United India Insurance Company ... vs Nilkanth Ramroaji Fuke And 4 Ors
2015 Latest Caselaw 143 Bom

                               1                                fa386.03.odt




                                                                       
                                               
       IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                      NAGPUR BENCH, NAGPUR




                                              
                   FIRST APPEAL NO.386 OF 2003
                                 with




                                  
                    Cross-objection No.19 of 2011
                   
     United India Insurance Company Limited,
     Through its Divisional Manager,
                  
     having its Legal Cell Office,
     Bank of India Building, 
     Station Road, Nagpur.                              ..... Appellant
      


              ::  VERSUS  ::
   



     1. Nilkanth s/o Ramraoji Fuke,
        Aged about 51 years,





        Occupation Agriculturist.

     2. Smt. Gitabai Nilkanthrao Fuke,
        Aged about 42 years,
        Occupation Household.





        Both residents of Deshmukh (Galli)
        Layout, Near Power House,
        Katol, Taluka Katol,
        District Nagpur.




                                               ::: Downloaded on - 19/08/2015 23:58:16 :::
                                 2                                 fa386.03.odt


     3. Smt. Shobha Ashokrao Sawarkar,




                                                                         
        Aged about Major,
        Occupation Truck Owner,




                                                 
        R/o Main Road, Opposite Police Station,
        Katol, District Nagpur.

     4.National Insurance Company Limited,




                                                
        through its Divisional Manager,
        having its office at D.No.II,
        Pal Commercial Complex, Panchavi Manzil,
        Ajni Chowk, Nagpur.




                                   
     5.Vikas s/o Sonbaji Fuke,
                   
        Aged about Major, Occupation Jeep 
        Owner. R/o. Katol.                              ..... Respondents
                  
     ==========================================================
          Shri S.N. Dhanagare, Counsel for the Appellant.
          Shri Asghar Hussain, Counsel for Respondent nos.1 and 2.
     ==========================================================
      


                                             ********
   



              Date of reserving the Judgment         : 11.6.2015.
              Date of pronouncing the Judgment    : 19.8.2015.
                                             ********





                               CORAM     :  A.P.BHANGALE,  J.


     JUDGMENT      :

1. This First Appeal is directed against the Judgment and

Order dt.13.3.2003 passed by the learned Member, Motor

3 fa386.03.odt

Accident Claims Tribunal, Nagpur in Claim Petition No. 647

of 1997 whereby the Claim Petition under Section 166 of the

Motor Vehicles Act, 1988 was partly allowed with

proportionate costs. The learned Member, M.A.C.T. held the

truck owner and truck insurer and the jeep owner and jeep

insurer jointly and severally responsible to pay compensation

in the sum of Rs.50,000/- with interest @ 9% per annum

from 7.7.1997 till realization of payment. The said Judgment

and Order is under challenge in this appeal by the

appellant/Insurance Company.

2. It is the case of the appellant that there was a motor

vehicle accident on 22-3-1997 at 5.00 p.m. at village

Dongargaon, near Orange processing factory, within the limits

of Katol Police Station when jeep bearing registration

No.MH-31-H-1825 owned by Vikas Fuke and insured by the

United India Insurance Company (hereinafter referred to as

'Jeep') collided with truck bearing registration No.MTG-2425

owned by Mrs.Shobha Sawarkar and insured by National

Insurance Company (hereinafter referred to as 'Truck'). The

4 fa386.03.odt

jeep was driven by Narayan Ramrao Chaudhari (whose death

Claim Petition No. 838 of 1997 was filed by his dependents

Mother and Sisters). The Truck was driven by Harischandra

Uike. The jeep and the truck driven rashly and negligently

collided with each other. Ownership of the truck and jeep and

insurance cover as on the date of the accident is not denied.

3. In that accident stated as head on collision between the

jeep and the truck, the inmates of the jeep and the truck were

injured. Some of them succumbed to injuries. On the fateful

day, claimant's eldest daughter Shilpa, middle son Nitin and

youngest son Sachin were travelling from Katol to Sawargaon

in the offending jeep. The jeep was in a high speed. The

offending truck came from front side in a high speed. Both

the vehicles collided against each other near juice factory.

Claimant's youngest son Sachin died in that accident. He was

school going 11 years old. Compensation for his death to the

tune of Rs.3,00,000/- was claimed. Insurer of the truck

denied liability to pay compensation on the ground that the

jeep was used to carry 14 passengers beyond permit limits of

5 fa386.03.odt

9+1 in it for reward or hire. The jeep owner, though served

did not appear to contest the Claim Petition. The truck driver

was not holding valid driving license as on the date of the

accident, but it was renewed subsequently after few days.

Insurer of the Truck denied liability to pay compensation on

this ground. The Tribunal found that there was rash and

negligent driving of the truck and the jeep resulting in

collision thereof. Based upon the evidence, all the

respondents were held jointly and severally responsible to pay

the compensation.

