The Oriental Insurance Company ... vs Afrenbee Latifshah Phakir And Anr
2016 Latest Caselaw 735 Bom

                                                 1                              fa.743.11.jud  




                                                                                 
            IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                         
                      NAGPUR BENCH, NAGPUR

                                   FIRST APPEAL NO.743 OF 2011




                                                        
     Appellant                 :       The Oriental Insurance Company Ltd., 
                                       Through its Branch Office at Buldhana,
                                       At Khamgaon, Dist. Buldhana, 
                                       Represented by Manager, 
                                       Oriental Insurance Company, 




                                             
                                       T.P. Hub, Nagpur.
                              ig       -- Versus --

     Respondents               :  1] Afrenebee Latifshah Phakir
                            
                                     Aged 11 Yrs., Occupation - Education,
                                     through her guardian 
                                     Latifshah Hanifshah Phakir, 
                                     R/o. Datala, Tq. Malkapur, Dist. Buldhana.
      


                                   2] Mohm. Arif Sk. Lal,
   



                                      Age - Major, Occupation - Business,
                                      R/o Borkhedi, Tq. Motala, Dist. Buldhana.
                =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
                     Mrs. Mrunal Naik, Advocate for the appellant.





                   Shri K.S. Narwade, Advocate for respondent No.1.
                    Shri C. A. Joshi, Advocate for respondent No.2.
                =-=-=-=-=-=-=-=-=-=-=-=-==-=-=-=-=-=-=-=-=
                               CORAM :  R.K. DESHPANDE, J.

                               DATE     :  MARCH 18, 2016


     ORAL JUDGMENT :-  


     01]              In   M.A.C.P.   No.161/2006   filed   under   Section   166   of   the

Motor Vehicles Act, the Tribunal has awarded compensation of

Rs.85,275/- in a permanent disability claim holding the owner of the

2 fa.743.11.jud

vehicle and the insurance company jointly and severally liable to pay the

amount of compensation along with simple interest. Hence, the

insurance company is before this Court in this appeal.

02] The learned Counsels appearing for the parties have urged

that the Tribunal has committed an error in holding the insurance

company jointly and severally liable to pay the amount of compensation

without granting the appellant-insurance company liberty to recover the

said amount from the owner of the vehicle.

03] The points for determination are as under :

1. Whether the Tribunal has committed an error in holding the

insurance company jointly and severally liable along with the

owner of the vehicle to pay the amount of compensation?

2. Whether the appellant-insurance company can be granted

liberty to recover such amount from the owner of the vehicle?

04] The offending vehicle was the Tempo Trax No. MH-28-H-

1514, which was validly insured on the date of occurrence of the

accident with the appellant-insurance company. The Tribunal has

3 fa.743.11.jud

recorded finding in paragraph 11 of the judgment that it cannot be said

that non possession of valid driving licence has contributed towards the

accident and, therefore, the insurance company cannot be absolved from

liability to reimburse the owner/insured.

05] Undisputedly, the accident occurred on 14/01/2005. The

driving licence produced on record by the Regional Transport Officer

shows that the said licence was valid for the period from 27/01/2005 to

26/01/2008. Thus, the licence was taken out subsequently. There is

nothing on record to show that on the date of occurrence of accident,

the driver of the offending vehicle was possessing a valid driving licence.

In such a situation, the breach of policy has been clearly established.

The insurance company cannot, therefore, be held liable to indemnify

the owner, though it cannot avoid its liability towards the claimants.

The Tribunal has, therefore, committed an error in holding that the

appellant-insurance company jointly and severally liable to make the

payment of compensation. The point No.1 is answered accordingly.

06] The claimant is the third party so far as the offending

vehicle i.e. Tempo Trax is concerned and, therefore, it is open for the

appellant-insurance company to recover the said amount of

4 fa.743.11.jud

compensation, if paid to the claimant, from the owner of the vehicle in

accordance with law. The point No.2 is answered accordingly.

07] For the reasons stated above, the award passed by the

Motor Accident Claims Tribunal on 14/06/2010 is modified as under :

1. Respondent-Mohm. Arif Sk. Lal, the owner of the vehicle

bearing No. MH-28-H-1514 is held liable to pay the amount

of compensation of Rs.85,275/- (inclusive of NFL amount)

to the claimant along with simple interest at the rate of

Rs.7.5% per annum from the date of application till its

realization.

2. The insurance company is directed to pay the amount of

Rs.85,275/- along with the interest at the rate of Rs.7.5%

per annum as per the order passed the Motor Accident

Claims Tribunal to the claimant and thereupon shall be

entitled to recover such amount from the owner of the

vehicle.

3. It is informed that the entire amount has already been

deposited in this Court by the appellant-insurance company,

5 fa.743.11.jud

the same is permitted to be withdrawn by the claimant

along with interest, if any, accrued thereon.

4. No order as to costs.

JUDGE

*sdw