Bombay High Court
United India Insurance Co Ltd Br ... vs Smt Jijabai Suklal Patil And Ors on 27 April, 2016
Bench: V.K. Jadhav
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 2507 OF 2010
United India Insurance Co. Ltd;
Branch Manager, Jalgaon Branch,
Through it's Divisional Manager,
Jalgaon Divisional Office II, 28,
Hareshwar Nagar, Ring Road,
At and District Jalgaon-425002. ... Appellant
(Ori.Opp. No. 5)
1.
Versus
Smt. Sumanbai Dhanraj Patil
Age : Major, Occ : Household,
2. Shri Bapu Dhanraj Patil,
Age : 17 years, Occ : Education,
3. Kum. Bharati Dhanraj Patil
Age : 15 years, Occ : Education,
Res. No. 2 and 3 being minor
through their mother Res. No.1.
Res. No. 1 to 3 r/o Shirsoli Pra. Bo.
Taluka and District Jalgaon.
4. Shri Gopal Bhagwan Dhangar
Age : Major, Occ : Service (Driver),
5. Shri Uttam Tulshiram Bari
Age : Major, Occ : Business (Owner)
6. Shri Sharad Shambhu Dhangar
Age : Major, Occ : Service (Driver)
7. Ratan Raghunath Bari
Age : Major, Occ : Business (Owner)
Respondent Nos. 4 to 7
r/o Shirsoli Pra. Bo.
Taluka and District Jalgaon. ... Respondents
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WITH
FIRST APPEAL NO. 2778 OF 2010
United India Insurance Co. Ltd;
Branch Manager, Jalgaon Branch,
Through it's Divisional Manager,
Jalgaon Divisional Office II, 28,
Hareshwar Nagar, Ring Road,
At and District Jalgaon-425002. ... Appellant
(Ori.Opp. No. 5)
Versus
1. Smt. Jijabai Suklal Patil
Age : 48 years, Occ : Household
2. Ravindra Suklal Patil
Age : years, Occ : Education
3. Sunil Suklal Patil
Age : years, Occ : Education
4. Ushabai Ganesh Patil
Age : Major, Occ : Education
Res. No. 2 to 4 being minor
through their mother Res. No.1.
Res. No. 1 to 4 r/o Shirsoli Pra. Bo.,
Taluka and District Jalgaon.
5. Shri Gopal Bhagwan Dhangar
Age : Major, Occ : Service (Driver),
6. Shri Uttam Tulshiram Bari
Age : Major, Occ : Business (Owner)
7. Shri Sharad Shambhu Dhangar
Age : Major, Occ : Service (Driver)
8. Ratan Raghunath Bari
Age : Major, Occ : Business (Owner)
Respondent Nos. 5 to 8
r/o Shirsoli Pra. Bo.
Taluka and District Jalgaon. ... Respondents
.....
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Advocate for the Appellant : Mr. A. B. Gatne
Advocate for the Respondent Nos. 1 to 3 in FA No. 2507 of 2010 and for
respondent Nos. 1 to 4 in FA No. 2778 of 2010 : Mr. A. I. Deshmukh
Advocate for the Respondent Nos. 5 & 7 in FA No. 2507 of 2010 and for
respondent Nos. 6 & 8 in FA No. 2778 of 2010 : Mr. V. Y. Patil
.....
CORAM : V. K. JADHAV, J.
DATED : 27th APRIL, 2016
ORAL JUDGMENT:-
1. Heard learned counsel for the respective parties.
2. Both these appeals arise out of one and the same accident,
hence, can be decided by this common judgment.
3. The appellant-insurer, by way of these appeals, is challenging
the orders dated 28.06.2010 passed below Exh.6 with Exh.21 in
M.A.C.P. No. 409 of 2008 and below Exh.6 with Exh.22 in M.A.C.P.
No. 408 of 2008 respectively, by learned Member, Motor Accident
Claims Tribunal, Jalgaon.
