. In the process of overtaking, the first trolley attached to the tractor No.MH-13-A-9366 dashed against the tempo. The impact of the accident was so severe that six of the persons in the tempo died as a result of injuries suffered therein. Over 25 persons suffered multiple injuries and disability, as well. About 25 petitions came to be filed for compensation. The tractor (MH-13-A-9366) and the first trolley 8 of 14 ::: Uploaded on - 28/10/2021 ::: Downloaded on - 29/10/2021 08:36:04 ::: (( 9 )) FA-1353-2010+ attached thereto belonged to respondent - Navnath Mahadeo Tambave, herein. The said tractor and trolley had insurance cover granted by respondent No.5 - The Oriental Insurance Company Limited, while the second/last trolley attached to the said tractor belonged to respondent No.6. It was insured with the appellant - New India Assurance Company Limited.
3. The Tribunal allowed the claim petitions holding both the owners of the tractor and trollies attached thereto and their respective insurance companies to be jointly and severally liable to pay the amount of compensation. It appears that the respondent - The Oriental Insurance Company Limited paid/deposited 50% of the amount under the impugned awards. New India Assurance Company Limited preferred to file the present appeals.
4. Heard.
Learned Advocate for the appellant - Insurance Company would submit that the details of registration of the second trolley attached to the offending tractor have not been given in the FIR and panchanama, as well. As such, involvement of the said trolley has not been made out. The inspection report of the said trolley indicates that it was not impacted upon. Collision was 9 of 14 ::: Uploaded on - 28/10/2021 ::: Downloaded on - 29/10/2021 08:36:04 ::: (( 10 )) FA-1353-2010+ between tempo and the first trolley. As such, the trolley insured with the appellant - Insurance Company was no way involved in the accident. The appellant - Insurance Company has therefore no liability. The learned Advocate in the alternative urged for apportionment of the liability inter-se, the offending tractor and the trollies attached thereto. According to him, the trolley/trailer is not a motor vehicle itself. It needs to be propelled by some other vehicle, like tractor. The learned Advocate, therefore, urged for allowing the appeals.
5. The learned Advocate for the respondent - Insurance Company would, on the other hand, submit that the offending tractor attached with two trollies constituted one vehicle. There could not be apportionment of inter-se liability. Learned Advocate relied on the judgment of the Apex Court in the case of Khenyei vs New India Assurance Company Limited and others - (2015) 9 SCC
273.
6. The Tribunal relied on the evidence of one Ravikiran Lokhande. Ravikiran was an eye witness. He was in the driver's cabin of the ill-fated tempo when it met with the accident. He gave the details as to how the accident took place. With a view to avoid 10 of 14 ::: Uploaded on - 28/10/2021 ::: Downloaded on - 29/10/2021 08:36:04 ::: (( 11 )) FA-1353-2010+ repetition, the same is not adverted to. Suffice it to say that the accident took place as has been stated/described in para No.2 herein above. Although, the FIR and the panchanama did not contain registration details of the second trolley attached to the offending tractor, it appears that it's identification had not been disputed by its owner and the appellant - Insurance Company, as well, before the Tribunal.
7. In view of this Court, the tractor attached with two trollies/trailers constitute one vehicle. The author of the accident is one and the same person i.e. the driver of the tractor. For a case of contributory or composite negligence, there has to be involvement of at least more than one person (human being), so as to attribute them with breach of duty to take care.
In case of New India Assurance Company Limited vs Triveni Bai and Ors - MANU/MP/0681/2007, it has been observed thus:-
18. "..... Even though, the tractor and trolley are insured separately and are owned by two different persons but the fact remains that tractor and trolley were being used for transporting agriculture produce to the mandi. Both the owners of the tractor and trolley would be deemed to have permitted use of the same on the date of the accident. The tractor and trolley cannot be treated as two different and separate vehicles. The tractor and trolley 11 of 14 ::: Uploaded on - 28/10/2021 ::: Downloaded on - 29/10/2021 08:36:04 ::: (( 12 )) FA-1353-2010+ together constitute a goods vehicle and merely because they are separately registered and insured, it cannot be construed that they are two separate vehicles. Once the accident had taken place and the vehicle involved is the tractor and trolley then the assumption is that the goods vehicle involved in the accident is the tractor-cum-trolley, i.e., both have to be taken together as one and for the purpose of accident they cannot be treated to be two separate vehicles."
8. The appellant - Insurance Company therefore cannot escape of its liability against the claimants.
9. Learned Advocate for the appellant - Insurance Company urged for apportionment of inter-se liability. The submission of learned Advocate for the respondent - Insurance Company that the tractor attached with two trollies is one vehicle and no inter-se liability could therefore be apportioned does not stand to reason.
In the case in hand, it was a tractor attached with two trollies which has been held to be an offending vehicle. The tractor and one of the trollies belonged to Navnath Mahadeo Tambave, while the other trolley was owned by Manik Dinkar Salunke. The tractor had an insurance cover. Both the trollies were insured with two different companies, the appellant and the respondent - Insurance Company. In case of joint and several liability, the inter-se 12 of 14 ::: Uploaded on - 28/10/2021 ::: Downloaded on - 29/10/2021 08:36:04 ::: (( 13 )) FA-1353-2010+ liability shall be equal in proportion (Principle of contribution). Had the tractor and both the trollies belonged to three different persons with an insurance cover granted to each of them by separate insurance companies, the inter-se liability for contribution would have been 1/3rd. Here, it is a case of tractor attached with two trollies involved in the accident. The owner of each of it, would therefore be equally liable to contribute. As such, each of the owner thereof would be required to contribute inter-se 1/3rd of the amount required to be paid under the impugned award. When the tractor and one of the trollies belonged to one person, his liability to contribute would be 2/3rd. When the tractor had an insurance cover, the appellant - Insurance Company cannot escape from a liability to bear responsibility to indemnify what would be required to be paid by the owner of the tractor.
10. As such, the liability of appellant - Insurance Company (as insurer of the tractor and one of the trollies) inter-se would be 2/3rd of the impugned award and nothing more. It, however, cannot escape its liability to pay half of the amount under the impugned award to the claimants since the respondent - Insurance Company has satisfied the award to the extent of 50% thereof.
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11. For the reasons given herein above, the appeals stand disposed of with aforesaid findings.
[ R. G. AVACHAT, J. ] SMS 14 of 14 ::: Uploaded on - 28/10/2021 ::: Downloaded on - 29/10/2021 08:36:04 :::