Icici Lombard General Insurance ... vs Mathurabai Wd/O Devendra ...
2016 Latest Caselaw 679 Bom

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                                                                       fa29.14.odt

         IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                               
                   NAGPUR BENCH, NAGPUR




                                                       
                          First Appeal No.29 of 2014

       ICICI Lombard General Insurance
       Co. Ltd.,




                                                      
       Through its Authorised Signatory,
       having its office at Land Mark
       Building, Wardha Road,
       Ramdaspeth, Nagpur.                               ... Appellant




                                         
            Versus
                             
       1. Mathurabai wd/o Devendra Wankhede,
          Aged about 49 years,
          Occupation - Household.
                            
       2. Satish s/o Devendra Wankhede,
          Aged about 28 years,
          Occupation - Education.
      


       3. Rajeshwari d/o Devendra Wankhede,
   



          Aged about 25 years,
          Occupation - Education.

       4. Suwarta s/o Devendra Wankhede,





          Aged about 23 years,
          Occupation - Education.

            All R/o Tondgaon, Tq. Achalpur,
            District Amravati.





       5. Ganesh s/o Bhumaka Mavaskar,
          Aged Major,
          Occupation - Service,
          R/o Reserve Line Camp,
          Amravati                                       ... Respondents




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                                                                      fa29.14.odt

       Shri A.J. Pophaly, Advocate for Appellant.




                                                                              
       Shri P.R. Agrawal, Advocate for Respondent Nos.1 to 4.




                                                      
                 Coram : R.K. Deshpande, J.

th Date : 17 March, 2016

Oral Judgment :

1. In a claim petition filed under Section 163-A of the Motor

Vehicles Act, 1988, registered as M.A.C.P. No.174 of 2008, the

Motor Accident Claims Tribunal, by its award dated 23-9-2013,

has held the respondent No.5-Ganesh s/o Bhumaka Mavaskar,

the owner of the vehicle, i.e. Hero Honda Motor Cycle bearing

registration No.MH-27/AE-9464, liable to pay the compensation

of Rs.3,68,000/- to the respondent Nos.1 to 4/claimants on

account of death of one Devendra Jotirao Wankhede, with

interest at the rate of 6% per annum from the date of filing of the

petition till its realization. The Tribunal has further directed the

appellant-Insurance Company to deposit an amount of

compensation payable to the claimants and then to recover the

said amount from the respondent No.5, the owner of the vehicle.

fa29.14.odt

2. The points for determination are as under :

(i) Whether the award passed by the Motor Accident Claims Tribunal directing the appellant-Insurance

Company to deposit the amount of compensation and then to recover it from the owner of the vehicle is liable to be interfered with? And

(ii) Whether the Tribunal was right in awarding

compensation of Rs.3,68,000/-?

3. The deceased was the occupant in the auto-rickshaw

bearing registration No.MH-27/P-5208, which was dashed by

Hero Honda Motor Cycle bearing registration

No.MH-27/AE-9464 on 29-9-2008 near shivar of Village

Tondgaon, near Triveni Sangam on Paratwada-Chandur Bazar

Road. The motor cycle was insured with the appellant-Insurance

Company on the date of occurrence of the accident.

Undisputedly, the Act Policy of insurance was in force. So far as

the appellant-Insurance Company is concerned, the deceased

fa29.14.odt

would be a third party, and in a claim petition under

Section 163-A of the Motor Vehicles Act, the aspect of negligence

has no role to play.

4. In the light of the aforesaid factual position, the finding of

the Tribunal that there was a breach of policy on the part of the

rider of the Motor Cycle, needs to be considered. The finding in

para 8 of the award of the Tribunal is that one Pravin Bhaiyyaji

Taide was the rider of the Motor Cycle at the time of the accident

and the licence possessed by him to drive the said vehicle was

valid for the period from 14-1-2005 to 13-1-2008. The accident

occurred on 29-9-2008, and, therefore, the Tribunal has

answered the issue in the affirmative, holding that on the date of

accident, the rider was not possessing a valid driving licence and

there was a breach of policy.

5. No doubt, that the Tribunal has not recorded the finding

that the appellant-Insurance Company along with the owner of

the Motor Cycle in question are jointly and severally liable to

fa29.14.odt

make the payment of compensation. This, however, by itself,

shall not absolve the appellant-Insurance Company from

discharging its liability towards third party whose risk is covered

by the "Act Policy" and to frustrate the very object of compulsory

insurance, more particularly when the deceased was not in any

manner contributing to the negligence resulting in his death.

The appellant-Insurance Company is, therefore, bound to pay the

amount of compensation to the claimants, who are the

dependents of the deceased, as the policy of insurance was valid

and subsisting on the date of occurrence of the accident in

respect of the vehicle, which is the Motor Cycle in question.

6. The question is of the appellant-Insurance indemnifying

the owner of the said vehicle. In the absence of any finding that

the appellant-Insurance Company was jointly and severally liable

to pay the compensation, the Tribunal was right in holding that it

shall be open for the appellant-Insurance Company to recover the

amount paid to the claimants from the owner of the vehicle on

the ground that he is not entitled to be indemnified on account

fa29.14.odt

of breach of policy. Hence, no fault can be found with the said

view taken by the Tribunal.

7. On the aspect of quantum of compensation, it is the

contention raised by Shri Pophaly, the learned counsel for the

appellant-Insurance Company, relying upon the post-mortem

report at Exhibit 35, that the age of the deceased is shown as 50

years in the said report. Hence, according to him, the

multiplicant of 11 was required to be applied in the present case

as against the multiplicant of 13.

8. Undisputedly, in the claim petition, the age of the

deceased is shown as 48 years. This fact is not disputed. The

claimants had entered the witness-box and deposed about the

age of the deceased. The appellant-Insurance Company could

not elicit anything adverse from the claimants on the question of

age proof of the deceased, except putting the suggestion that

false documents are produced in support of the age proof of the

deceased. None of the documents placed on record can

fa29.14.odt

constitute relevant evidence to show the age of the deceased. If

the appellant-Insurance Company wanted to raise the dispute

regarding age of the deceased, such a stand should have been

taken in the written statement so that appropriate issue could

have been framed and the parties could have led evidence on this

aspect of the matter. Shri Pophaly, the learned counsel for the

appellant-Insurance Company, does not dispute that if the age of

the deceased is considered as 48 years, then the multiplicant of

13 was properly applied by the Tribunal. In view of this, no

interference is called for in the total amount of compensation

determined by the Tribunal.

9. In the result, the appeal is dismissed. If the appellant-

Insurance Company has deposited any amount, the same shall be

permitted to be withdrawn by the claimants along with interest,

if any, accrued thereon. No order as to costs.

Judge.

Lanjewar,PS