The New India Assurance Co. Ltd., ... vs Hasinabano Sheikh Raffiuddin & 7 ...
2017 Latest Caselaw 2693 Bom

   fa497.08                                                                        1



             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           NAGPUR BENCH

                       FIRST APPEAL NO.  497  OF  2008

  The New India Assurance Co. Limited,
  through its Manager, Regional Office,
  Nagpur.
  (Insurer of Vehicle No. MH-28/B-5032)           ...   APPELLANT

                    Versus

  1. Hasinabano wd/o Sheikh Raffiuddin
     aged 25 years, occ. - Household,

  2. Assmabee d/o Sheikh Raffiuddin,
     aged 5 years,

  3. Sheikh Rahim s/o Raffiuddin,
     aged 3 years,

  4. Reshmabee d/o Sheikh Raffiuddin,
     aged 8 months,

       (Respondents 2 to 4 are under 
       Guardianship of their mother
       Respondent No. 1).

  5. Gulshanbee wd/o Sheikh Julfoddin,
     aged 55 years,

       Respondent Nos. 1 to 5 all residents
       of Balapur, Tah. Balapur, Dist. Akola.

  6. Jakerbee wd/o Sheikh Julfoddin,
     aged 55 years, occ. Household,
     r/o c/o Jabbarkhan Abbaskhan Pathan,
     Moulana Azad Nagar, Ward No. 1/2,
     Lonar, Tah. Lonar, District - Buldana.

  7. Divisional Controller, M.S.R.T.C.,
     Akola, Tahsil & District - Akola.
     (Owner of S.T. Bus No. MH-31/
     W-9801 - Mehkar Depot).


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    fa497.08                                                                          2



  8. S. Ramkrushna,
     aged - Major, occ. - Business,
     r/o Milind Nagar, Mehkar,
     Tahsil Mehkar, Dist. Buldana.
     (Owner of Vehicle No. MH-28/
     B-5032).                                       ...   RESPONDENTS


  Shri A.H. Patil, Advocate for the appellant.
                     .....
                                CORAM :  B.P. DHARMADHIKARI, J.

JUNE 01, 2017.

ORAL JUDGMENT :

The matter was called out yesterday. As nobody

appeared for the respondents, it came to be adjourned to today.

Today also, Shri A.H. Patil, learned counsel for the appellant is

only present for the Insurance Company. Nobody appears for

respondent Nos. 1 to 6 (claimants) and Respondent Nos. 7 or 8.

2. The judgment / award dated 24.01.2008 delivered

by the Motor Accident Claim Tribunal (M.A.C.T.), Akola in

Motor Accident Claim Petition (M.A.C.P.) No. 121 of 2004 has

been questioned in this appeal under Section 173 of the Motor

Vehicles Act, 1988.

3. The short submission of Shri Patil, learned counsel

is, in Claim Petition no allegations were made against the

vehicle 'Tipper" involved in the accident. The deceased i.e.

husband of Respondent No. 1 and father of other respondents

was driving that Tipper and claimants specifically urged that

Maharashtra State Road Transport Corporation (M.S.R.T.C.)

bus was being driven recklessly and negligently. He contends

that in this backdrop, issues at Exh. 25 are framed by the

M.A.C.T. on 16.07.2005. The issues also do not cast any

burden on the appellant. In this backdrop when final judgment

was delivered, without recording any apparent reasons, the

learned M.A.C.T. has found Tipper as also bus equally

responsible for the accident and apportioned liability between

them. The total claim of Rs.5 lakh was directed to be recovered

jointly and severally from the respondents. The Bus owner

M.S.R.T.C. did not challenge that judgment and it is the

Insurance Company which has approached this Court. As per

directions of this Court dated 28.08.2008 on Civil Application

No. 3474 of 2008, the amount as awarded has been deposited

with the Registry of this Court and by later order dated

27.01.2009, claimants have been permitted to withdraw part of

that amount.

4. Shri Patil, learned counsel, therefore, claims that

the impugned judgment is unsustainable and liable to be

quashed and set aside. He submits that balance amount which

may have been deposited with the Nationalized Bank should be

allowed to be withdrawn by the appellant and the respondent

Nos. 1 to 6 should be called upon to refund the amount which

they have withdrawn as per orders of this Court. He points out

that an undertaking has been furnished by them to this Court

on 28.04.2014.

5. The question which arises for determination is

whether the learned M.A.C.T. was justified in recording a

finding that the appellant - Insurance Company is jointly and

severally responsible to shoulder the liability towards

compensation ?

6. A perusal of Claim Petition as filed by the claimants

(Respondent Nos. 1 to 6), particularly paragraph No. 21-A

therein shows an assertion that the deceased Rafiyoddin s/o

Julfoddin was driving Tipper cautiously in moderate speed.

