The Oriental Insurance Company ... vs Tularam
2013 Latest Caselaw 262 Bom

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      IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                    NAGPUR BENCH, NAGPUR.




                                                                      
                    First Appeal No.574 of 2013




                                              
    The Oriental Insurance Company Limited,
    'Saubhagya', 2nd Floor, Badnera Road,
    Amravati, through its Branch Manager,
    Wardha Branch, Wardha.                        ..... Appellant.




                                             
                            :: versus ::

    1. Tularam S/o Tukaram Gaikwad,
    Aged about 43 years,




                                  
    Occupation Private Service,
    R/o Jaurwada (Khurd), Post Kakda,
                     
    Tahsil Karanja, District Wardha.

    2. Pradeep S/o Vasantrao Wanjari,
                    
    Aged about 27 years,
    Occupation Business,
    R/o Bhishnoor, Tahsil Narkher,
    District Nagpur.
      

    3. Sheshrao S/o Govindrao Hirudkar,
    Aged Adult, Occupation Business,
   



    R/o Bhishnoor, Tahsil Narkher,
    District Nagpur.

    4. Sham S/o Bhaiyyaji Deotale,
    Aged Adult, Occupation Business,





    R/o Kodamendhi, Tahsil Maunda,
    District Nagpur.                          ..... Respondents.

    =============================================

Shri A.W.Paunikar, Counsel for the Appellant. Shri B.B.Meshram, Ccounsel for R-1.

Shri H Bobade, Counsel for R-2 to 4.

=============================================

CORAM : A. P. BHANGALE, J DATE : 03rd DECEMBER, 2013

.....2/-

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    ORAL JUDGMENT.




                                                  

1. The appellant is aggrieved by judgment and award dated

22.8.2012, passed by the learned Member, Motor Accident

Claims Tribunal, Wardha, under Section 166 of the Motor

Vehicles Act, 1988 (for short, "of the Act"), in M.A.C.P. No.

179 of 2008, whereby the learned Tribunal partly allowed the

petition holding that respondent Nos.2 and 3 along with

appellant - The Oriental Insurance Company Limited, are

liable to pay compensation of Rs.96,000/- with interest at the

rate of six percent per annum from the date of the petition till

realization payable to injured Tularam Gaikwad.

2. The facts in brief, are thus :

that on 25.5.2008, at about 7:00 p.m., claimant-Tularam

was driving his motorcycle namely Hero Honda CD-Delux,

bearing Registration No.MH-32/F-0843 with one Ravindra

Patil, sitting as pillion rider, from Kharsoli to his village

Jaurwada (Khurd). When claimant's motorcycle had reached

at Mouza Bela Fata, offending motor vehicle i.e. tractor and

trolly bearing Registration No.MH-31/BB-4515 gave dash to

the motorcycle driven by the claimant, as tractor and trolly

.....3/-

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was driven rashly and negligently. In the result, the claimant

and pillion rider who were on motorcycle fell down and the

claimant received injuries to his leg and right hand including

multiple fractures.

3. The claimant was taken to "Suretech Hospital and

Research Centre, Nagpur" and was admitted as an indoor

patient till 7.6.2008. According to the claimant, he was

required to undergo operation and surgery for his leg and

hand and spent an amount of Rs.1,75,000/-.

4. The claim was opposed by appellant - The Oriental

Insurance Company Limited mainly on the ground of Section

165 of the Act that when offending motor vehicle i.e. tractor

and trolly bearing Registration No.MH-31/BB-4515, which was

compulsorily insurable, was in fact not insured by the owner

of the offending motor vehicle.

Under these circumstances, even assuming that the

appellant was insurer for Hero Honda motorcycle bearing

Registration No.MH-32/F-0843 driven by injured claimant, the

claim by injured claimant for compensation against his own

insurer was not maintainable because the claimant cannot be

described as "third party" within the meaning of Section 165

.....4/-

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of the Act and, therefore, the award could not have been

directed against the present appellant who was insurer of the

motorcycle, which was dashed and damaged due to the

accident as a result of rash and negligent driving of the

tractor and trolly.

The learned counsel appearing for the appellant,

therefore, submitted that the driver and owner of the

offending motor vehicle i.e. tractor and trolly who are

impleaded as respondent Nos.2 and 3 in this appeal were

answerable to satisfy the award to the exclusion of the

appellant because the appellant insurer had no concern with

the insurance of the offending motor vehicle which is

described as tractor and trolly. Thus, it is submitted that the

appeal deserves to be allowed by necessary modification of

the award impugned which held the appellant responsible;

contrary to law contained in Section 165 of the Act. No

submissions are advanced regarding the quantum of

compensation awarded on behalf of the appellant.

5. The learned counsel for the claimant on the other hand

contended that the claimant had undergone surgery due to

fractures suffered in his leg and hand and had to spend lot of

amount. Therefore, he supported the impugned award. He

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has, however, not raised any cross objection in this appeal

regarding the quantum of the amount of compensation.

6. The learned Counsel appearing for respondent Nos.2 and

3 who are driver and owner respectively of the tractor and

trolly (offending motor vehicle) submitted that respondent

No.4 - Sham Bhaiyyaji Deotale who was previous owner of

the offending motor vehicle can also be held responsible

jointly and severally along with respondent Nos.2 and 3. This

submission prima faice cannot be accepted, because on the

date of incident respondent Nos.2 and 3 were the driver and

owner in respect of the tractor and trolly and merely because

respondent No.4 was previous owner, he could not have

incurred any liability for compensation jointly and severally

along with respondent Nos.2 and 3.

7. Having considered the submissions advanced at bar and

perusal of the relevant legal provision contained in Section

165 of the Act, the impugned award against the appellant

passed by the learned Member, Motor Accident Claims

Tribunal, Wardha, is not sustainable. It needs to be modified

by excluding the appellant from any liability to pay the

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compensation for the accident occurred in question. Hence,

order :-

ORDER

The appeal is, therefore, partly allowed, thus :

Respondent Nos.2 and 3 shall be jointly and severally

responsible to satisfy the award in the sum of Rs.96,000/-

along with interest at the rate of 6% from the date of petition

till realization.

The award passed as against the appellant is, however,

set aside.

Respondent Nos.2 and 3 shall also pay costs of the

appeal to the claimant (respondent No.1).

The appeal is disposed of accordingly.

The amount including mandatory deposit, deposited by

the appellant insurer be refunded back to the appellant along

with interest accrued thereon, if any.

JUDGE

!! BRW !!

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