Bombay High Court
New India Assurance Co.Ltd vs Abdul Hakim Abdul Gafoor And Ors on 5 July, 2017
Bench: V.K. Jadhav
fa1221.03
-1-
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 1221 OF 2003
WITH
CIVIL APPLICATION NO. 5586 OF 2000
The New India Assurance Company Ltd.
having its registered and head office
at New India Assurance Building,
87, M.G. Road, Fort Mumbai and
having its Branch and Divisional
office, Rajendra Prasad Road
(Adalat Road, Aurangabad ...Appellant
versus
1. Abdul Hakim Abdul Gafoor
Age 48 years, Occ. Business,
R/o. Vaijapur, Taluka Vaijapur
District Aurangabad (Ori. Claimant)
2. Vijaykumar Nemichand Bothra
Age major, Occ. Business,
R/o. Vaijapur, Dist. Aurangabad
3. Dadarao @ Bandu Phulari ...Respondents
(deleted as per Court's order
dated 4.3.2004)
.....
Mr. D.S. Kulkarni, advocate for the appellant
Mr. P.P. Mandlik, advocate for respondent No.1
Mr. P.F. Patni, advocate for respondent No.2.
.....
CORAM : V. K. JADHAV, J.
DATED : 5th JULY, 2017
ORAL JUDGMENT :-
1. Being aggrieved by the judgment and award dated 22.10.1999
passed by learned Member, M.A.C.T. Aurangabad in M.A.C.P. No. 177
fa1221.03
of 1992, the original respondent No.3 insurer has preferred this appeal.
2. Brief facts giving rise to the present appeal are as follows:-
a) On 23.3.1991, the driver of the tractor was driving the tractor
attached with the trolley by left side of the road, in moderate speed on
Vaijapur Aurangabad road. On way, one matador, bearing registration
No. MH-04-C-217 coming from opposite direction, went to wrong side
of the road and gave dash to the tractor. In consequence of which, the
damages were caused to the said tractor. It has been alleged that the
tractor was completely broken. Steering wheel, radiator, gear box, filter,
silencer, dynamo and many parts of the tractor were completely
damaged. The respondent original claimant has thus approached the
Tribunal by filing M.A.C. No. 177 of 1992 for grant of compensation. It
has been contended in the claim petition that the claimant has incurred
expenses to the tune of Rs.86,090/- for repairs of the said tractor and
respondent Nos. 1 to 3 are jointly and severally liable to pay the same.
b) Respondent Nos. 1 and 2 have not filed any written statement
and therefore the hearing of claim petition ordered to be proceeded
without their written statement.
c) The appellant insurer has strongly resisted the claim petition by
filing its written statement. It has been contended that the driver of the
fa1221.03
tractor himself was negligent in driving it and there is no negligence on
the part of driver of matador. The appellant has denied the claim for
damages, as claimed in the petition. It has also been contended that
respondent No.2 driver of the matador was under influence of liquor
while driving the matador and as such the appellant insurer is not liable
to pay the compensation.
d) The respondent original claimant had adduced oral and
documentary evidence. The appellant insurer has not adduced any
evidence. Learned Member of the Tribunal, by judgment and award
dated 22.10.1999 partly allowed the claim petition and thereby directed
the respondents, including the appellant insurer, to pay jointly and
severally an amount of Rs.83,590/- with proportionate costs alongwith
interest @ 12% p.a. from the date of application. Hence, this appeal.
3. Learned counsel for the appellant insurer submits that this
appeal is restricted to the extent of quantum of compensation as
awarded by the Tribunal. The Tribunal has assessed the damages
caused to the tractor on the basis of spot panchnama Exh.24. Though
the respondent original claimant has produced on record the bills and
cash memos and even though those documents are exhibited by the
Tribunal, the respondent original claimant has not duly proved those
documents and as such there was no material before the Tribunal to
consider the damages caused to the tractor and the expenditure
fa1221.03
incurred towards repairs, except the bare words of the respondent
original claimant.
4. Learned counsel for the respondent original claimant submits
that the Tribunal has considered the spot panchnama Exh.24 to find out
the damages caused to the tractor. It has been specifically mentioned
in the spot panchnama Exh.24 that steering wheel, radiator gear box,
filter, silencer, dynamo and many parts of the tractor were completely
damaged. The respondent original claimant has produced on record
the cash memos Exh.26 to Exh.37. The appellant insurer has not raised
any objection when the Tribunal has exhibited those documents. Thus,
after considering the said documents Exh.26 to 37, the Tribunal has
awarded just and reasonable compensation. There is no substance in
the appeal and the same is thus liable to be dismissed.
5. On careful perusal of spot panchnama Exh.24, I find that the
damages caused to the tractor has been mentioned in the spot
panchnama in detail. Even roughly the amount of the said damages is
shown at Rs.85,000/- to Rs.90,000/-. It further appears from the record
that the Tribunal has exhibited the said cash memos and awarded
compensation as per the total amount of said cash memos placed on
record. On careful perusal of cash memos, I find that the serial number
of cash memos are correctly mentioned date wise and there is no
reason to discard the the cash memos. The appellant insurer, for the
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first time, raised objection to those documents on the ground that the
respondent claimant has not duly proved those documents and as such,
those documents cannot be read in evidence.
6. In view of above discussion, I do not find any fault in the
judgment and award passed by the Tribunal. There is no substance in
the appeal. The appeal is thus liable to dismissed. The appeal is
accordingly, dismissed with costs.
7. If the amount is deposited before this Court, the respondent
claimant is entitled to withdraw the same. The appeal is disposed of.
8. Pending civil application is also disposed of.
( V. K. JADHAV, J.)
rlj/
