Bombay High Court
Shamrao Baburao Dikale vs Rajendra Rupchand Malpani And Ors on 6 July, 2017
Bench: V.K. Jadhav
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930 FIRST APPEAL 1541 of 2007.odt
THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD.
FIRST APPEAL NO. 1541 OF 2007
Oriental Insurance Co. Ltd.
Divisional Office, 442 West
Mangalwar Peth, Solapur, through
its Authorised Signatory,
Mr. Akhtar s/o Abbas Halari,
Age 54 yrs, Occ. Service, Div.Manager,
Oriental Insurance Co. Ltd.
R/o Aurangabad. ... APPELLANT
(Orig. Resp. No.4)
V E R S U S
1. Shamrao Baburao Dikale,
Age 59 yrs, Occ. Agri / Business,
R/o. Tandulwadi, Tq. Kallam,
Dist. Osmanabad. Orig. Claimant.
2. Rajendra Rupchand Malpani,
Age 55 yrs, Occ. Business,
R/o Shantiniketan Colony,
Near S. T. Depot, Latur.
3. Sharnny Parmeshwar Swami,
Age 53 yrs, Occ. Pvt. Service,
R/o Kothali, Tq. Omerga,
Dist. Osmanabad.
4. National Insurance Co. Ltd.
Shivaji Chowk, Latur. ... RESPONDENTS
(Orig. Claimant and Resp. 1 to 3)
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930 FIRST APPEAL 1541 of 2007.odt
...
Mr. Dhananjay Deshpande, Advocate for Appellant.
Mr. V. D. Sapkal, Advocate for Respondent No.1.
None present for Respondent No.2.
Mr. Rupesh Bora, Adv. h/f Mr. P. P. Fafna, Advocate for Respondent No.4.
...
WITH
CROSS OBJECTION (STAMP) NO. 8669 OF 2008
IN
FIRST APPEAL NO. 1541 OF 2007
Shamrao Baburao Dikale,
Age 58 yrs, Occ. Agri / Business,
R/o. Tandulwadi, Tq. Kallam,
Dist. Osmanabad. ... APPELLANT
(Orig. Claimant)
V E R S U S
1. Rajendra Rupchand Malpani,
Age: Major, Occu: Business,
R/o Shantiniketan Colony,
Near S. T. Depot, Latur.
2. Sharnnya Parmeshwar Swami,
Age: Major, Occu: Private Service,
R/o Kothali, Tq. Omerga,
Dist. Osmanabad.
3. National Insurance Co. Ltd.,
Shivaji Chowk, Latur.
4. Oriental Insurance Co. Ltd.
Division Office, 442 West
Mangalwar Peth, Solapur ... RESPONDENTS
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930 FIRST APPEAL 1541 of 2007.odt
CORAM : V. K. JADHAV, J.
DATE : 06th July, 2017.
ORAL JUDGMENT:
. Being aggrieved by the judgment and award passed by
the learned Chairman of the Motor Accident Claims Tribunal,
Osmanabad dated 27th December, 2006 in MACP No.130 of 1996,
original Respondent No.4 / oriental insurance company has preferred
this appeal.
2 Brief facts giving rise to the first appeal are as follows:
a) Respondent No.1 / original Claimant claims to be
the owner of Taxi Car No.MH-25/9030. On 4th
June, 1995, he was driving the said car on
Osmanabad to Kallam road in slow speed from
correct left side of the road. At the relevant time,
one tractor bearing registration No.MHZ-8754
coming from the opposite direction, gave dash to
the said car. In consequence of which, the
occupants of the car as well as Respondent No.1
/ Claimant sustained the injuries and also the
930 FIRST APPEAL 1541 of 2007.odt
said car was totally damaged in the accident.
