Bombay High Court
M/S New India Assurance ... vs Santosh S/O Bhaskarrao Chintawar ... on 10 April, 2017
Bench: N.W. Sambre
Judgment 1 fa321.04, 107.04, 457.12,(j).odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
FIRST APPEAL NO.321/2004
WITH
FIRST APPEAL NO.107/2004
WITH
FIRST APPEAL NO.457/2012
............................................................................................................
FIRST APPEAL NO.321/2004
M/s.New India Assurance Co.Ltd. ...APPELLANT
Through its Divisional Manager,
Nagpur Divisional Office-III, Nagpur
--Versus ---
1. Santosh s/o Bhaskarrao Chintawar, RESPONDENTS
aged about 20 years, Occ. Education,
R/o Gondpipari, Tahsil Gondpipari,
District Chandrapur.
2. Dineshsingh Thakkar,
aged major, Occ.Transport Business,
R/o Civil Lines, Raipur (MP)
(Appeal dismissed against R.No.2 as per Registrar(J) order
dated12.07.2011)
3. Arunsingh s/o Sambusingh Gaur,
aged about 45 years, Occ. Business,
R/o Gondpipari, Tahsil Gondpipari,
District Chandrapur.
4. Oriental Insurance Company,
15, A.D.Complex, Mount Road, Sadar,
Nagpur(MS)
____________________________________________________________
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Judgment 2 fa321.04, 107.04, 457.12,(j).odt
Shri D.N.Kukday, Advocate for appellant.
Shri D.S.Wasnik, Advocate for respondent No.1.
Shri Anjan De, Advocate for respondent no.3.
Ms. Ujwala Nandeshwar, Advocate for R.No.4.
______________________________________________________________
FIRST APPEAL NO.107/2004
M/s.New India Assurance Co.Ltd. ...APPELLANT
Through its Divisional Manager,
Nagpur Divisional Office-III, Nagpur
--Versus ---
1. Suresh s/o Chanduji Nagare, RESPONDENTS
Aged about 24 years, Occ. Service,
R/o Gondpipari, Tahsil Gondpipari,
District Chandrapur(MS).
2. Dineshsingh Thakkar,
aged major, Occ.Business(Transport),
R/o Civil Lines, Raipur (MP)
(Appeal dismissed against R.No.2 as per Registrar(J) order
dated 23.12.2014)
3. Arunsingh s/o Sambusingh Gaur,
Aged about 45 years, Occ. Business,
R/o Gondpipari, Tahsil Gondpipari,
District Chandrapur.
4. Oriental Insurance Company,
15, A.D.Complex, Mount Road, Sadar,
Nagpur, District Nagpur(MS)
______________________________________________________________
Shri D.N.Kukday, Advocate for appellant.
Shri D.S.Wasnik, Advocate for respondent No.1.
Shri Anjan De, Advocate for respondent no.3.
Ms. Ujwala Nandeshwar, Advocate for R.No.4.
______________________________________________________________
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Judgment 3 fa321.04, 107.04, 457.12,(j).odt
FIRST APPEAL NO.457/2012
M/s.New India Assurance Co.Ltd. ...APPELLANT
Through its Divisional Manager,
Nagpur Divisional Office-III, Nagpur
--Versus ---
1. Prakash s/o Sambhaji Zade, RESPONDENTS
Aged about 20 years, Occ. Mechanic(Motor cycle)
R/o Gondpipari, Tahsil Gondpipari,
District Chandrapur(MS).
2. Dineshsingh Thakkar,
aged major, Occ.Business(Transport),
R/o Civil Lines, Raipur (MP)
(Appeal dismissed against R.No.2 as per Registrar(J) order
dated 20.03.2012)
3. Arunsingh s/o Sambusingh Gaur,
Aged about 45 years, Occ. Business,
R/o Gondpipari, Tahsil Gondpipari,
District Chandrapur.
4. Oriental Insurance Company,
15, A.D.Complex, Mount Road, Sadar,
Nagpur, District Nagpur(MS)
______________________________________________________________
Shri D.N.Kukday, Advocate for appellant.
None appears for respondent no.1 though served.
