Prabhakar vs Gajanan
2013 Latest Caselaw 309 Bom

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        IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                      NAGPUR BENCH, NAGPUR




                                              
                   FIRST APPEAL NO.269 OF 2008




                                  
     Prabhakar s/o. Motiram Ganbhoj,
                   
     Aged Major, Occ. Agrilst., 
     r/o. Akolkhed, Tq. Akot,
     District Akola (M.S.).      ..........      APPELLANT
                  
           // VERSUS //
      


     1. Gajanan s/o. Pralhad Sapkal,
   



         Aged about 56 yrs., Occ.Agrilst/
         Labour, r/o. c/o. Anil Pachpor's
         house, Gajanan Nagar, Akola,
         Tq. and Distt. Akola (M.S.).





     2. Purushottam s/o. Gangadhar Harne,
         Aged about 34 years, Occ. Driver,
         r/o. Akolkhed. Tq. Akot, Distt.
         Akola (M.S.).





     3. The Branch Manager,
         State Bank of India, 
         Agricultural Development Bank,
         Branch Akot, Tq. Akot, District
         Akola (M.S.).                   ..........      RESPONDENTS




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        Mr.T.A.Ansari, Adv. h/f. Mr.H.D.Dangre, Adv.  for the 




                                                                         
                             Appellant.
            Mr.M.V.Mohokar, Adv. for respondent no.1.
              Mr.S.N.Kumar, Adv. for respondent no.3.




                                                 
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                               CORAM     :  A.P.BHANGALE,  J.

                               DATE         :  10.12.2013.
      




                                   
     ORAL JUDGMENT      :


     1.
                    

This appeal is filed against the Judgment and Award,

dt.25.10.2004 passed by the learned Member, Motor

Accident Claims Tribunal, Akola in M.A.C.P. No.119 of

1999 whereby compensation was awarded in the sum of

Rs.2,00,000/- including no fault liability amount with

interest @ 6 % p.a. from the date of petition till realisation

of the amount.

2. The facts, briefly stated, are as under :

That the claimant Gajanan Pralhad Sapkal, aged

about 28 years, labourer by occupation went to attend a

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fair at village Dhargad on 10.8.1998. He decided to return

home at Akot. a tractor bearing registration no.MH-30 B-

5864 along with trolley bearing registration no.MH-30 E-

2886 was standing there. The driver of the tractor was

calling the persons for traveling upto Akot by the said

tractor-trolley. The claimant also decided to travel by the

said tractor-trolley. About 50 persons were sitting in the

trolley and the driver namely Purshottam was driving the

tractor rashly and negligently and in a high speed taking

sharp turns. When the tractor-trolley reached near Khatkali

on Bridge no.CH-56865, the tractor took a sharp turn. In

the result, the hook attached to the trolley was broken and

the trolley turned turtle. The claimant was thrown away

from the trolley. His left leg was fractured and he became

permanently disabled. He was admitted in the hospital at

Akola and then shifted to the private hospital of Dr.Ranjit

Patil, where he received medical treatment. He is now

unable to do any hard work. He was earning Rs.5,000/-

p.m. from the agricultural work. Now he is unable to do

said work and has incured expenses of Rs.50,000/- for his

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medical treatment. Thus, the claimant had restricted

compensation to the sum of Rs.2,00,000/- only. The owner

of the offending motor vehicle i.e. tractor-trolley had

denied that the driver was negligent in driving the tractor-

trolley and also denied having called passengers in the

trolley. Further, according to the owner of the offending

motor vehicle, the State Bank of India had financed the

owner to purchase the tractor-trolley and it was

hypothecated with the State Bank of India and therefore,

the owner denied liability to pay compensation as,

according to him, the State Bank of India was liable to

renew the insurance policy. But it was not done. Under

these circumstances, the Tribunal found from the evidence

led that, on 10.8.1998, at about 6.00 p.m., the claimant

was returning home by tractor-trolley and became victim of

the accident as a result of rash and negligent driving of the

tractor-trolley being registration number referred above and

the claimant was injured in the accident resulting in 22 %

permanent disability.

5 fa269.08.odt

3. It appears that, before the Tribunal, the evidence was

led regarding medical treatment received by the claimant at

the hospital of Dr. Ranjit Patil. The driver was prosecuted

on the basis of police papers such as F.I.R. (Exh.29), spot

panchanama (Exh.30) etc.. The Injury Certificate (Exh.32)

indicated that the claimant was suffering fracture of femur

bone of the left leg and the Medical Officer assessed as 22%

permanent disability for the claimant. Having examined the

evidence, the learned Member of the Tribunal considered

the age of the claimant as 28 years at the time of accident

and calculated the amount of compensation on the basis of

multiplier of 18 applicable to the claimant as also treated

his income as 5000/- p.m. from agricultural business as

well as labour work and arrived at the conclusion that the

claimant was entitled for compensation in the sum of

Rs.4,37,680/-. However, since the claimant had restricted

the amount of compensation to Rs.2,00,000/- only, the

Award was passed in the sum of Rs.2,00,000/- exclusive of

no fault liability amount and 6 % p.a. simple interest from

the date of petition till realisation.

6 fa269.08.odt

4. Learned Counsel for the appellant submitted that the

Branch Manager, State Bank of India having branch at

Akot, Tq. Akot, District Akola was negligent in renewal of

insurance policy. Therefore, the State Bank of India, with

whom the offending motor vehicle was hypothecated, is

also liable jointly and severally along with owner of the

offending vehicle to compensate the injured person. This

submission cannot be accepted as u/s. 165 of the Motor

Vehicles Act compensation is payable in respect of the

accident involving body injury to the person arising out of

use of the offending motor vehicle. The amount of

compensation is payable to the third party. It is duty of the

owner of the offending motor vehicle to have the motor

vehicle insured periodically and the owner, as such, cannot

have any pretext to avoid liability as argued in the present

case on the ground that it was obligation of the State Bank

of India, with whom the vehicle was hypothecated, to get

the insurance contract renewed from the Insurance

Company. Admittedly, the appellant was allowed to ply the

offending motor vehicle notwithstanding the fact of

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hypothecation and owner of the offending motor vehicle

incurred third party risk by plying vehicle on road and by

engaging the driver to ply the offending motor vehicle,

Thus, if bodily injury is caused to any of the passenger of

the tractor and trolley used as if it is a public service vehicle

by the owner and driver thereof, the owner of the offending

motor vehicle, in the facts and circumstances, cannot be

allowed to hide behind the State Bank, with whom the

motor vehicle was allegedly hypothecated. Even assuming

for the sake of argument that the owner of the offending

motor vehicle has any cause of action against the State

Bank of India, with whom he had allegedly hypothecated

the offending motor vehicle, the owner would have remedy

to recover any amount paid to the third party as

compensation ordered by the Motor Accident Claims

Tribunal if owner can prove negligence of the State Bank of

India in not getting renewal of the Insurance cover for the

tractor-trolley. Such remedy to sue State Bank, if so

advised, is open for the owner. However, considering the

Award of compensation, which was restricted by the

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claimant to the claim of Rs.2,00,000/- only, even when the

Tribunal could have awarded more compensation. I think

no interference is warranted in exercise of the appellate

jurisdiction to disturb the impugned Judgment and Award.

Hence, the appeal is dismissed.

JUDGE

jaiswal