The M.S.R.T.C. Bus coming from opposite direction, dashed

against that Tipper as driver of that bus lost control over it and

it was in high speed. In the backdrop of these assertions on

16.07.2005, the M.A.C.T. has framed issues at Exh. 25.

Sr. No. Issues Findings

1. Do claimants prove that Raffiuddin s/o Yes Julfoddin died in a vehicular accident that took place on 20-1-2004 at about 19.30 hours on Mehkar- Sultanpur Road, one km. away from Sultanpur, Tq. Mehkar, District - Buldana, due to negligent driving of Bus No. MH-31/W-

980 by its driver, owned by respondent No.1 ?

2. To what amount of compensation As claimed claimants are entitled and from whom ?

3. What reliefs and award ? See the order made below.

7. Thus, Issue No. 1 expressly exonerates the appellant

from showing that "Tipper" was in any way not responsible for

said accident. The entire burden to prove negligence was on

the claimants and the burden was expected to be discharged by

showing that Bus driver was responsible for the accident. In

rebuttal, M.S.R.T.C. was supposed to lead evidence to

demonstrate that it was not negligent.

8. A perusal of entire judgment or award nowhere

shows any material to enable this Court to gather as to how the

appellant - Insurance Company and impliedly deceased Tipper

Driver is found in any way negligent in the said accident. The

discussion contained in paragraphs 13 & 14 of the impugned

judgment only shows certain inferences which are not based

upon any factual material. In the absence of such factual

matrix, the only inference could not have, in present facts

enabled the M.A.C.T. to hold the appellant responsible for

accident in any way.

9. In the operative order, joint and several liability has

been fastened, therefore, the M.A.C.T. ought to have recorded a

finding of other contributory or composite negligence after

commenting upon spot panchnama or other material. There is

no reference to spot panchnama and one cannot from the entire

judgment of M.A.C.T. comprehend as to how Tipper driver has

been held partially responsible for the accident. When the

claimants themselves exonerated Tipper and as the deceased

was driving that Tipper, M.A.C.T. ought to have recorded

appropriate finding. The finding could have been reached by

indicating that spot of accident was on wrong side of Tipper,

that Tipper had entered wrong side of the road or some other

material to indicate fault on Tipper driver as also Bus driver. It

appears that no witness examined by the claimants has deposed

on these lines.

10. In this situation, it is apparent that when the

claimants did not claim any compensation under Motor

Vehicles Act, from the appellant by showing that Tipper had in

any way contributed to the accident, by ordering joint and

several recovery the M.A.C.T. has denied the appellant an

opportunity to meet the case of contributory or composite

negligence.

11. The record shows that the appellant - Insurance

Company has deposited the amount of Rs.2,52,382/-

on 26.09.2008. It deposited the amount of Rs.3,39,370/- on

16.10.2008. The M.A.C.T. had awarded compensation of Rs. 5

lakh with 8% interest. Thus, the entire amount of

compensation with interest has been deposited by the appellant

- Insurance Company with the Registry of this Court. Because

of later orders of this Court dated 27.01.2009, 50% of this

amount has been allowed to be withdrawn by the claimants

after their furnishing an undertaking that in case the appeal is

allowed, the respondents would return that amount to the

Insurance Company with proportionate interest as this Court

may direct. The balance amount was directed to be invested in

any Nationalized Bank for a period of three years. The

affidavit/ undertaking filed vide Stamp No. 5416 of 2014 by

Hasinabano wd/o Sheikh Raffuddin and vide Stamp No. 5415

of 2014 by Gulshanbee wd/o Sheikh Julfoddin are available on

record. It, therefore, appears that 50% of the above amount is

already withdrawn by respondent Nos. 1 to 6.

12. In this situation, as I find the remand to M.A.C.T.

necessary, to give the appellant an opportunity to cross

examine the witness or then to lead evidence to show that

M.S.R.T.C. Bus was wholly responsible for the accident and the

appellant - Insurance Company is not expected to shoulder any

liability towards it, I am not inclined to direct the claimants to

deposit the amount already withdrawn by them. However, that

withdrawal is subject to further orders to be passed by the

M.A.C.T. after trial in M.A.C.P. The appellant - Insurance

Company is permitted to withdraw the amount invested by the

registry of this Court in the Nationalized Bank with interest

accrued upon it. This withdrawal was also be subject to further

orders of the M.A.C.T. in the matter.

13. According, First Appeal is partly allowed. The

judgment/ award dated 24.01.2008 delivered by the M.A.C.T.,

Akola, in M.A.C.P. No. 121 of 2004 is quashed and set aside.

The Claim Petition is restored back to the file of said Tribunal

for its fresh adjudication in accordance with law. The appellant

- Insurance Company is directed to appear before the M.A.C.T.,

Akola on 10.07.2017 and to abide by its further instructions in

the matter. However, there shall be no order as to costs.

           JUDGE                                                       JUDGE
                                               ******

  *GS.