Bombay High Court
National Insurance Company Ltd. ... vs Sanjay Shriram Kirpal And Anr on 29 April, 2016
Bench: Prasanna B. Varale
1 FA892.13.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
FIRST APPEAL NO. 892 OF 2013
APPELLANT : National Insurance Company Limited,
(Ori. Resp.No.2) Nagpur Regional Office,
Mangalam Arcade, 2nd Floor,
Dharampeth, North Ambazari Road,
Nagpur - 440 010.
through the Regional Manager,
Nagpur - 440 001. (On R.A.)
ig - VERSUS -
RESPONDENTS : 1] Sanjay Shriram Kirpal,
Aged about 32 years, Occu. Service,
R/o Hinganghat, Tah. Hinganghat,
Dist. Wardha. (Original Petitioner)
2] Sunil Shriram Kirpal,
Aged about 40 years, Occu. Service,
R/o Hinganghat, Tah. Hinganghat,
Dist. Wardha, (Original Respondent no.1)
-------------------------------------------------------------
Mrs. Smita P. Deshpande, Advocate for the appellant.
Mr. V. L. Jaiswal, Advocate for the respondent no.1
------------------------------------------------------------
CORAM : PRASANNA B. VARALE, J.
JUDGMENT RES. ON : 25.06.2014
JUDGMENT DELI. ON : 29.04.2016
J U D G M E N T
1. Heard.
2. ADMIT.
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3. By the present appeal, the appellant-National Insurance
Company Ltd. (hereinafter referred to as "the Insurance Company" for the sake
of brevity) challenges the judgment and award passed by the learned
Chairman, Motor Accident Claims Tribunal, Wardha (hereinafter referred to
as "the Tribunal" for the sake of brevity), dated 28.09.2011 in Motor Accident
Claim Petition (MACP) No. 93 of 2010.
4.
The respondent no.1/original claimant had submitted the claim
petition under Section 166 of the Motor Vehicle Act of 1988 (hereinafter
referred to as "the Act of 1988" for the sake of brevity) for grant of
compensation of Rs.1 lac. It was the case of the respondent no.1/claimant
that he was an employee working in a medical shop and was drawing income
@ Rs.4,000/- per month. He was 30 years of age when the accident took
place i.e. on 13.11.2009. On 13.11.2009, the respondent no.1/claimant was
riding motorcycle bearing registration No. MH32/N-5774 proceeding towards
Hinganghat from Jam. The said motorcycle was owned by the respondent
no.2 herein/original respondent no.1, namely Sunil S. Kirpal. While the
respondent no.1/claimant was proceeding towards Hinganghat, at a place
near mouza Ubda shivar on Jam-Hinganghat road, an unknown vehicle gave a
forceful dash from behind to the vehicle of the claimant. Due to forceful dash,
the claimant sustained multiple injuries including the injuries to vital parts of
body like head. The claimant was firstly taken to the Rural Hospital,
Hinganghat and subsequently he was shifted to CIIMS hospital, Nagpur. An
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information was also received by Samudrapur police station about the
incident and on the very day i.e. on 13.11.2009, Crime No. 166/2009 was
registered for the offences punishable under Sections 279, 337, 338 and 447
of the Indian Penal Code. The claimant submitted that due to the multiple
injuries, he was unconscious for nearly 20 days in the hospital and he gained
consciousness after 20 days. The claimant was required to be under medical
treatment in the hospital for the period of a month. It was submitted that
against the medical treatment, the claimant was required to expend an
amount of Rs.3.00 - 4.00 lacs. While the claim was submitted, it was stated
that the claimant was not recovered fully and was still under medical
treatment. It was further submitted that due to the accident, the claimant
suffered partial memory loss. It was submitted that at the relevant time, the
motorcycle vehicle was registered with the appellant-Insurance Company and
the insurance policy was live when the claim was submitted. It was submitted
that though, the claimant had to incur an amount of Rs.3.00 to 4.00 lacs as
expenditure towards medical treatment, the claim was restricted to Rs.1.00
lac only. The claimant, therefore, prayed for grant of compensation of Rs.1.00
lac from original respondent nos.1 and 2 with interest @ 18% per annum
jointly and severally.
