Bombay High Court
Revanand Vasudeo Chaturvedi vs National Insurnce Company Ltd ... on 17 October, 2016
Bench: P.R. Bora
1 FA 658/2010 & 490/2010
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO.658 OF 2010
Revanand S/o Vasudeo Chaturvedi,
Age:33 years, Occ. Service as
Police Constable,
R/o. Plot no.9 Sukhshanti nagar,
Mantha Naka road, Jalna.
APPELLANT
(Orig. Claimant)
ig VERSUS
1. National Insurance Company Ltd.,
Through its Divisional Office,
Divisional Manager, Hajari Chambers,
Station Road, Aurangabad.
2. Kaleem Ahmed khan
Age:Major, Occu.:Owner of Minidor,
Tq. Khultabad, Dist. Aurangabad
3. Sayed Dada S/o. Syed Umer,
Age: Major, Occu.:Driver,
R/o. Sadatnagar, Aurangabad
(Appeal stood dismissed as against
Resp.2 & 3 vide Registrar's order
dated 10/01/2012.)
RESPONDENTS
---
Mr.Anilkumar B.Dhongde, Adv. For Appellant;
Mr. Sudhir V.Kulkarni, Adv. For Resp.no.1.
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2 FA 658/2010 & 490/2010
WITH
FIRST APPEAL NO.490 OF 2010
National Insurance Company Ltd.,
Through its Divisional Office,
Divisional Manager, Hajari Chambers,
Station Road, Aurangabad
APPELLANT
VERSUS
1. Revanand S/o. Vasudeo Chaturvedi
Age: 33 years, Occu.: Service as
Police Constable,
R/o. Plot No. 9, Sukhashanti Nagar,
Mantha Naka Road, Jalna.
2. Kaleem Ahmed khan,
Age Major, occu.: Owner of Minidor
Tq. Khultabad, Dist. Aurangabad
3. Syed Dada S/o. Syed Umer,
Age Major, occu.: Driver,
R/o. Sadatnagar, Aurangabad
RESPONDENTS
-----
Mr. Sudhir V.Kulkarni, Adv. For Appellant;
Mr. Anilkumar B.Dhongde, Adv. For Resp.no.1.
None for Resp.Nos. 2 & 3 though duly served.
-----
CORAM : P.R.BORA, J.
DATE :
17 th
October,2016.
3 FA 658/2010 & 490/2010
ORAL JUDGMENT:
1) Since Mr. S.V.Kulkarni has instructions
to appear in FA No.658/2010 on behalf of
Respondent No.1, the appearance of
Mr.Kadethankar, who was earlier appearing, stands
discharged.
2)
Since both these appeals are arising out
of the judgment and order passed by Motor
Accident Claims Tribunal, Aurangabad, (for short
the Tribunal) in MACP No.274/2006, decided on 12 th
March, 2009, common arguments were heard, and I
deem it appropriate to decide both these appeals
by common reasoning.
3) First Appeal No.490/2010 is filed by
National Insurance Company, which was Respondent
No.2 in the claim petition, whereas First Appeal
No.658/2010 is filed by the original claimant
seeking enhancement in the amount of compensation
as awarded by the Tribunal.
4 FA 658/2010 & 490/2010
4) The aforesaid claim petition was filed
by appellant in FA No.658/2010 seeking
compensation from the owner and insurer of
Minidor Auto rickshaw bearing registration No.
MH-20/W-337 for the injuries caused to him in an
accident happened on 5th March, 2005, having
involvement of the aforesaid Minidor auto
rickshaw.
. It was the contention of the appellant
that the aforesaid accident had happened because
of negligence on the part of driver of said auto
rickshaw. The claim petition was resisted by the
National Insurance Company, which has filed First
Appeal No.490/2010. It was the contention of
said insurance company before the Tribunal that
the alleged accident had happened because of the
composite negligence of driver of the Minidor
auto rickshaw and the claimant Revanand
Chaturvedi. When the accident had happened,
claimant Revanand was proceeding from Jalna to
Aurangabad on his motorcycle and was dashed by
the said auto rickshaw. According to the
5 FA 658/2010 & 490/2010
contentions raised by the insurance company, the
aforesaid accident was head on collision and for
causing the said accident, motorcycle rider as
well as driver of the said auto rickshaw were
negligent in equal proportion. The further
objection raised by the insurance company was as
about percentage of permanent disability incurred
by claimant Revanand.
5) The Tribunal, after having assessed the
documentary and oral evidence brought before it,
held claimant Revanand entitled for the
compensation of Rs.3,88,924/- inclusive of NFL
compensation jointly and severally from the
driver, owner and insurer of the Minidor auto
rickshaw. Thus, though the National Insurance
Company has taken a plea of contributory
negligence on the part of claimant Revanand, the
learned Tribunal recorded a finding that the
alleged accident happened because of the sole
negligence on the part of the driver of the said
Minidor auto rickshaw. Aggrieved by the finding
6 FA 658/2010 & 490/2010
so recorded and the amount of compensation so
awarded, the insurance company has filed the
aforesaid appeal before this Court.