4. Brief facts, giving rise to the present appeals, are as follows:-
a) The accident had taken place on 27.3.2008. Deceased
Suklal and Dhanraj were travelling in a matador bearing
registration No. MH-18-A-7358 by Dharangaon Erandol
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road. After attending one ceremony, they were coming
back to village Shirsoli by the said road. On way, at about
5.00 p.m. while returning to village Shirsoli, said matador
bearing registration No. MH-18-A-7358 dashed against
another matador bearing registration No. MH-18-B-7094.
In consequence of which, deceased Suklal and Dhanraj
both had sustained grievous injuries. They were
immediately shifted to hospital where they succumbed to
the injuries. Thus, their legal representatives preferred two
separate claim petitions before Motor Accident Claims
Tribunal, Jalgaon. Legal representatives of deceased
Dhanraj preferred M.A.C.P. No. 409 of 2008, whereas legal
representatives of deceased Suklal preferred M.A.C.P. No.
408 of 2008. Pending the main claim petitions, the
claimants had filed application Exh.6 separately in the
respective claim petitions for interim relief under No Fault
Liability. Learned Member of M.A.C.T. Jalgaon, by its
impugned orders, as aforesaid, allowed applications Exh.6
in both the claim petitions and thereby directed
respondents to pay jointly and severally an amount of
Rs.50,000/- to the respective claimants within a period of
four weeks, failing which, they shall be liable to pay
interest at the rate of 9% per annum. So far as applications
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Exh.21 and Exh.22 in respective claim petitions, filed for
deletion by the present appellant-insurer is concerned,
those applications came to be rejected by the said common
orders.
b) Being aggrieved by the said orders, the respondent-insurer
has preferred these two separate appeals.
5.
Learned counsel for the appellant-insurer submits that prima
facie, no case is made out against the appellant-insurer to make it
liable to pay compensation even under No Fault Liability. As per
police papers, some villagers from village Shirsoli had gone to attend
one marriage ceremony at some another village and for that purpose,
they were travelling in two matadors as described above, which are
admittedly goods carriage vehicles. Even though both the deceased
persons were travelling in matador bearing registration No. MH-18-A-
7358 and another matador bearing registration No. MH-18-B-7094
was proceeding ahead of it, the accident had taken place due to fault
of drive of matador bearing registration No. MH-18-A-7358 alone and
the facts emerging from police papers unequivocally indicates that
the driver of matador bearing registration No. MH-18-B-7094 was not
at fault. Learned counsel submits that even after accident had
occurred, crime was registered against driver of vehicle bearing
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registration No. MH-18-A-7358 alone, and after due investigation,
charge sheet came to be submitted against him only. Learned
counsel further submits that the vehicle matador bearing registration
No. MH-18-B-7094 is insured with appellant-insurer and the
appellant-insurer is unnecessarily saddled with the liability to pay
compensation. Learned counsel submits that the provisions of
Section 140 of Motor Vehicles Act, 1988 does not contemplate that
an insurer company shall also be liable to deposit the amount while it
has no obligation whatsoever to do so in terms of Section 147(2) of
the said Act. Learned counsel in the alternate submits that if this
court comes to the conclusion to confirm the orders passed by the
Tribunal, in that event, respondents may be directed to furnish an
undertaking before the Tribunal to refund the amount paid by
appellant-insurer to the claimants in case the appellant-insurer is
exonerated from liability to pay the compensation. Learned counsel
also submits that in the alternative, this court may observe that the
Tribunal may take an appropriate decision in this regard at the time
of final adjudication of the claim petitions under fault liability.
6. Learned counsel for the appellant-insurer, in order to
substantiate his submissions, placed reliance on the decisions in
following cases:
I) Yallwwa (Smt.) and others vs. National Insurance Co.
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Ltd. and another, reported in (2007) 6 SCC 657,
II) National Insurance Co. Ltd. vs. Deorao Bhayyaji
Patne and Ors., reported in 2003 (1) ALL MR 99,
III) New India Assurance Co. Ltd. Pune vs. Smt.