5. The appellant-Insurance Company resisted the claim of the
respondent no.1/claimant denying all the submissions of the claimant. The
Tribunal, on framing certain issues, passed the impugned judgment and
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award, thereby allowing the claim petition and holding the appellant-
insurance company liable for payment of Rs.1.00 lac to the claimant, inclusive
of the amount of 'No Fault Liability' with interest @ 7.5% per annum from the
date of application till full realization of the amount.
6. In challenge to the impugned judgment and award, Mrs.
Deshpande, the learned counsel for the appellant-Insurance Company
vehemently submitted that the Tribunal though, framed the issue namely
'Does the applicant prove that the accident occurred due to rashness and
negligence of the driver of unknown vehicle and he suffered permanent
disability ?', fastened the liability on the appellant-Insurance Company for
payment of compensation of Rs.1.00 lac. It is firstly submitted by the learned
counsel for the appellant-Insurance Company that the respondent
no.1/claimant was not the owner of the motorcycle vehicle and he was merely
a driver of the said motorcycle at the relevant time of the accident ; and
secondly, the accident took place due to rash and negligent driving of the
other unknown colliding vehicle. It was submitted by the learned counsel for
the appellant-Insurance Company that the fact of giving dash to the
motorcycle by an unknown vehicle is also established by the other material
namely the First Information Report lodged at Samudrapur police station. It
was the further submission of the learned counsel that merely because the
insurance policy of the motorcycle vehicle was in force on the date of the
alleged accident, the liability of payment of compensation ought not to have
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been fastened on the appellant-Insurance Company in view of the fact that the
accident did not take place due to the vehicle, which was insured with the
appellant-Insurance Company, whereas the Insurance Company with which
the unknown vehicle who gave dash to the motorcycle was registered, was
liable to pay the compensation.
7. Per contra, the learned counsel for the respondent no.1/
claimant supports the impugned judgment and award passed by the Tribunal.
It was submitted by the learned counsel for the respondent no.1/claimant that
the provisions under the Act of 1988 for awarding compensation to the victim
are beneficial provisions. It was further submitted that the vehicle which was
being driven by the respondent no.1/claimant was insured with the appellant-
Insurance Company. There is no dispute in respect of the fact that an
unknown vehicle gave dash to the motorcycle, which was being driven by the
respondent no.1/claimant. It is further submitted that the respondent no.1/
claimant had established before the Tribunal that he was admitted in CIIMS
hospital at Nagpur and was under medical treatment for period of one month.
The medical bills were also placed on record. Thus, it was submitted that the
judgment and award passed by the Tribunal needs no interference at the
hands of this Court in the present appeal.
8. I have heard both the learned counsel at length and gone
through the record submitted before the Tribunal. From a perusal of the
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record, it reveals that the respondent no.1/claimant had presented the claim
petition on 22.07.2010, seeking compensation. The accident took place on
13.11.2009. The respondent no.1/claimant offered his examination as
witness. The respondent no.1/claimant in his oral testimony supported the
facts in the claim petition. He stated that on 13.11.2009, he was riding on
motorcycle bearing No. MH-32/N-5774 from Jam to Hinganghat and at about
20.00 hours, when he reached mouza Ubda shivar, an unknown vehicle gave
a forceful dash to him. It was further stated that due to dash, the respondent
no.1/claimant sustained multiple injuries and the said unknown vehicle fled
away from the spot. The appellant-Insurance Company in the written
statement to the claim petition denied practically every contention of the
claimant, including the motorcycle being driven by the respondent no.1/
claimant, received dash from an unknown vehicle. In the cross-examination
of the respondent no.1/claimant, nothing was brought on record shaking the
version of the respondent no.1/claimant.
