Bombay High Court
United India Insurance Com Ltd The ... vs Sanjay Balkrishna Bongilwar And 3 ... on 6 December, 2016
Bench: S.B. Shukre
J-fa335.06.odt 1/7
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL No.335 OF 2006
United India Insurance Company Limited,
Through Branch Manager,
Branch office at Chandrapur,
Mul Road, Chandrapur. : APPELLANT
...VERSUS...
1. Sanjay s/o. Balkrishna Bongilwar,
Aged about 38 years,
Occupation : Labourer.
2. Sou. Vaishali w/o. Sanjay Bongilwar,
Aged about 31 years,
Occupation : Household,
Respondent Nos.1 and 2 residents of
Daliya Tiles Factory, M.I.D.C.,
Chandrapur, Tah. And Distt. Chandrapur.
3. Sanjay s/o. Gulabrao Jununkar,
Aged Years,
Occupation : Business,
R/o. Anchaleshwar Ward, Chandrapur.
Appeal is dismissed
4. Rahul s/o. Govinda Khobragade,
against respondent
No.4, vide Aged Years,
Registrar's order Occupation : Driver,
dt.12.2.2013. R/o. Babupeth Ward No.3,
Chandrapur, Tah. And Distt. Chandrapur. : RESPONDENTS
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
Shri S.N. Dhanagare, Advocate for the Appellant.
Shri Deoul Pathak, Advocate for the Respondent No.3.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
WITH
CROSS OBJECTION No.30 OF 2007
Sanjay s/o. Gulabrao Jununkar,
Aged about 35 years,
Occupation : Business,
::: Uploaded on - 13/12/2016 ::: Downloaded on - 14/12/2016 00:04:06 :::
J-fa335.06.odt 2/7
R/o. Anchaleshwar Ward,
Chandrapur. : APPELLANT
...VERSUS...
1. United India Insurance Company Limited,
Through Branch Manager,
Branch office at Chandrapur,
Mul Road, Chandrapur.
2. Sanjay s/o. Balkrishna Bongilwar,
Aged about 38 years,
Occupation : Labour,
R/o. Daliya Tailes Factory, MIDC,
Chandrapur, Tah. And Distt. Chandrapur.
3. Sou. Vaishali w/o. Sanjay Bongilwar,
Aged about 31 years,
Occupation : Household,
R/o. Daliya Tiles Factory,
MIDC, Chandrapur,
Tah. And Distt. Chandrapur. : RESPONDENTS
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
Shri Deoul Pathak, Advocate for the Appellant-Cross-objector.
Shri S.N. Dhanagare, Advocate for the Respondent No.1.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
CORAM : S.B. SHUKRE, J.
th
DATE : 6
DECEMBER, 2016.
ORAL JUDGMENT :
1. By this appeal, the legality and correctness of the judgment
dated 28th February, 2006 has been questioned by the appellant, original
respondent No.3. By the cross-objection, the original respondent No.1
has also challenged the legality and correctness of the same judgment.
2. I have heard Shri S.N. Dhanagare, learned counsel for the
appellant and Deoul Pathak, learned counsel for the cross-objector. None
J-fa335.06.odt 3/7
for the original claimants, who are the respondent Nos.2 and 3 in the
first appeal as well as the cross-objection, though duly served.
3. According to the learned counsel for the appellant, the pay
and recover order could not have been passed, as there was a
fundamental breach of the conditions of the insurance policy. Learned
counsel for the cross-objector submits that no proper opportunity has
been afforded to her, the original respondent No.3 and that there is
ample evidence available on record which establishes the fact that on the
date of accident, which took place on 16 th May, 2000, the cross-objector
was not the owner of the tractor and trolley involved in the accident. He
submits that there are admissions given by the new owner which go to
establish that he was the owner on the relevant date. He also submits
that the insurance company as well as the claimants knew that the cross-
objector was not the original owner and that the vehicles were already
sold out to the new owner. He further submits that in these
circumstances, there would be a miscarriage of justice, if the cross-
objection is not allowed and the case is not remanded back to the Claims
Tribunal for re-trial in accordance with law. Now, following points arise
for my determination :
i) Is this a fit case for passing pay and recover
order ?
ii) Whether the case needs to be remanded to
the Claims Tribunal for a decision afresh ?
