Bombay High Court
United India Assurance Co Ltd vs Sharda Mukesh Jaiswal And Ors on 27 April, 2017
Bench: V.K. Jadhav
1
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THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD.
FIRST APPEAL NO. 2065 OF 2008
United India Assurance Company Ltd.,
Through its Divisional Manager,
Adalat Road, Aurangabad. ... APPELLANT
(Original Respondent No.2)
V E R S U S
1) Sharda W/o Mukesh Jaiswal,
Age : 36 years, Occu: Household,
R/o Vinayaknagar, Nanded.
2) Rashmi D/o Mukesh Jaiswal,
Age : 15 years, Minor U/g Respondent No.1
3) Sanket S/o Mukesh Jaiswal,
Age : 12 years, Minor U/g Respondent No.1
4) Neha D/o Mukesh Jaiswal,
Age : 10 years, Minor U/g Respondent No.1
5) S. Avtarsingh S/o. S. Jogender Singh,
Aged : Major, Occu: Business,
(Owner of Car No. BLB 5888)
R/o Sindhi Colony, Nanded
(Died Through L.Rs.)
5A) Jaswantkour W/o S. Avtar Singh,
Age : 33 years, Occu: Household,
5B) Jitendrasingh @ Bittu S/o S. Avtar Singh,
Age : 25 years, Occu: Business,
5C) Shitalkour D/o S. Avtarsingh,
Age : 20 years, Occu: Education,
5D) Satbisingh S/o S. Avtarsingh,
Age : 19 years, Occu: Education,
All R/o Vinayaknagar, Nanded.
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8 FIRST APPEAL 2065 OF 2008.odt
6) Maharashtra State Road Transport Corporation,
Through it's Divisional Manager,
District Parbhani. ... RESPONDENTS
(Resp. Nos.1 to 4 Orig. Claimants and
Resp. No.5A to 5D & 6
Orig. Respondents No.A1 to A4 & 3 respectively)
...
Mr. S. G. Chapalgaonkar, Advocate for Appellant.
Mr. G. R. Syed, Advocate for Respondent No.4.
Mr. Manoj Shinde, h/f M. K. Goyanka, Advocate for Respondent No.6.
...
CORAM : V. K. JADHAV, J.
DATE : 27th April, 2017.
ORAL JUDGMENT:
. Being aggrieved by the judgment and award passed by
the learned Chairman of the Motor Accident Claims Tribunal, Nanded
dated 8th January, 2008 in MACP No.597 of 2002, original
Respondent No.2 / Insurer has preferred this appeal.
2 Brief facts giving rise to the present appeal are as follows:
a) On 23rd August, 2002, deceased Mukesh was
travelling in a motor car from Nanded to Aurangabad
and on Jintur-Aundhar road, one S.T. Bus coming
from the opposite direction dashed against the car. In
consequence of which, deceased Mukesh sustained
8 FIRST APPEAL 2065 OF 2008.odt
grievous injuries and ultimately succumbed to those
injuries.
b) The Claimants / legal representatives of deceased
Mukesh approached to the Motor Accident Claims
Tribunal, Nanded by filing MACP No.597 of 2002 for
grant of compensation under the various heads. It
has been contended in the claim petition that the
accident has taken place due to the negligence on the
part of the drivers of both the vehicles. Deceased
Mukesh was getting salaried income and the
Claimants were depending upon his income.
c) Respondent / owner has resisted the claim petition by
filing the written statement. It has been contended in
the written statement that the accident had taken
place due to the fault on the part of the driver of the
S.T. Bus and the vehicle involved in the accident
since insured with Respondent No.2, the
Respondent / owner is not liable to pay the
compensation.
8 FIRST APPEAL 2065 OF 2008.odt
d) Appellant / Insurer has also strongly resisted the claim
on the ground that deceased Mukesh was travelling in
the car as a gratuitous passenger in contravention of
the terms of insurance policy and as such, the
Appellant / Insurer is not liable to pay the
compensation.
e) Respondent No.3 / MSRTC has also denied the
liability on the ground that the driver of the car was
negligent and responsible for the accident and even
the crime was also registered against him. The
Claimants have adduced the oral and documentary
evidence in support of their contentions. Respondent
Nos.1 and 2 have not adduced any evidence.
However, Respondent No.3 / MSRTC has examined
the driver of the S.T. Bus.
f) The learned Chairman of the Tribunal has partly
allowed the claim petition and thereby directed
Respondent Nos.1 and 2 to pay jointly and severally
sum of Rs,7,50,000/- with interest. Hence, this
appeal by the original Respondent / Insurer of the car
8 FIRST APPEAL 2065 OF 2008.odt
involved in the accident.
3 The learned counsel for Appellant / Insurer submits that
the Claimants have preferred the claim against the owners of both the
vehicles involved in the accident. Petitioner No.1 Sharda has no
personal knowledge about the accident and she was not an eye
witness to the accident. In absence of any independent direct
evidence, the Tribunal has fixed the liability of negligence. So far as
second ground raised by the Appellant / Insurer in the appeal memo
that deceased Mukesh was travelling as a gratuitous passenger in the
vehicle car involved in the accident and as such, the Appellant /
Insurer is not liable to pay the compensation, the learned counsel has
fairly conceded that in terms of the policy conditions and the law laid
down by the Supreme Court in the case of National Insurance
Company Ltd. Vs. Balakrishnan and Anr., reported in, AIR 2013
Supreme Court 473 and in view of the circulars issued by four
companies of the General Insurance, the risk of the occupant of the
private car is covered in the comprehensive policy and as such the
policy issued in this matter, covers the risk.
4 I have also heard the learned counsel for Respondents /
8 FIRST APPEAL 2065 OF 2008.odt
Claimants and the learned counsel for Respondent / MSRTC.
5 Though Claimant No.1 has no personal knowledge about
the accident and though she was not an eye witness to the accident,
the Tribunal has taken into consideration the documentary evidence
placed on record. Furthermore, Respondent / MSRTC has also
examined the driver of bus. It appears from the contents of FIR and
spot Panchanama that the said S.T. Bus was at extreme left side of
the road at the time of accident and the said car went in wrong
direction and gave dash to the S.T. Bus. Furthermore, DW-1
Gyandev driver of S.T. Bus has also deposed in the similar manner.
According to him, the S.T. Bus was at extreme left side of the road
and it was the car, which came to the wrong side and gave dash to
the S.T. Bus. Thus, I do not find any fault in the findings recording by
the Tribunal that the driver of the car alone was responsible for the
accident and none else.
6 So far as the second point raised by Appellant / Insurer is
concerned, in view of the ratio laid down by the Supreme Court in the
case of National Insurance Company Ltd. Vs. Balakrishnan and Anr.
(supra), the risk is covered under the comprehensive policy issued by
8 FIRST APPEAL 2065 OF 2008.odt
the Appellant / Insurer in respect of the car involved in the accident.
The learned counsel for Appellant / Insurer has also fairly conceded
the same.
7 In view of the above, I find no substance in the appeal.
Hence, the following order:
O R D E R
I. The appeal, is hereby dismissed. In the
circumstances, there shall be no order as to the
costs.
II. The Respondents / Claimants are permitted to
withdraw the amount alongwith accrued interest if
deposited by the Appellant / Insurer before this
Court.
III. The appeal is accordingly disposed of.
[ V. K. JADHAV, J. ]
ndm