9. A perusal of the record shows that an information was received
by Samudrapur police station about the accident and crime was registered for
the offences punishable under Sections 279, 337 and 338 of the Indian Penal
Code. Perusal of the First Information Report shows that on 13.11.2009 at
about 20.00 hours, when the respondent no.1/claimant was proceeding
towards Hinganghat by his Pulsar motorcycle, one vehicle Indica car gave
dash to the motorcycle. The rider of the motorcycle was immediately shifted
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to one hospital at Hinganghat by the passerby and thereafter the relatives of
the motorcycle rider shifted the injured in CIIMS hospital at Nagpur. A
perusal of the certificate of the appellant - Insurance Company about the
motorcycle vehicle shows that the vehicle was insured for the period from
02.02.2009 to 01.02.2010. The record further shows that various receipts
issued by CIIMS hospital, right from 13.11.2009, were placed on record along
with the bills of medical treatment. The Tribunal on the basis of the pleadings
of the parties and the material placed on record, framed the issues namely -
1] Does the applicant prove that the accident occurred due to
rashness and negligence of the driver of the unknown
vehicle and he suffered permanent disability ?
2] Does the applicant prove that he is entitled to Rs.1 lakh
as the compensation ?
3] Are the non-applicants jointly or any of them is liable to
pay compensation, and if yes, to what extent ?
4] What order and Award ?
It was observed by the Tribunal that though, the accident occurred due to rash
and negligent driving on the part of unknown vehicle, as the motorcycle
vehicle which was being driven by the respondent no.1/claimant was
subjected to accident and was insured with the respondent no.2/Insurance
Company (appellant herein), the Insurance Company was liable to pay
Rs.1.00 lac as compensation. The Tribunal further observed that the
conditions of the insurance policy were covering the risk of rider of the
motorcycle. The Tribunal further observed that the claim of the respondent
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no.1/claimant was supported by the documents namely, First Information
Report, spot panchanama, the documents relating to the treatment and
medical bills. It was further observed by the Tribunal that the said motorcycle
vehicle was insured with the appellant-Insurance Company and the insurance
policy was effective on the date of the accident. On considering these
grounds, the claim petition was allowed.
10.
Though, the learned counsel for the appellant-Insurance
Company made an attempt to submit that as the motorcycle vehicle being
driven by the respondent no.1/claimant had received dash from an unknown
vehicle, the liability to pay the compensation ought not to have been fastened
on the appellant-Insurance Company, I am unable to accept the submission of
the learned counsel for the appellant. As referred to above, perusal of the
record and oral testimony of the respondent no.1/claimant reveals certain
undisputed facts i.e. accident took place on 13.11.2009, the respondent
no.1/claimant was riding the motorcycle vehicle bearing No. MH-32/N-5774,
the said motorcycle vehicle was insured with the appellant-Insurance
Company and the insurance policy was in existence covering the rider of the
motorcycle for the insurance claim. The fact of accident to the motorcycle by
an unknown vehicle Indica car has been duly established in view of the oral
testimony as well as the documents like first information report and spot
panchanama. It is also not in dispute that the provisions of the Motor
Vehicles Act, 1988 in general and in particular, Section 166 of the said Act
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makes a provision for compensation. The said provision being a part of
beneficial legislation and on the backdrop of the facts that the motorcycle
vehicle was insured with the appellant-Insurance Company and insurance
policy was in existence at the time of the accident, the appellant-Insurance
company cannot shift its burden or liability of payment of compensation. The
Tribunal, on considering all the necessary materials and factors, arrived at a
just and proper conclusion and I see no reason to show any interference in the
impugned judgment and award, passed by the Motor Accident Claims
Tribunal, Wardha. The appeal thus being meritless deserves to be dismissed
and the same is accordingly dismissed. No costs.
JUDGE
Diwale