J-fa335.06.odt 4/7
4. I would first deal with the argument of the learned counsel
for the insurance company-the appellant which raises the first point for
determination. The reasons why the learned Member of the Claims
Tribunal has passed an order of pay and recovery could be seen in
paragraph 9 of the impugned judgment. They show that the learned
Member has taken into consideration the distinction between a case
where there is a breach of the conditions of the policy and a case where
there is not in existence any insurance policy covering the vehicle
involved in the accident and therefore, held that the insurance company
could be directed to pay compensation and then be allowed to recover
the same from the owner of the vehicle. Of course, the learned Member
could have stated more reasons. But, that could not be a ground for
interfering with such an order. Then, the reasons given by the learned
Member could not be said to be going against any settled principle of
law. They are also not of such a nature as would not logically arise from
the facts and circumstances of the case. Therefore, only because more
reasons are not given and another view could possibly have been taken
by the learned Member, it would not be appropriate for this Court to take
the other view by upsetting the impugned judgment. After all, this is not
a case where there is no insurance policy covering the vehicles in
question. Claimants are poor persons, who have lost their young son
who would have been their support in their old age. Original petitioner
No.1, the father of deceased Akshay is a labourer and original petitioner
J-fa335.06.odt 5/7
No.2, the mother of the deceased, is a house-wife and with their such
occupations, they would find it very difficult to execute the decree
against the owner, which difficulty would not be there for the appellant,
being equipped with necessary resources and manpower. The appeal,
therefore, deserves to be dismissed. First point is thus answered as in the
affirmative.
5. As regards the cross-objection, which gives rise to second
point for determination, I find that sufficient opportunity was already
afforded to the cross-objector to say and submit whatever now he wants
to say. This opportunity, however, was frittered away by him. In fact, I
have already given detailed reasons while rejecting the application filed
by the cross-objector for grant of permission to produce in evidence
certain documents. These reasons would equally apply here also. At this
stage, the cross-objector cannot be permitted to re-open the whole case,
lest a huge prejudice to the rights of the claimants, the original
petitioners would be caused. Their rights are now settled. Record has
already been created and it deserves sanctity to be given to it. Besides,
one does not know if the contentions now sought to be raised by the
cross-objector could ever be proved by him. The reason being that the
corrected AA Form being relied upon by the cross-objector has been
created about 9 years after the accident and about 3 years after passing
of the impugned judgment and so would make the cross-objections as
inherently weak. In case, the cross-objector meets with failure to prove
J-fa335.06.odt 6/7
his contentions, the loss that the claimants would suffer would be
irreparable. On the other hand, if this cross-objection is rejected, no such
prejudice would be caused to the cross-objector as it would not be an end
of all and be of all for the cross-objector. He would still have a remedy
available against the new owner, who according to him, has already
admitted his ownership on the date of accident in this case. The
cross-objection filed by the original respondent No.1 also deserves to be
dismissed. Second point is answered accordingly.
6.
Learned counsel for the cross-objector has placed his reliance
upon the provision of Section 50(1)(a)(i) of the Motor Vehicles Act in
support of his contention that 15 days time is available for previous
owner to change the registered owner in the record of the RTO. He has
also placed reliance upon the case of Munni Ram vs. Fakir Chand and
another, reported in AIR 2010, Punjab and Haryana 50 and the case of
Ravi Kumar vs. Jitender Lathar, decided on 12th March, 2014 by Coram
: K. Kannan J, High Court of Punjab and Haryana, to demonstrate as
to when the ownership of the vehicle is transferred. He has further
placed reliance on the case of HDFC Bank Ltd. Vs Reshma and others
reported in 2015(6) Mh.L.J. 51 to support his contention that it is the
person in control and possession of the vehicle, who ought to be
construed as its owner and that a registered owner in such a case would
not be liable to pay compensation vicariously. Said provision of law and
cases being on the question of ownership of the vehicle are on merits of
J-fa335.06.odt 7/7
the cross-objector's case and would be of use only if the case is to be
remanded to the trial Court for a fresh decision. But, that is not the case
now and so these cases would be of no assistance to the cross-objector.
7. The First appeal stands dismissed with costs.
8. The Cross-objection stands dismissed with no costs.
9. At this stage, Shri S.N. Dhanagare, learned counsel for United
India Insurance Company Ltd. seeks leave of the Court to withdraw the
amount deposited in this Court, as a part of statutory in compliance.
The claimants at present, have not put in any claim to this amount as
they are absent before the Court. What has been deposited is only by
way of compliance with law and directions of the Court. Therefore, the
appellant is permitted to withdraw the amount deposited in this Court.
10. The claimants would be at liberty to execute the award in
accordance with law.
JUDGE
okMksns
