Bombay High Court
Dilip Sopanrao Arjune vs Bajaj Allianz General Insurance ... on 1 April, 2016
Bench: P.R. Bora
1 FA nos.2902/15 & FA st.1745/2015
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO.2902 OF 2015
with
CA No.5413/2014
1. Dilip S/o Sopanrao Arjune,
Age: 43 years, Occu: Service
R/o Newasekar Nagar,
Mantha Road, Jalna,
Tq. & Dist. Jalna. ..APPELLANT
(Orig. Respondent No.1)
Versus
1. Bajaj Allianz General
Insurance Co. Ltd.,
Through its Branch Manager,
2nd Floor, Rajendra Chamber,
Adalat Road, Aurangabad. (Ori. Resp.2)
2. Meera W/o Raju Choudhary,
Age: 31 years, Occu.: Household,
3. Vishal S/o Raju Choudhary,
Age : 11 Years, Occu: Minor
4. Ganesh S/o Raju Choudhary,
Age: 08 years, Occu.: Minor,
No.3 and 4 are the Minors under
guardianship of their real mother
Meera W/o Raju Choudhary i.e
Respondent No.2.
5. Uttam S/o Gopinath Choudhary,
Age : 55 Years, Occu: Agriculture,
6. Sulabai W/o Uttam Choudhari,
Age: 50 years, Occu.: Agril.,
Resp.Nos. 2 to 6 are residents
of Village Keli Ghavan,
Tq. Badnapur, Dist. Jalna. (Ori. Claimants)
...
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2 FA nos.2902/15 & FA st.1745/2015
WITH
FIRST APPEAL STAMP NO.1745 OF 2015
with
CA NO./2015
1. Dilip S/o Sopanrao Arjune,
Age: 43 years, Occu: Service
R/o Newasekar Nagar,
Mantha Road, Jalna,
Tq. & Dist. Jalna. ..APPELLANT
(Orig. Respondent No.1)
Versus
1. Bajaj Allianz General
Insurance Co. Ltd.,
Through its Branch Manager,
2nd Floor, Rajendra Chamber,
Adalat Road, Aurangabad. (Ori. Resp.2)
2. Smt. Chagabai W/o Sandu Madan,
Age : 35 years, Occu.: Household
3. Pravin S/o Sandu Madan
Age : 15 years, Occu.: Minor,
4. Kartik S/o Sandu Madan,
Age: 15 years, Occu.:Minor
No.3 and 4 are the Minors
under guardianship of their
real mother Chagubai Sandu Madan
i.e. Respondent No.2
5. Nivrutti S/o Anna Madan
Age: 65 years, Occu: Agriculture,
6. Smt.Kaushalyabai W/o Nivrutti Madan
Age: 50 years, Occ: Agri.
(Ori. Claimants)
-----
Mr. Deshmukh Shambhuraje V, Adv.for Appellant;
Mr. SG Chapalgaonkar, Adv. For Resp.No.1;
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3 FA nos.2902/15 & FA st.1745/2015
Mr. GG Suryawanshi, Adv. For Resp.Nos. 2 to 6.
-----
CORAM : P.R.BORA, J.
DATE :
1 st
April,2016.
ORAL JUDGMENT:
1) Heard. Admit. By consent, taken up for
final disposal.
2) Both the appeals since are arising out
of one accident both are being heard
simultaneously and are being decided by this
common order.
3) One claim petition was filed by the
legal heirs of the deceased, who was riding the
motor-cycle; whereas the other claim petition was
filed by the legal heirs of the deceased/pillion
rider. Both the claim petitions were allowed by
the Tribunal and the owner and the insurance
company both were held jointly and severally
liable to pay the amount of compensation to the
respective claimants.
4 FA nos.2902/15 & FA st.1745/2015
4) The learned Counsel for the appellants
brought to my notice that against the Judgment
and order passed in MACP No.74/2011 and 75/2011,
the Insurance company had preferred the appeal
being First Appeal No.1921/2013 and the same has
been allowed by this Court. The learned Counsel
has placed on record the copy of the said
judgment. The learned Counsel brought to my
notice that in the decision of the aforesaid
appeal, this Court has recorded an unambiguous
finding that the claimants have failed in proving
the involvement of the vehicle in question in
occurrence of the alleged accident. The learned
Counsel submitted that, however, since the appeal
was filed by the Insurance company, the same was
allowed to the extent of exonerating the
insurance company from its liability.
5) The learned counsel further submitted
that though attempt was made by the present
appellant of filing civil application in the
5 FA nos.2902/15 & FA st.1745/2015
appeal filed by the insurance company praying the
Court to exonerate the owner also from the
liability to pay the compensation, the
application came to be rejected with liberty to
the appellant to file independent proceedings.
The learned Counsel submitted that in the
circumstances, the original owner has filed these
two appeals challenging the Awards passed by the
Tribunal in the respective Claim Petitions.
6) The learned Counsel submitted that in
view of the clear finding recorded by this Court
in FA No.1921/2013 that the vehicle bearing No.
MH-21-V-541 was not involved in the alleged
accident, the present appeals deserve to be
allowed.
7) The learned Counsel appearing for the
claimants submitted that from the record it
cannot be certainly said that a clear finding is
recorded as regards non-involvement of the
6 FA nos.2902/15 & FA st.1745/2015
vehicle in question. The learned Counsel
submitted that the Court has only indicated the
circumstance that involvement of the vehicle in
question is not proved.
8) However, I am not impressed with the
arguments so advanced by the learned Counsel. I
have carefully gone through the judgment
delivered by this Court in FA no. 1921/2013. In
clear terms, the Court has recorded a finding
that the claimants have failed to prove
involvement of the vehicle concerned in the
occurrence of the alleged accident. When the
involvment of the vehicle alleged to be owned by
the present appellants has not been proved by the
original claimants, no liability can be saddled
upon the present appellants of paying any
compensation to the original claimants, i.e.
Respondent Nos. 2 to 6 herein. The judgment and
Awards dated 4th May, 2013, passed in MACP
Nos.75/2011 and 74/2011 passed by the learned
Member, Motor Accident Claims Tribunal, Jalna,
7 FA nos.2902/15 & FA st.1745/2015
thus cannot be sustained and deserve to be
quashed and set aside. Hence, the following
order, -
ORDER
i) The judgments and Awards dated 4th May,
2013, passed in MACP Nos.75/2011 and 74/2011 by
the learned Member, Motor Accident Claims
Tribunal, Jalna, stand quashed and set aside;
ii) The amount, if any, deposited by the
present appellants be refunded to them;
iii) Pending Civil Applications, if any,
stand disposed of.
sd/-
(P.R.BORA)
JUDGE
bdv/
