Bombay High Court
The New India Assurance Co Ltd vs Prakash Narayan Gommade & Ors on 4 April, 2016
Bench: V.K. Jadhav
1 FA 178.2002.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 178 OF 2002
WITH
CA/3500/2002 IN FA/178/2002
WITH
CA/11759/2004 IN FA/178/2002
The New India Assurance Company Ltd.,
having its registered and head office at
New India Assurance Building, 87,
M.G. Marg, Fort, Mumbai and Divisional
Office at Aurangabad and branch office
at Chandranagar Latur by its authorized
Representative Shri Namdeo Gangaram Mali,
age 49 years, Occ. Service, R/o Aurangabad.
..Appellant..
VERSUS
1. Prakash Narayan Gomande,
age 30 years, Occ. Busines,
R/o Main Road, At. Ausa,
Post Ausa, Dist. Latur.
2. Kalimuddin s/o Shamshddin Shaikh,
age 29 yrs, Occ. Business, r/o
Kat Ghar Galli, At Ausa, Post Ausa,
Dist. Latur.
3. The Branch Manager, Oriental Insurance
Co. Ltd., Opposite Bus Stand, Latur.
At Post Tq. Dist. Latur.
4. Jamalsing s/o Lachmansingh, age major,
Occ. Business, r/o Narayannagar, Ghatkopar,
Mumbai
(owner of Tanker bearing No.MCY 3650)
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2 FA 178.2002.odt
5. Jagdeo s/o Kalappa Araji,
age 43 years, Occ. Driver,
R/o Navshil-Naka, Belapur Road,
At Post Thane, Dist. Thane. ...Respondents..
...
Advocate for Appellant : Mr D S Kulkarni h/f S L
Kulkarni
Advocate for Respondents : Mr R B Deshmukh For R/1,
Mr S M Godsay For R.No.3
...
CORAM : V.K. JADHAV, J.
Dated: April 04, 2016
ig ...
ORAL JUDGMENT :-
1. Being aggrieved by the common Judgment and
Award passed by the Member, Motor Accident Claims
Tribunal, Latur dated 26.11.2001 in MACP No.99 of
1998 alongwith connected petitions arises out of one
and the same accident, the Respondent-Insurer of the
vehicle Tempo Trax involved in the accident, preferred
this appeal.
2. Brief facts, giving rise to the present appeal, are as
follows :-
a] On 24.10.1997, all the claimants were travelling by
Tempo Trax bearing registration No.MH-24/A-7329 from
Ausa to Pune. On the way, when the said jeep reached
3 FA 178.2002.odt
within the limits of Bhigwan, Tq. Indapur, Dist Pune, a
tanker bearing registration No.MCY-3650 came from
opposite direction and gave dash to the tempo trax. In
consequence of which, the driver of the tempo trax died
on the spot, whereas, other claimants travelling in the
same vehicle sustained injuries. The claimant in Claim
petition No.100/1998 has become permanently disabled
to the extent of 15% due to the injuries sustained by
him in the accident. He claimed total amount of
Rs.2,05,000/- under the different heads, but restricted
his claim to the tune of Rs.2.00 lacs.
B] The appellant-insurer has resisted the said claim
by filing written statement. According to respondent
no.5, the driver of the tanker was driving the said
vehicle in a rash and negligent manner and that, the
tempo trax driver was not at fault. The appellant-
insurer has also raised the ground that the claimants
herein have claimed exorbitant amount of
compensation. The appellant-insurer in the alternate
has also raised the ground that the driver of the tempo
trax has contributed the negligence to the extent of
4 FA 178.2002.odt
20%. The learned Member of the Motor Accident Claims
Tribunal, Latur, by its impugned judgment and Award
dated 26.11.2001 partly allowed the claim petition and
thereby directed respondents No.1 and 2 on one hand
and respondents No.3 to 5 on the other hand to pay
jointly and severally compensation of Rs.1,35,230/-
alongwith proportionate costs and interest @ 9% p.a. to
the claimant to the extent of 50 : 50% each. Being
aggrieved by the same, the appellant-insurer has
preferred this appeal.
3. The learned counsel for the appellant submits
that, the driver of the tanker had driven the vehicle in
excessive speed and in rash and negligent manner and
is alone responsible for the accident. Learned counsel
submits that, the Tribunal has erroneously arrived at
conclusion that it is a case of equal negligence of both
drivers and accordingly directed the respondents to pay
compensation to the claimants. Learned counsel
submits that, considering the road situation, and
contents of panchnama, at the most driver of the tempo
trax can be held responsible to the extent of 20%.
5 FA 178.2002.odt
4. Learned counsel for the respondents/claimants
submits that, after the accident crime was registered
against both the drivers of the vehicles involved in the
accident. Learned counsel submits that contents of the
spot panchnama speaks that, there was head on
collision between the two vehicles. Learned counsel
submits that, the Tribunal has therefore rightly come to
the conclusion that both the vehicles have equally
contributed the negligence and accordingly directed the
owners thereof to pay compensation.
5. I have also heard learned counsel for respondent
no.3-the Insurer of the vehicle tanker involved in the
accident.
6. It appears from the evidence that both drivers of
the vehicles were negligent in driving their respective
vehicles. Though, the claimants in their respective
claim petitions deposed about the rash and negligent
driving of the driver of the tanker, still it is not possible
to find out the rash and negligent driving of a particular
vehicle. On perusal of spot panchnama, it appears that
6 FA 178.2002.odt
the panchas did not notice any tyre marks of either of
the vehicles on the road. It also appears from the
damage caused to the vehicles that there was head on
collision between the two vehicles. In the circumstances,
I do not find any fault in the finding recorded by the
learned Member of the Tribunal that both the drivers
are equally responsible for the accident. So far as
quantum is concerned, it appears that, the learned
Member of the Tribunal has awarded just and
reasonable compensation.
7. In view of this, I do not find any merit in this
appeal. Hence, following order is passed.
O R D E R
I. Appeal is hereby dismissed.
II. In the circumstances, there shall be no order
as to costs.
III. First appeal is accordingly disposed of.
IV. Pending Civil Applications also stand
disposed of.
sd/-
( V.K. JADHAV, J. )
aaa/- ....
