Bombay High Court
The Oriental Insurance Company ... vs Rafikshah Hanifshah Aaskhan And ... on 18 March, 2016
Bench: Ravi K. Deshpande
1 fa.736.11.jud
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL NO.736 OF 2011
Appellant : The Oriental Insurance Company,
Through its Branch Office at Buldhana,
At Khamgaon, Dist. Buldhana,
Represented by Manager,
Oriental Insurance Company,
T.P. Hub, Nagpur.
ig -- Versus --
Respondents : 1] Rafikshah Hanifshah Aaskhan,
Aged 33 Yrs., Occupation - Labourer,
2] Sandalbee Rafikshah,
Aged 28 Yrs., Occupation - Household,
Both R/o Datala, Tq. Malkapur, Dist. Buldhana.
3] 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 Nos.1 and 2.
Shri C. A. Joshi, Advocate for respondent No.3.
=-=-=-=-=-=-=-=-=-=-=-=-==-=-=-=-=-=-=-=-=
CORAM : R.K. DESHPANDE, J.
DATE : MARCH 18, 2016
ORAL JUDGMENT :-
01] In M.A.C.P. No.130/2005 filed under Section 166 of the
Motor Vehicles Act, the Tribunal has awarded compensation of
2 fa.736.11.jud
Rs.1,40,000/- in a death claim holding the owner of the 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
3 fa.736.11.jud
accident with the appellant-insurance company. The Tribunal has
recorded finding in paragraph 12 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 at Exh.64 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.
4 fa.736.11.jud
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
compensation, if paid to the claimants, 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 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.1,40,000/- (inclusive of NFL amount)
along with future 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.1,40,000/- 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 claimants and thereupon shall be
entitled to recover such amount from the owner of the
vehicle.
5 fa.736.11.jud
3. It is informed that the entire amount has already been
deposited in this Court by the appellant-insurance company,
the same is permitted to be withdrawn by the claimants
along with interest, if any, accrued thereon.
4. No order as to costs.
ig JUDGE
*sdw
