The Manager,United India ... vs Smt.Anusayabai Wd/O Vaikuntha ...
2015 Latest Caselaw 149 Bom

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     IN THE HIGH COURT OF JUDICATURE AT BOMBAY,




                                                                   
                  NAGPUR BENCH, NAGPUR




                                           
                FIRST APPEAL NO.367 OF 2003




                                          
     The Manager,
     United India Insurance Company




                              
     Limited, Nagpur-440 010.                 .....  Appellants.
                 ig ::  VERSUS  ::
               
     1. Smt. Anusayabai wd/o Vaikuntha 
         Wadbudhe, Aged about 31 years,
      

          Occupation : Household.
   



     2. Ku. Rani d/o Vakuntha Wadbudhe,
         Aged about 7 years, Minor.

         Through her next friend and mother





         Guardian Smt. Anusayabai wd/o 
         Vaikuntha Wadbudhe -Respondent 
         No.1.





         Respondent Nos.1 and 2 
         both resident of : Village and 
         Post Pipla (Kewalram),
         Tahsil Narkhed, District Nagpur.




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     3. Master Rajat s/o Vaikuntha Wadbudhe,
         Aged about 6 years and 2 months, minor,




                                                                      
         Through his next friend and mother Guardian 
         Smt Anusayabai wd/o.Vaikuntha 




                                              
         Wadbudhe - respondent No.1
         R/o Village and Post : Pipla (Kewalram),
         Tahsil Narkhed, District Nagpur.




                                             
     4. Harishchandra s/o Chirkut Uikey,
         Aged about 36 years,
         Occupation Truck Driver,
         C/o Shobha w/o Ashokrao Sawarkar,




                                
         R/o Main Road, Katol,
         Taluka Katol, District Nagpur.
                
     5. Smt. Shobha w/o Ashokrao Sawarkar,
         Aged adult, Occupation Transport Business,
               
         R/o Main Road, Katol,
         Taluka Katol, District Nagpur.

     6. Vikas alias Rakesh s/o Sonbaji Fuke,
      


         Aged adult, Occupation Agriculturist,
   



         R/o C/o Shri Madhukar Ghode,
         Opposite Jain Mandir,
         At & Post Katol, District Nagpur.





     7. The Manager,
         National Insurance Company Limited,
         Division No.2,
         Pal Commercial Complex, 5th Floor,
         Ajni Square, Wardha Road,





         Nagpur-440 015.                               ..... Respondents




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          ========================================================
             Shri S.N. Dhanagare, Counsel for the Appellant.




                                                                            
             Shri V.R. Thote, Adv. h/f. Shri P.A. Shendre, Counsel 
             for Respondent Nos. 1 to 3.
          ========================================================




                                                    
                                             ********
              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

Accident Claims Tribunal, Nagpur in Claim Petition No. 521

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.25,000/- with interest @ 9% per annum

from 7.7.1997 till realization of payment. The said Judgment

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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

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.

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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 22.3.1997,

the jeep left Katol for Sawargaon in which the claimant, her

husband Vaikuntha, their minor son Guddu, daughter Vanita

and daughter Rani were present. When the jeep was

proceeding ahead, the truck came from front side. Both the

drivers were driving their respective vehicles rashly and

negligently. Both the vehicles collided against each other.

Both - the claimant and daughter Rani sustained minor

injuries but their family members - Vaikuntha, 35 years old;

Guddu 5 years old and Vanita 4 years old succumbed to the

injuries. A sum of Rs.1,00,000/- was claimed towards mental

shock, agony, pain and sufferings underwent by the

appellants herein and loss of consortium including the

expenses for last rituals of the deceased. Insurer of the truck

denied liability to pay compensation on the ground that the

jeep used to carry 14 passengers beyond permit limits of 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

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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

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

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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

record to arrive at just and proper compensation payable to

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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

Tribunal held that the motor accident occurred due to the

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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

appeal is, thus, found without merits and it is dismissed

accordingly. No order as to costs.

JUDGE jaiswal