Savitribai Tukaram Londhe and Others, reported in
1997 (1) Mh.L.J. 315 and
IV) New India Assurance Co. Ltd. vs. Asha Rani and
others, reported in 2002 AIR SCW 5259.
7. Learned counsel for the respondents-claimants in both the
appeals submits that accident had taken place on 27.3.2008 and
even then the claimants have not received any amount as
compensation by way of interim relief, since stay to the impugned
orders is granted by this Court and since record and proceedings
have been called by this court, the Tribunal could not proceed with
the claim petitions. Consequently, since 2008, claimants have not
received any amount as compensation. Learned counsel submits
that both the deceased persons were travelling in a vehicle matador
bearing registration No. MH-18-A-7358. Another vehicle bearing
registration No. MH-18-B-7094 is insured with appellant-insurer and
in that way, there is no breach of condition of policy and since the
vehicle bearing registration No. MH-18-B-7094 was also involved in
the accident, the appellant insurer is liable to pay compensation
jointly and severally along with other respondents. Learned counsel
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submits that the Tribunal has therefore, rightly allowed application
Exh.6 in both the claim petitions. No interference is required.
8. Learned counsel for the respondents-owners submits that the
Tribunal has fixed the liability jointly and severally on all respondents
to pay compensation under No Fault Liability to the claimants.
Learned counsel submits that since liability is joint and several,
claimants may proceed against any of the respondents to recover the
amount as directed by the Tribunal. Since application Exh.6 in both
the claim petitions have been filed for claiming compensation under
No Fault Liability, appellant-insurer is not entitled to raise defence of
fault. Learned counsel submits that there is no substance in the
appeals and both the appeals are thus, liable to be dismissed.
9. It is not disputed that the vehicle matador bearing registration
No. MH-18-B-7094 was also involved in the accident. It is clear from
the police papers and on the basis of the other documents such as
Comp. Form A etc. that accident had arisen out of use of motor
vehicles bearing registration No. MH-18-A-7358 and MH-18-B-7094.
So far as claim under No Fault Liability is concerned, appellant-
insurer is not entitled to raise grounds of fault. At this stage, when
the application for interim relief under No Fault Liability is under
consideration, appellant-insurer cannot raise ground that driver of
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another vehicle involved in the accident was responsible for the
accident alone and driver of the vehicle which is insured with
appellant-insurer was not at fault. Furthermore, it appears that both
the deceased persons were not travelling in the vehicle matador
bearing registration No. MH-18-B-7094.
10. In view of the above discussion, I do not find any fault in the
impugned orders. Learned Member of the Tribunal has rightly
allowed applications Exh-6 and directed respondents to pay
compensation under No Fault Liability jointly and severally to the
claimants. However, the Tribunal, while deciding the claims of fault,
may consider all grounds raised by the appellant-insurer and take
appropriate decision on merits, in accordance with law. Since record
and proceedings have been called by this Court in both the appeals,
both the claim petitions are pending before the Tribunal since 2008.
In view of this, it would be appropriate to direct the Tribunal to decide
both the claim petitions as expeditiously as possible in a time bound
manner. In view of the above, I pass the following order:-
ORDER
I. First Appeal No. 2507 of 2010 and First Appeal No. 2778
of 2010 are hereby dismissed with costs.
II. The Member, M.A.C.T. Jalgaon is hereby directed to
dispose of M.A.C.P. Nos. 409 of 2008 and 408 of 2008
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as expeditiously as possible and preferably within a
period of one year from today.
III. The respondents-original claimants in both the claim
petitions are permitted to withdraw the amount deposited
by the appellant-insurer before this Court along with
accrued interest, if any, during pendency of the appeals.
IV. The record and proceedings be sent to the Tribunal
forthwith.
V.
Both the First Appeals are accordingly disposed of.
( V. K. JADHAV, J.)
rlj/
