Bombay High Court
The Br. Manager Thru. Nagpur ... vs Jaishri Wd/O Dilip Dhote And 4 Ors on 26 April, 2016
Bench: A.S. Chandurkar
fa143.07
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH
NAGPUR.
FIRST APPEAL NO. 143 OF 2007
The Branch Manager,
The United India Insurance
Company Limited, through
Nagpur Branch, Dharampeth
Extension, Shankar Nagar,
Nagpur. APPELLANT.
ig VERSUS
1] Jayshree wd/o Dilip Dhote,
aged 28 yrs. Occu. Household.
2] Madhukar Rajaram Dhote,
aged 53 yrs. Occu. Labour.
3] Prabhabai Madhukar Dhote,
aged 48 yrs. Occu. Household.
4] Tanuja d/o Dilip Dhote,
aged 4 ½ yrs. Occu. Nil.
Minor by GAL mother
Jayashree Dilip Dhote.
Respondent nos. 1 to 4 R/o
At post Isapur Khurd, Tahsil
Katol, Distt. Nagpur.
5] Ramesh Dhaneshwar
Nimbalkar, aged Major,
Occu. Owner, R/o Isapur (b),
Tahsil Katol, Distt. Nagpur. RESPONDENTS.
Shri S. N. Dhanagare, Advocate for the appellant.
None for the respondents.
fa143.07
CORAM: A. S. CHANDURKAR J.
Dated : APRIL 26, 2016.
ORAL JUDGMENT:
This appeal under Section 173 of the Motor Vehicles Act, 1988
(for short, the said Act) takes exception to the judgment of the Claims
Tribunal dated 30.11.2006 in proceedings under Section 163-A of the said
Act.
2] It is the case of the claimants that the motorcycle owned by
respondent no. 5 was being driven by one Dilip Dhote. The same met with
an accident on 19.11.2003 on account of a mechanical fault. Said Dilip could
not control the vehicle which dashed a bicycle after which Dilip fell down and
sustained fatal injuries. The claim was initially filed under Section 166 of the
said Act. However, after obtaining permission of the Claims Tribunal the
same was amended and converted into a proceeding under Section 163-A of
the said Act.
3] The appellant initially filed its written statement to the claim
under Section 166 of the said Act and denied its liability. However, after the
proceedings were converted into one under Section 163-A of the said Act a
separate written statement was not filed. The Claims Tribunal thereafter
granted compensation of an amount of Rs. 3,52,600/- in favour of the
claimants.
4] Shri S. N. Dhanagare, the learned counsel for the appellant
fa143.07
submitted that as the accident occurred when the vehicle was being driven by
the claimant on account of his own negligence, the claimants were not
entitled for compensation. He submitted that the grant of compensation was
contrary to the settled position of law and if the accident had occurred on
account of an act of the deceased himself, the claim could not be allowed
under Section 163-A of the said Act. In support of his submissions the
learned counsel placed reliance on the decision in Appaji (since deceased)
and another Vs. M. Krishna and another 2004 ACJ 1289, National
Insurance Company Ltd. Vs. Sinitha & Ors. AIR 2012 Supreme Court 797
and United India Insurance Co. Ltd. Vs. Sunanda and others 2007 ACJ
1715.
5] The respondents though were served have not contested the
proceedings. However, with the assistance of the learned counsel for the
appellant I have perused the records and I have considered the submissions
as urged.
6] The following point arises for consideration:
Whether any case is made out to interfere with
the award of the Claims Tribunal?
7] It is not in dispute that initially the proceedings were filed under
Section 166 of the said Act on 22.01.2004. The appellant filed its written
statement below Ex. 16 and opposed the claim. On 06.12.2005 the claimants
vide Ex. 21 sought permission to convert the proceedings to one under
Section 163-A of the said Act. By order dated 16.06.2006 this permission
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was granted and the proceedings were converted into one under Section 163-
A of the said Act. Thereafter, the proceedings were amended on the basis of
order dated 16.10.2006 on Ex. 33. After the proceedings were so converted,
no additional written statement was filed by the appellant though permission
was sought to contest the claim under Section 170 of the said Act and the
same was granted on 10.10.2006 as per Ex. 32. The claimant no.1 examined
herself below Ex. 123. She was cross examined by the counsel for the
appellant. The appellant did not lead any evidence.
9] From the aforesaid it is clear that after the proceedings were
converted into one under Section 163-A of the said Act there was no written
statement filed by the appellant. Similarly no evidence was led by the
appellant though it was granted permission to contest the claim. As a result
of aforesaid, the pleadings in the application after it was converted to one
under Section 163-A of the said Act have remained un-controverted. The
case of the claimants that on account of a mechanical fault in the motorcycle
said Dilip could not control the motorcycle resulting in an accident leading to
his death has remained uncontroverted. The cross examination of the
respondent no.1 is not sufficient to disprove the statements made by the
respondent no.1 in her claim affidavit. Thus in absence of a proper contest
on the part of the appellant the claim of the respondent cannot be defeated
merely on the contention that the claimants were not entitled for
compensation on account of the fault/negligence of Dilip.
10] While considering the challenge as raised by the appellant to the
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award of the Claims Tribunal it would be necessary to refer to the position of
law as laid down by the Hon'ble Supreme Court in Sinitha & Ors. (supra).
In paragraph 17 of aforesaid decision it has been held thus:
"In a claim raised under Section 163A of the
Act, the claimants have neither to plead nor to
establish negligence. We have also held, that
negligence (as also, "wrongful act" and
"default") can be established by the owner or
the insurance company (as the case may be) to
defeat a claim under Section 163A of the Act. It
was, therefore, imperative for the petitioner-
Insurance Company to have pleaded negligence,
and to have established the same through
cogent evidence."
From the aforesaid it is clear that it is for the Insurance Company to plead
and prove the aspect of negligence if it desires to defeat the claim made
under Section 163A of the said Act.
11] Considering the aforesaid legal position as well as the facts on
record the stand of the appellant that it was not liable to pay compensation
under Section 163-A of the said Act cannot be accepted. The fact that the
accident occurred due to use of a motorcycle is not in dispute.
In Appaji (supra) the proceedings under Section 163-A of the
said Act were contested by the Insurance Company by filing its written
statement. On that count the ratio of aforesaid decision as well as the
judgment in United India Insurance Company Limited (supra) cannot be made
applicable to the facts of the present case. The Claims Tribunal in that
background was justified in relying upon the judgment of the Division Bench
of this Court in Latabai Bhagwan Kakade and others Vs. Mohammad
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Ismail Mohd. Saab Bhagwan and others 2002 ACJ 407. Thus in absence of
any proper contest by the appellant before the Claims Tribunal, the claim as
made cannot be defeated. The point as framed is answered by holding that
there is no case made out to interfere with the award passed by the Claims
Tribunal.
Hence, for the aforesaid reasons, the award passed by the Claims
Tribunal dated 30.11.2006 stands confirmed. The First Appeal stands
dismissed with no order as to costs.
The respondents are at liberty to withdraw the amount of
compensation deposited by the appellant.
JUDGE
svk
