National Insurnace Co. Ltd., ... vs Pritesh Bhupendrakumar Patel & ...
2017 Latest Caselaw 5687 Bom

        J-fa533.05.odt                                                                                                       1/6


                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                           NAGPUR BENCH, NAGPUR


                                      FIRST APPEAL No.533 OF 2005


        National Insurance Co. Ltd.,
        Amravati Branch, Ajni Chowk,
        Amravati, through The Divisional,
        Manager, Nagpur Divisional Office II,
        Paul Complex, Ajni Square, Nagpur.                                            :      APPELLANT

                           ...VERSUS...

        1.    Pritesh Bhupendrakumar Patel,
               Aged 19 years, at present student,
               R/o. Ganesh Vihar No.2, Badnera Road,
               Amravati, Tah. & Distt Amravati.

        2.    Babanrao Namdeorao Zatale,
               Occupation : Truck owner,
               R/o. Ghat Ladki, Tah. Chandur Bazar,
               District Amravati.

        3.    Dhanraj Kisanrao Jumale,
               Aged 28 years,
               Occupation : Truck Driver,
               R/o. Khed , Tah. Morshi, Distt. Amravati.

        4.    Ratnakar Ramesh Potdar,
               Aged 17 years,
               Minor by his guardian father 
               Ramesh D. Potdar, R/o. Potdar Garden,
               Narhari Nagar, Tah. & Distt. Amravati.

        5.    The Oriental Insurance Company Limited,
               by its Branch Manager, in front of 
               Rajapeth Police Station, Amravati.

        6.    The Regional Transport Officer,
               through R.T.O., Amravati.                                               :      RESPONDENTS




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        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
        Shri D.N. Kukday, Advocate for the Appellant.
        Shri Dr. Anjan De, Advocate for the Respondent No.1.
        Shri Ashish W. Punikar, Advocate for the Respondent No.5.
        None for the Respondent Nos.2,3,4 and 6.
        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-


                                                       CORAM  :   S.B. SHUKRE, J.

th DATE : 7 AUGUST, 2017.

ORAL JUDGMENT :

1. This is an appeal preferred against the judgment and order

dated 13th April, 2005, rendered by the Motor Accident Claims Tribunal,

Amravati, in Motor Accident Claim Petition No.47/1996.

2. The respondent No.1 is the original claimant, while the

respondent Nos.2,3,4,5 and 6 are the original respondent Nos.1 to 5 and

the appellant is the original respondent No.6. The accident occurred on

25th August, 1995 at an intersection of two roads, one Maltekdi to

Chaparasipura road and other Circuit House to Badnera road. At the

time of accident, the respondent No.1 riding pillion a two wheeler

bearing registration No.MH-27-H-665 which was driven by the

respondent No.4, as a result of dash given to the two wheeler by a truck

bearing registration No.MWY- 6337, came under the wheels of the truck.

In this accident, the respondent No.1 lost his left heel pad of the left leg

and sustained disability permanently to the extent of 20%. The

respondent No.1 was required to incur expenses for his medical

J-fa533.05.odt 3/6

treatment and also for travelling to Mumbai from Amravati. The scooter

was insured with the respondent No.5, while the truck was insured with

the appellant. The truck was owned by the respondent No.2. The

respondent No.1, in order to claim compensation for the injury and

disability permanently suffered by him, filed an application under

Section 166 of the Motor Vehicles Act, which on merits of the case came

to be partly allowed by the Tribunal. The Tribunal granted compensation

of Rs.2,82,760/- inclusive of the compensation on no fault principle

along with interest at the rate of 9% p.a. by its award passed on

13.4.2005. Not being satisfied with the same, the appellant, the insurer

of the truck, involved in the accident is before this Court in the present

appeal.

3. I have heard Shri D.N. Kukday, learned counsel for the

appellant, Shei Anjan Dey learned counsel for the respondent No.1-

original claimant and Shri Ashish W. Paunikar, learned counsel for

resonant No.5 insurer of the scooter involved in the accident. Nobody

has appeared on behalf of the respondent Nos.2,3,4 and 6.

4. I have also gone through the record of the case including the

impugned judgment and order.

5. Now, following points arise for my determination are :

(i) Whether any liability could have been fastened upon the appellant ?

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                              (ii)     Whether   the   compensation   awarded   by   the
                                       Tribunal is just and proper ?

6. Although it has been contended on behalf of the appellant

that on the date of accident, the insurance policy, vide Exh.-33, issued in

respect of truck involved in the accident had not been transferred in the

name of respondent No.2 and thus there was no privity of contract

between the respondent No.2 and the insurance company i.e. the

appellant thereby exonerating the appellant of its liability under the

contract of insurance, I am of the view that this defence in the facts and

circumstances of this case, would not be available to the appellant. It is

an admitted fact that the respondent No.1, original claimant, was a third

party to the contract to the insurance and therefore, the insurance

company was statutorily liable to make good the loss occurred to such a

third party under the terms of its contract of insurance. This is also the

view taken by the Tribunal, and I do not find any illegality or perversity

in the same. The appellant, therefore, cannot escape its liability from

payment of compensation, if it is due to be payable on other counts. The

first point is answered accordingly.

7. About the quantum of compensation, I find that there is no

substance in whatever has been argued in this behalf on behalf of

appellant. It has been tried to be submitted that the compensation

awarded by the Tribunal is much on the higher side, especially when

J-fa533.05.odt 5/6

none of the doctors from the medical board which issued the handicap

certificate was examined by the respondent No.1. On going through the

impugned judgment, I find that the Tribunal has not granted any

compensation by taking into consideration the fact that the respondent

No.1 suffered permanent disability to the extent of 20%. What has been

granted by the Tribunal is a compensation of Rs.2,00,000/- on account of

pain and sufferings, mental shock and agony, experienced by the

respondent No.1 when he underwent the treatment for the grievous

injury that he sustained in the accident. There is, therefore, no substance

in the said argument of the appellant.

8. There is no dispute about the fact that the grievous injury

suffered by the respondent No.1 was in the nature of loss of heel pad of

his left leg and there is also no dispute about the fact that for treatment

of this injury, the respondent No.1 was required to be shifted to hospital

in Mumbai and remain hospitalized there for almost a week. The

Tribunal, considering all these facts, assessed the compensation on the

count of pain and sufferings, mental shock and agony to be at

Rs.2,00,000/- and rightly so. There has also been available on record

evidence showing incurring of specific expenditure by the respondent

No.1 on account of medical treatment, travelling charges and lodging

and boarding expenses, which were of Rs.57,760/- Rs.15,000/- and

Rs.10,000/- respectively. Thus, the total compensation that has been

J-fa533.05.odt 6/6

awarded by the Tribunal to the respondent No.1 is of Rs.2,82,760/-. I do

not see any illegality or perversity in such a determination arrived at by

the Tribunal. I also do not see any illegality in applying the interest at

the rate of 9% p.a. from the date of petition till realization of the

amount. The second point is answered accordingly. There is no merit in

the present appeal and it deserves to be dismissed.

9. The appeal stands dismissed.

10. The parties to bear their own costs.

JUDGE okMksns