6) Claimant Revanand has also filed an
appeal seeking enhancement in the amount of
compensation awarded to him by the Tribunal.
7)
Shri Kulkarni, learned Counsel appearing
for the appellant - insurance company submitted
that though there was sufficient evidence
existing on record, evidencing that the alleged
accident was head on collision and further that
in occurrence of the alleged accident, negligence
on the part of claimant Revanand was also the
contributory factor, the Tribunal has erred in
not holding the claimant Revanand negligent in
occurrence of the alleged accident and has
erroneously held the driver of the auto rickshaw
solely responsible for causing the alleged
accident.
. The learned Counsel took me through the
7 FA 658/2010 & 490/2010
description of the scene of occurrence, as is
revealing from the spot panchanama, and submitted
that from the locations of the vehicles, the only
inference emerges that the alleged accident had
happened because of the negligence on part of
both; the motorcycle rider and the driver of the
Minidor auto rickshaw. The learned Counsel,
therefore, submitted that the impugned Award
needs to be modified to the aforesaid extent and
the claimant Revanand needs to be held equally
responsible in occurrence of the alleged
accident.
. In so far as quantum is concerned, the
learned Counsel submitted that the Tribunal has
solely relied upon the testimony of the claimant
and has awarded the compensation on higher side.
The learned Counsel further submitted that the
disablement was not legally proved by the
claimant and as such, no reliance could have been
placed on the disability certificate placed on
record by the claimant.
8 FA 658/2010 & 490/2010
8) The learned Counsel appearing for the
respondent i.e. Original claimant supported the
impugned judgment and award. The learned Counsel
submitted that the Tribunal has, in fact, awarded
inadequate amount to the claimant.
9) After having considered the submissions
advanced by the learned Counsel appearing for the
respective parties and on perusal of the
documents placed on record, apparently I do not
see any reason to cause any interference in the
impugned Award. Though it was vehemently argued
by learned Counsel appearing for the insurance
company that from the spot panchanama it could
have been reasonably inferred by the tribunal
that the alleged accident had happened because of
the negligence on part of the drivers of both the
vehicles. From the situations of the vehicles on
the spot of occurrence, it is difficult to accept
the submission so made by the learned Counsel.
The Tribunal has correctly analysed the evidence
on record and has held the driver of the Minidor
9 FA 658/2010 & 490/2010
auto rickshaw solely responsible for occurrence
of the alleged accident. From the material on
record, it is difficult to accept the submission
made by the learned Counsel appearing for the
insurance company that alleged accident was head
on collision. From the scene of occurrence,
there is every reason to believe that the Minidor
auto rickshaw possibly entered on a wrong side
and gave dash to the motorcycle of the claimant
Revanand. Secondly, if it was the contention of
the insurance company that in causing the
accident in question, claimant Revanand was
equally responsible, the insurance company must
have proved the said fact by leading a positive
and cogent evidence there for. Admittedly, no
such evidence was adduced by the appellant
insurance company. I, therefore, do not see any
merit in the submissions so made on behalf of the
insurance company.
10) On careful reading of the impugned
judgment and the other material on record, it
10 FA 658/2010 & 490/2010
appears to me that the Tribunal has recorded a
correct finding that the alleged accident had
happened because of sole negligence on the part
of driver of the Minidor auto rickshaw and no
blame can be attributed on part of claimant
Revanand.
11) In so far as quantum of compensation is
concerned, the submissions made on behalf of the
appellant insurance company are liable to be
rejected at the threshold. The Tribunal has
appropriately determined the amount of
compensation payable to the claimant Revanand.
In no case it can be said that the Tribunal has
awarded exorbitant amount of compensation. Thus,
there seems no substance in the appeal filed by
the insurance company and the same deserves to be
dismissed and it is accordingly dismissed,
however, without any order as to costs.
12) In the appeal filed by the claimant,
though it is the contention of the claimant that
11 FA 658/2010 & 490/2010
the Tribunal has not determined the amount of
compensation properly, the contention so raised
has not been substantiated by him. While
determining the amount of compensation, the
Tribunal has properly considered the evidence
brought on record and has accordingly determined
the amount of compensation. No such material is
placed on record by the claimant Revanand in
support of his claim to enhance the amount of
compensation. The appeal, therefore, fails and
is accordingly dismissed.
13) The learned Counsel appearing for the
original claimant submitted that the insurance
company has deposited certain amount in this
Court towards satisfaction of the impugned Award.
The learned Counsel further submitted that out of
the deposited amount, the claimant was permitted
by this Court to withdraw a sum of Rs.1,00,000/-
and the balance amount was directed to be kept in
Fixed Deposit Receipt.
12 FA 658/2010 & 490/2010
14) In view of the fact that the appeal
filed by the insurance company has now been
dismissed, the amount so deposited by it, shall
be paid to the claimant along with the interest
accrued thereon.
15) Both the appeals are dismissed with the
aforesaid observations.
ig Pending civil
application, if any, stands disposed of.
(P.R.BORA)
JUDGE
bdv/
