Bombay High Court
First Appeal No.861/2012 vs Unknown on 20 November, 2013
Bench: A.P. Bhangale
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
FIRST APPEAL NO.861/2012
AND
FIRST APPEAL NO.859/2012
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FIRST APPEAL NO.861/2012
APPELLANT: National Insurance Company Limited,
Branch office at Chandrapur, through its
Regional Office, Mangalam Arcade,
ig 2nd Floor, Dharampeth Extension,
through its Authorised Officer.
...Versus...
RESPONDENTS : 1. Udhao s/o Narayan Butle,
aged about 46 years.
2. Suresh s/o Udhao Butle,
aged about 19 years, Minor.
3. Anandrao s/o Udhao Butle,
aged about 16 years, Minor.
Respondent no.3 is the minor through
his natural guardian Respondent no.1.
All are residents of Wakdi, Tahsil
Wakdi, District Adilabad (A.P.).
4. Bireshchandra s/o Chamanlalji Jain,
aged about adult, R/o Civil Lines,
Chandrapur, Tahsil and District
Chandrapur.
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Shri Ajay Somani, Adv. for appellant
Shri J.M. Gandhi, Adv. for R - 4
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FIRST APPEAL NO.859/2012
APPELLANT: National Insurance Company Limited,
Branch office at Chandrapur, through its
Regional Office, Mangalam Arcade,
2nd Floor, Dharampeth Extension,
through its Authorised Officer.
...Versus...
RESPONDENTS : 1. Shrawan s/o Narayan Butle,
aged about 56 years.
ig 2. Mahendra s/o Shrawan Butle,
aged about 13 years, Minor.
Respondent no.2 is the minor through
his natural guardian Respondent no.1.
All are residents of Wakdi, Tahsil
Wakdi, District Adilabad (A.P.).
3. Bireshchandra s/o Chamanlalji Jain,
aged about adult, R/o Civil Lines,
Chandrapur, Tahsil and District
Chandrapur.
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Shri Ajay Somani, Adv. for appellant
Shri J.M. Gandhi, Adv. for R - 3
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CORAM : A.P. BHANGALE, J.
DATE : 20.11.2013
ORAL JUDGMENT
1. Heard.
2. First Appeal No.859/2012 arose out of the judgment and
award dated 28.2.2011 passed in Motor Accident Claim Petition
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No.64/2006, whereby the learned Member of the Motor Accident Claims
Tribunal, Chandrapur allowed the application under Section 140 of the
Motor Vehicles Act and awarded a sum of Rs.50,000/- along with simple
interest @ Rs. 7% per annum from the date of application till its
realization.
3. First Appeal No.861/2012 arose out of the judgment and
award dated 28.2.2011 passed in Motor Accident Claim Petition
No.65/2006, whereby the learned Member of the Motor Accident Claims
Tribunal, Chandrapur allowed the application under Section 140 of the
Motor Vehicles Act and awarded a sum of Rs.50,000/- along with simple
interest @ Rs. 7% per annum from the date of application till its
realization.
4. It is not in dispute that both the awards under Section 140
of the Motor Vehicles Act arose out of the same incident of accident. In the
case registered as MACP No.64/2006, victim Bayabai w/o Shrawan Butle
a labourer, aged about 40 years, while travelling by truck bearing
No. MH-34/A-6890 on 20.12.2005 met with an accident due to rash and
negligent driving of the offending vehicle. There is no dispute about the
ownership of the offending motor vehicle as also the same was insured
with the appellant. The contention that the victim was not authorized to
travel in the truck (offending motor vehicle) as a passenger, can be
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considered when the main petition under Section 166 of the Motor
Vehicles Act is decided on merits on the basis of the evidence. At the
interim stage, when the order under Section 140 of the Motor Vehicles Act
was passed, it is the liability of the insurer to pay compensation during the
pendency of the main petition, without any fault on the part of the insurer
or driver of the vehicle because of which the accident occurred.
5. In the case which is registered as MACP No.65/2006, victim
Lilabai w/o Udhao Butle, aged about 35 years, was also a labourer, who
died in the accident, caused by the offending motor vehicle bearing
No. MH-34/A-6890. It appears from the impugned judgment and award
that the truck was insured with the appellant under the insurance policy
on the date of accident and because of the use of the offending motor
vehicle, the accident had occurred.
6. Under these circumstances, the impugned judgments and
awards passed under Section 140 of the Motor Vehicles Act cannot be
blamed, when the motor accident had admittedly occurred due to the use
of the motor vehicle, which was covered under the insurance policy on
the date of incident. The insurer, therefore, cannot escape from its liability
under Section 140 of the Motor Vehicles Act. It is open for the insurer to
contest the main petition under Section 166 of the Motor Vehicles Act on
merits.
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7. Hence, both the first appeals are dismissed with no order as
to costs.
8. The Member of the Motor Accident Claims Tribunal,
Chandrapur shall endeavour to dispose of the main petition as early as
possible.
9. The amount deposited, if any, in this Court be transmitted to
the Tribunal for disbursement thereof to the claimants.
JUDGE
Wadkar
