Bombay High Court
New India Assurance Co Ltd vs Sanjay Pandhari Wanare And Anr on 22 March, 2016
Bench: V.K. Jadhav
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 3218 OF 2008
New India Assurance Company Ltd.,
through its Divisional Manager,
Adalat Road, Aurangabad
For Branch Office at Jalgaon,
District Jalgaon. ... Appellant
(Orig. Resp. No.2)
VERSUS
1. Sanjay S/o Pandhari Wanare,
Age: 25 years,
Occup: Majuri (Fixing Floor Tiles),
R/o Laxmi Nagar, Chalisgaon,
Taluka Chalisgaon,
District Jalgaon.
2. M/s. Eagal Tankers,
52 Vooda
Co-operative Society,
Sardar Patel Shopping Center,
Post Chhani Baroda,
District Bharuch,
Gujrat - 39001 ... Respondent
(Resp.No.1-Orig. Claimant
Resp.No.2-Orig. Resp.No.1)
WITH
FIRST APPEAL NO. 3220 OF 2008
New India Assurance Company Ltd.,
through its Divisional Manager,
Adalat Road, Aurangabad
For Branch Office at Jalgaon,
District Jalgaon. ... Appellant
(Orig. Resp. No.2)
VERSUS
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1. Suresh S/o Nagarmal Kumawat,
Age: 24 years,
Occup: Majuri (Fixing Floor Tiles),
R/o in front of Hotel Rani Park,
Dhule Road, Chalisgaon,
Taluka Chalisgaon,
District Jalgaon.
2. M/s. Eagal Tankers,
52 Vooda
Co-operative Society,
Sardar Patel Shopping Center,
Post Chhani Baroda,
District Bharuch,
Gujrat - 39001 ... Respondent
(Resp.No.1-Orig. Claimant
Resp.No.2-Orig. Resp.No.1)
.....
Advocate for Appellant : Mr. Mohit Deshmukh h/f Mr. S. G.
Chapalgaonkar
Advocate for Respondent No. 1 in both the FAs : Mr. Mukul Kulkarni
Respondent No. 2 is deleted as per order of Registrar (Judicial)
dated 05.10.2010
.....
CORAM : V. K. JADHAV, J.
DATED : 22nd MARCH, 2016
ORAL JUDGMENT :-
1. Being aggrieved by the judgment and award passed by
learned Member, Motor Accident Claims Tribunal, Jalgaon dated
08.04.2008 in MACP No. 356 of 2004 viz Sanjay Pandhari Wanare
vs. M/s. Eagal Tankers and Another and in MACP No. 357 of 2004
viz. Suresh Nagarmal Kumawat vs. M/s. Eagal Tankers and Another,
respectively, respondent No.2-insurer in both the claim petitions has
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preferred these two separate appeals.
2. Brief facts giving rise to these First Appeals are as follows:
On 08/05/2004, claimant Sanjay, alongwith another claimant
Suresh, was proceeding on his motorcycle bearing registration No.
MH-19-5311 on Chalisgaon-Dhule road. On the way, at 7.00 p.m.,
one tanker bearing registration No. GJ-07-X-9464 came from the
opposite direction in high speed and in negligent manner, and gave
forcible dash to the motorcycle, in consequence of which, claimant
Sanjay, who was riding the motorcycle at the time of accident and
another claimant Suresh, who was the pillion rider, sustained
grievous injuries which resulted in permanent disablement. Both of
them filed two separate claim petitions as stated above. In MACP
No. 356 of 2004, the tribunal has awarded compensation of
Rs.5,90,000/- along with interest against respondent Nos. 1 and 2 ,
whereas, in MACP No. 357 of 2004, the tribunal has awarded
Rs.1,00,000/- as compensation payable by the respondents, along
with interest. Hence, these two appeals preferred by the insurer.
3. Learned counsel for the appellant-insurer submits that claimant
Sanjay, who was riding the motorcycle at the time of accident, had
driven his motorcycle in rash and negligent manner and also
contributed negligence to certain extent. Learned counsel further
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submits that as per the contents of F.I.R., at the time of accident, one
truck was passing by that road and in an attempt to overtake said
truck, claimant Sanjay, who was riding the motorcycle, dashed
against the tanker coming from the opposite direction. Learned
counsel submits that after the accident, as per the contents of the
F.I.R. itself, motorcycle of the claimant came below the rear wheels
of the said truck. Learned counsel submits that, the owner, the driver
and the insurer, if any, of the said truck are not impleaded as party to
the claim petitions, nor the tribunal had issued notice to the driver of
the said truck. Learned counsel submits that the tribunal has not
considered the negligence on the part of claimant Sanjay while riding
motorcycle and saddled the entire liability on the respondent-insurer.
4. Learned counsel for the appellant-insurer submits that, as per
the order passed by this Court, the appellant-insurer has deposited
entire amount of compensation before the tribunal.