The said car is insured with the present
Appellant. Respondent / original Claimant has
approached to the Tribunal by filing MACP
No.130 of 1996 for grant of compensation for the
damage caused to the car. It has been
contended in the claim petition that Respondent /
original Claimant had purchased the said car in
the year 1994 for Rs.3,00,000/- and it was
comprehensively insured with the present
Appellant. Respondent No.1 / original Claimant
has also sustained loss of earning because of
total damage to the car. The loss of income is
about Rs.1,00,000/-. Thus, Respondent / original
Claimant is entitled to the damage of
Rs.4,00,000/- including the price of the car.
According to the Respondent / original Claimant
all the Respondents including the present
Appellant are liable to pay the compensation
jointly and severally.
930 FIRST APPEAL 1541 of 2007.odt
b) Original Respondent No.1 / owner of the tractor
failed to appear and contest the claim petition.
Respondent No.2 / driver of the tractor also failed
to contest the claim petition.
c) Original Respondent No.3 / Insurer of the tractor
has strongly resisted the claim petition by filing
written statement. It has been contended that
the driver of the car is solely responsible for the
accident and the driver of the tractor is not
responsible for the accident. It has also been
contended that the tractor attached to the trolley
was used for commercial purpose and as such,
there has been breach of the specified conditions
of the policy.
d) The Appellant / Insurer has also strongly resisted
the claim petition by filing written statement. It
has been contented that the driver of the car was
no having valid and effective driving licence to
drive the car and as such, there has been breach
930 FIRST APPEAL 1541 of 2007.odt
of policy conditions. It has been contended that
the accident occurred because of the fault of the
car driver and as such, the Claimant is not
entitled to claim the damages.
e) Original Claimant has adduced the evidence in
support of his contentions. The Respondents
including the present Appellants have not
adduced any evidence. The learned Chairman
of the Motor Accident Claims Tribunal,
Osmanabad vide its impugned judgment and
award dated 27th December, 2006 in MACP
No.130 of 1996 partly allowed the claim petition
and thereby directed the original Respondent
Nos.1 to 3 to pay half of the amount of damages
whereas the Appellant is directed to pay
remaining half of the amount of damages.
Respondent No.3 / Insurer of the tractor further
held to be entitled to recover from original
Respondent No.1 the amount required to be paid
to the Claimant / Petitioner. Hence, this appeal.
930 FIRST APPEAL 1541 of 2007.odt
3 The learned counsel for Appellant / Insurer submits that
the Tribunal has no jurisdiction to decide the own damage claim. The
learned counsel submits that the Tribunal has recorded the finding
about the contributory negligence and further held that the drivers of
both the vehicles are equally responsible for the accident. The
learned counsel submits that if the driver of the car is held to be
equally responsible for the accident, then the Appellant, which is the
Insurer of the car, is not liable to pay any compensation to that extent
and the owner / driver of the other vehicle i.e. tractor and its Insurer
are at the most liable to pay the compensation. The learned counsel
submits that OD claim filed by the Respondent / original Claimant
came to be dismissed by the Appellant / Insurer way back in the year
2007 itself.
4 The learned counsel for Respondent / original Claimant
submits that the said car was insured by the Appellant under the
comprehensive policy and as such, the Tribunal has rightly directed
the Appellant to pay the compensation to the extent of the share as
determined by the Tribunal. The learned counsel submits that in the
alternative, Respondent No.1 / original Claimant may be granted a
930 FIRST APPEAL 1541 of 2007.odt
liberty to approach the Consumer Forum in case the OD claim is not
settled by the Appellant / Insurer. The learned counsel submits that
though the Claimant has claimed the compensation to the tune of
Rs.4,00,000/-, the Tribunal has awarded the compensation to the
extent of Rs.2,50,000/- only. The learned counsel submits that the
entire car was damaged in the accident and further the Claimant has
also lost his earnings due to the damage caused to the car and as
such, the Claimant is entitled for the entire amount of compensation
as claimed.