Shri Anjan De, Advocate for respondent no.3.
Ms. Ujwala Nandeshwar, Advocate for R.No.4.
______________________________________________________________
CORAM : N.W.SAMBRE,J.
DATED : 10.04.2017
Judgment 4 fa321.04, 107.04, 457.12,(j).odt
ORAL JUDGMENT
All these appeals are filed by the Insurance Company
under Section 173 of the Motor Vehicles Act questioning the award
dated 29.01.1997 awarding compensation in favour of the respondent
no.1-claimant, as the respondent no.1 in respective appeals have
suffered severe injuries in the accident in question.
2. In First Appeal No. 321/2004, the respondent no.1-
claimant filed Claim Petition No.92/1994 claiming compensation of
Rs.47,000/- on account of fracture injuries suffered by him to his
clavicle bones, ribs of chest in the fateful accident on 07.07.1993 which
took place on National Highway No.6, when the injured was travelling
in vehicle-Tempo Trax bearing RTO registration No. MP-20/H-0602
which was admittedly insured with the appellant, which dashed against
the tanker bearing RTO registration No. MP-24/A-9166.
3. In First Appeal No. 107/2004, the respondentno.1 has filed
Claim Petition No. 95/1994 claiming compensation of Rs.58,000/- on
account of injuries suffered by him to his right leg and left eye in the
aforesaid accident.
Judgment 5 fa321.04, 107.04, 457.12,(j).odt
4. In First Appeal No. 457/2012 the claimant therein has
filed Claim Petition No.92/1994 claiming compensation of Rs.45,000/-
on account of injuries caused to his right ear and leg in the aforesaid
accident.
5. In all these Claim Petitions, namely in Claim Petition No.
92/1994 the Motor Accident Claims Tribunal awarded compensation of
Rs.10,000/- with further interest @12% per annum, in Claim Petition
No.94/1994 compensation of Rs.40,000/- with 12% interest per annum
and in Claim Petition No.95/1994 compensation of Rs.25,000/ with
future interest @12% per annum.
6. Shri Kukday, learned counsel for the appellant in all these
appeals would urge that in spite of the fact that there is no liability or
responsibility of the Insurance Company to pay the compensation
particularly in the backdrop that the claimants are being gratuitous
passengers, the claim ought not to have been allowed. He would take
me through the entire proceedings and records including the evidence
of the various witnesses so as to substantiate his contention.
Judgment 6 fa321.04, 107.04, 457.12,(j).odt
7. It is required to be noted that all the claimants have
examined themselves and attributed rash and negligent driving to the
driver of the tempo trax and also to the driver of the Tanker so as to
substantiate their claims. Reliance is placed upon the copies of FIR,
Spot Panchanama and the summary as was filed in the investigation of
the accident in question, for which the police have registered Crime No.
43/1993. On the basis of evidence of driver of the tanker, who was
examined as a witness, the Tribunal concluded that it was the driver of
the Tempo Trax i.e. offending vehicle, who also lost his life in the
accident in question, was negligent in driving.
8. Having reassessed the entire evidence brought on record,
it is required to be noted that though claimant - Sunita in Claim
Petition No.93/1994 has stated about the payment of charges of travel
by the occupants, it is required to be noted that the liability of the
appellant-Insurance Company will not be correlated with the liability of
the vehicle owner. The said liability appears to be directly correlation
with the injuries suffered by the victim. It is then to be noted that
the claimants so as to substantiate their claim have produced on record
bills of payment of medical expenses which formed to be the base in
awarding the compensation. Once it is noted that the offending vehicle
Judgment 7 fa321.04, 107.04, 457.12,(j).odt
was insured with the appellant, just because the claimants were
travelling as gratuitous passengers that can not absolve the appellant of
its liability.
09. It is to be noted that no independent evidence is brought
on record or any witness is examined so as to substantiate its claim by
the appellant so as to prove its case of breach of the policy conditions,
as burden to do so is on the appellant.
As such, no infirmity or illegality could be noticed. All
these appeals lack merits and stand dismissed. No costs.
JUDGE
J.Andurkar..