5. Learned counsel for both the claimants submits that claimant
Sanjay has examined himself before the tribunal. Learned counsel
submits that he is the best witness to the incident and he has
deposed that the accident had taken place on account of rash and
negligent driving of driver of the tanker. Learned counsel submits
that the tribunal has not only considered the evidence of claimant-
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injured, however, also considered the Police papers, and
accordingly, arrived at correct conclusion. Learned counsel submits
that the appellant-insurer has, however, not examined any witness
on the point that claimant Sanjay has contributed negligence and he
was also responsible for the accident to some extent. Learned
counsel further submits that so far as the alleged involvement of
another vehicle-truck in the accident is concerned, admittedly, the
said vehicle is not at all responsible for the accident and after the
accident, the motorcycle came below the rear wheels of the said
truck. Learned counsel submits that the appellant-insurer has also
not pleaded while opposing the claim petition that the driver of the
said truck is responsible for the accident. Learned counsel submits
that the tribunal has rightly held that the driver of the tanker alone is
responsible for the accident, and accordingly, assessed the
compensation after considering the income and the nature of
permanent disablement sustained by the claimants. Learned counsel
submits that no interference is required and both the appeals are
liable to be dismissed with costs.
6. So far as the compensation assessed by the tribunal is
concerned, I do not find any fault in it. Learned Member of the
tribunal has considered the income of both the claimants and after
appreciating medical evidence in respect of permanent disablement
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sustained by both the claimants, has awarded just and reasonable
compensation. Both the learned counsel have also not disputed the
same.
7. In view of the above, following points arise for my
determination and I have recorded my findings to those points for the
reasons given below :
POINTS FINDINGS
1 Whether the claimants prove that, due to In the affirmative.
rash and negligent driving of the driver of
tanker bearing registration No. GJ-07-X-
9464, the accident had taken place?
2 Whether respondent No.2-insurer proves In the negative.
that claimant Sanjay has contributed
negligence by riding motorcycle in rash and
negligent manner?
3 Whether the impugned judgment and order In the negative.
calls for any interference ?
4 What order ? As per final order.
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REASONS
8. Claimant Sanjay has examined himself by filing affidavit of
evidence before the tribunal. Claimant Sanjay has deposed that the
accident has taken place because of rash and negligent driving on
the part of the tanker driver. On careful perusal of the contents of
F.I.R. dated 08.05.2004, it appears that, on the same day, driver of
the said another vehicle-truck lodged complaint in the concerned
Police Station. It is stated in the said complaint that at the time of
accident, one motorcycle had overtaken his truck and thereafter, one
tanker bearing registration No. GJ-07-X-9464 came from the
opposite direction in high speed and gave dash to the motorcycle
which was proceeding by that road in front of his truck. Thus, the
evidence of claimant Sanjay coupled with the contents of the F.I.R.,
is sufficient to conclude that the accident had taken place because of
rash and negligent driving of the tanker driver. The First Information
Report was lodged by an independent person and the accident had
taken place in front of his truck. On the same day, the said truck
driver had lodged complaint in Police Station alleging therein that the
tanker driver had driven the tanker in fast speed and gave dash to
the motorcycle from its driver side. The appellant-insurer has not
examined the tanker driver to substantiate its case that claimant
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Sanjay has also contributed negligence by riding motorcycle in rash
and negligent manner. There is no evidence at all to draw inference
that claimant Sanjay had driven the motorcycle in rash and negligent
manner and also contributed negligence to some extent. I, thus, do
not find any fault in the impugned judgment and award passed by the
tribunal in both the claim petitions.
9. In the claim petition filed by Sanjay, even though claimant
Sanjay has deposed about his earning as Rs.7,500/- p.m., in light of
the evidence available on record, the tribunal has considered his
monthly income as Rs.3,000/- and by applying correct multiplier,
assessed the compensation. Learned Member of the tribunal,
considering the disablement i.e. amputation of right leg of claimant
Sanjay, awarded compensation corresponding to 90% permanent
disablement sustained by claimant Sanjay. Learned Member of the
tribunal has also considered the medical expenses incurred by the
claimant, his pains and sufferings and the other relevant
expenditures. In another claim petition also, the tribunal has
considered the income and the nature of disablement, and
accordingly, awarded just and reasonable compensation to the
claimant.
10. In view of the above discussion, I answer point No.1 in the
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affirmative, point Nos.2 and 3 in the negative and I proceed to pass
the following order:
ORDER
I. Both the appeals bearing First Appeal No. 3218 of 2008
"New India Assurance Company Ltd. vs. Sanjay Pandhari
Wanare and Another" and First Appeal No. 3220 of 2008
"New India Assurance Company Ltd. vs. Suresh Nagarmal
Kumawat and Another", are hereby dismissed. In the
circumstances, there shall be no order as to costs.
II. The Respondents-original claimants in both the appeals are
permitted to withdraw the amount deposited by the
appellant-insurer in respective claim petitions before the
tribunal.
III. Both the First Appeals are accordingly disposed of.
( V. K. JADHAV, J.)
...
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