5 None present for Respondent Nos.2 and 3.
6 The learned counsel for Respondent No.4 / Insurer of the
tractor submits that considering the depreciation in the costs of car,
the Tribunal has rightly assessed the value of the car at the time of
accident approximately at Rs.2,50,000/-. Since the car was totally
damaged and it was beyond repairs, the Tribunal has considered the
said damage equal to the value of the car. The Claimant has failed to
adduce any evidence to the satisfaction of the Tribunal that his car
was kept idle for 11 months after the accident.
930 FIRST APPEAL 1541 of 2007.odt
7 On careful perusal of the pleadings, evidence and the
judgment and award passed by the Tribunal, it appears that the
Tribunal has recorded the finding in the affirmative to issue No.1 and
held that because of the rash and negligent driving of the driver of
tractor, the car was damaged. However, in the body of the judgment,
the Tribunal has discussed the evidence and recorded the finding that
the drivers of both the vehicles involved in the accident, contributed
the negligence equally and as such, they are liable to pay the
compensation equally. The learned counsel appearing for parties
have also not disputed that the Tribunal has recorded the finding of
contributory negligence and thereby held that the drivers of both the
vehicles are equally responsible for the accident. In these
circumstances, so far as the claim on account of the damages caused
to the car is concerned, Respondent / original Claimant is not entitled
to claim the compensation to the extent of his contribution in the
accident and the approach of the Tribunal is improper, incorrect and
illegal in directing the Appellant / Insurer alone to pay the
compensation to the extent of 50%. So far as the order passed
against Respondent Nos.1 to 3 to pay half of the amount of damages,
the same is not under challenge in this appeal and as such, the
930 FIRST APPEAL 1541 of 2007.odt
judgment and award passed by the Tribunal to the extent directing the
present Appellant to pay the remaining half of the amount of damages
is not sustainable in the eyes of law and the same is thus, liable to be
quashed and set aside. Even it appears from the common judgment
and award passed by the learned Member of the Motor Accident
Claims Tribunal, Osmanabad in MACP No.239 of 1995 and MACP
No.176 of 1996 arises out of the said accident that the Tribunal has
recorded the finding in the affirmative and fastened the entire liability
on the driver and owner of the tractor its Insurer. In the instant case,
the Tribunal has recorded the finding holding thereby both the drivers
responsible for the accident equally. Any way, the Appellant / Insurer
of the car is not liable to pay the compensation so far as own damage
to the car is concerned.
8 So far as the quantum of compensation is concerned, I do
not find any fault in the observations made by the Tribunal. The
Tribunal has awarded the compensation in respect of the damage to
the car equivalent to the value of the car after considering the
depreciation. Further, the Tribunal has also not deducted the salvage
value. In the circumstances, I do not find any fault in the impugned
judgment and award passed by the Tribunal to the extent of
930 FIRST APPEAL 1541 of 2007.odt
determination of the compensation. There is no merit in the cross-
objection. The cross-objection is liable to be dismissed. So far as
liberty claimed by the Respondent / Claimant is concerned, the same
cannot be granted since the Appellant / Insurer has already dismissed
the OD claim in the year 2007 itself. Hence, the following order:
O R D E R
I. The appeal is hereby partly allowed. No costs.
II. The judgment and award passed by the learned
Chairman of the Motor Accident Claims Tribunal,
Osmanabad dated 27th December, 2006 in MACP
No.130 of 1996, is hereby quashed and set aside
to the extent directing Respondent No.4 /
Insurance Company (present Appellant) to pay the
remaining half of the amount of damages. Motor
Accident Claims Petition No.130 of 1996 is hereby
dismissed as against Respondent No.4 / oriental
insurance company limited
III. Statutory amount if deposited, be refunded to the
Appellant / Insurer
930 FIRST APPEAL 1541 of 2007.odt
IV. Award be drawn up accordingly.
V. The cross-objection is hereby dismissed. No
costs.
VI. The appeal and the cross-objection are
accordingly disposed of.
[ V. K. JADHAV, J. ]
ndm