4. It is the case of the insurer that there was a breach of

policy condition as there were 14 excessive passengers in the

jeep. According to the appellant, both - the truck as well as

the jeep collided due to contributory negligence of the drivers

of both offending motor vehicles. Therefore, truck owner and

insurer and jeep owner and insurer were equally liable to pay

compensation. The motor vehicular accident occurred on

22.3.1997 at about 7.55 pm between commander jeep

bearing registration No.MH-31/H/1825 and truck bearing

6 fa386.03.odt

registration No.MTG-2425. Both the offending motor vehicles

were insured with the United India Insurance Company

Limited.

5. Learned Counsel for the appellant submits that the

drivers of both the vehicles were responsible as their

contributory negligence resulted in the accident, whereby

family of the claimants suffered effects of the accident and as

a result of which, life of victim was cut short.

6. It is submitted by learned counsel for the insurer that the

Insurance Company is not liable to compensate the claimants.

According to Mr.S.N.Dhanagare, learned Counsel for the

appellant, liability of the Insurance Company was 'NIL'

because excess passengers were travelling in the offending

motor vehicle i.e. jeep.

7. On the other hand, learned Counsel for the claimants

submits that the Tribunal should have taken into

consideration the pleadings as well as the evidence led on

7 fa386.03.odt

record to arrive at just and proper compensation payable to

the claimants. It is submitted by learned Counsel for the

claimants that once it is proved that the accident had

occurred arising out of motor vehicles, the Tribunal should

prove the pleadings of the parties and legal evidence on

record in its entirety to arrive at just and fair compensation.

8. According to the learned Counsel for the appellant, the

liability of the Insurance Company is 'NIL' for breach of policy

for exceeding the seats limits in the jeep. He submits that the

Insurance Company was not liable. It is submitted that the

Tribunal was bound to consider the pleadings and legal

evidence on record and appreciate it before the Award is

passed.

9. Learned Tribunal appears to have considered the

evidence on record that the jeep left for Katol to Sawargaon

in which the claimants were travelling. Both the truck and

jeep were driven by respective drivers rashly and negligently

and in a high speed resulting into fatal accident. The

8 fa386.03.odt

Tribunal held that the motor accident occurred due to the

negligence of both the drivers of jeep and truck. The police

papers were also produced in the form of F.I.R., Inquest

Panchanama and Post Mortem report. Learned Member of

the Tribunal considered the Spot Panchanama with map of

the Scene and found that the accident had occurred in which

both vehicles were dashed against each other due to rashness

and negligence of drivers of jeep and truck. The truck insurer

contended that, on the date of accident, the driver of the

truck did not held valid driving licence.

10. Even assuming for the sake of argument that, according

to the Insurance Company, there was breach of Insurance

Contract by the owner of the offending motor vehicle, the rule

is that the Insurer has liability to pay compensation first as

awarded by the Tribunal and then, if it thinks fit, it may

recover the amount so paid from the Insured, if according to

the Insurer, the insured was liable to pay the amount. The

Tribunal may, if necessary be moved for that purpose. The

joint and several liability is the rule in such cases and the

9 fa386.03.odt

exception pleaded and established to the satisfaction of the

Tribunal can be considered by the Tribunal while executing

the Award fully and finally and if necessary, even after the

payment made to the claimants, when insurer disputed or

disowned it's liability and sought to recover the amounts paid

to the claimants towards compensation; from the

owner/driver of the offending motor vehicle or vehicles, the

insurer who pays is at liberty to recover accordingly by

moving the Tribunal concerned.

11. Cross-objection is raised in this appeal regarding

quantum of compensation awarded on the ground that is on

lower side. Deceased victim was nearly 11 years old body - a

student studying in 4th Std. His loss to his parents for

untimely demise of their son was irreparable. He was

studying in 4th Std. and would have supported the parents in

their old age contributing atleast Rs.1,500/- p.m. =

Rs.18,000/- per year. Notwithstanding the consideration,

imponderables or probability of untimely death of victim in

future, old age of parents or their untimely death in near

10 fa386.03.odt

future etc. we may reasonably consider average age of parents

around 50 years and less and may award compensation on

the basis of atleast "10" as reasonable multiplier to enhance

the compensation to Rs.1,80,000/- adding Rs.2,000/- as

funeral expenses and Rs.20,000/- as loss of love and affection

etc. total making it Rs.2,02,000/- inclusive of no fault liability

along with interest at the rate of Rs. 9 % p.a. On the amount

from the date of Claim Petition till realisation thereof. Cross-

Objection is allowed accordingly in the above terms. The

appeal is found without merits and it is dismissed accordingly.

No order as to costs.

JUDGE

jaiswal