Bombay High Court
The United India Insurance ... vs Bashirkhan Gafarkhan on 7 June, 2017
Bench: V.K. Jadhav
1 FA 3.2003.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO.3 OF 2003
The United India Insurance Company Limited,
City Branch Office,
Malhar Cinema Building, 2nd Floor,
Gokhle Road, Naupada,
Thane-400 062. ...APPELLANT..
VERSUS
1. Bashirkhan S/o Gaffarkhan,
Age. 30 years, Occu. Nil,
R/o. Hari File, Khamgaon,
Tq. Khamgaon, Dist. Buldhana. .orig applicant.
2. Sk. Isa, S/o Sk. Chand,
Age. 55 years, Occu. Transport Business,
R/o. Atali, Tq. Khamgaon, Dist. Buldhana.
3. Amul Vasant Gule,
Owner & driver of truck No. MWD-2410,
Since deceased during the
pendency of this proceeding,
through his L.Rs. As per Ex. 23.
1. Anamika Amul Gole,
Age. 26 years, Occu. Service,
2. Abhay Amul Gole,
Age. 5 years, Minor through
mother No. 1
3. Vasant Bhikoba Gole,
Age. 61, Occu. Service,
(abated)
4. Sau. Yamunabai, w/o Vasant Gole,
Age. 57 years, Occu. Household,
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2 FA 3.2003.odt
All R/o. Remond Woolen Mills,
Staff Quarter, J.K. Gram,
Thane-6.
(abated)
4. Amul Vasant Gule,
(deleted)
5. The New India Assurance Company
(deleted)
6. The New India Assurance Company,
Branch Malkapur,
Dist. Buldhana. ...RESPONDENTS..
...
Mr D V Soman, Advocate for the Appellant.
Mr Kalyan Patil h/f Mr. S.R.Barlinge, advocate for
respondent No.1.
...
CORAM : V.K. JADHAV, J.
Dated: June 07, 2017
...
ORAL JUDGMENT :-
1. Being aggrieved by the judgment and Award
passed by the Member, Motor Accident Claims Tribunal,
jalgaon dated 18.2.1994 in MACP No.138/1987, the
original respondent no.6 insurer has preferred this
appeal.
2. Brief facts, giving rise to the present appeal are as
follows :-
a] The respondent-original claimant Bashirkhan was
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3 FA 3.2003.odt
serving as a driver with respondent Sk. Isa and on
21.2.1987 he was carrying oil cakes in the truck bearing
registration No.MHV-9594 from Khamgaon to
Nandurbar. On way, within the limits of village Parola at
about 6.00 am one truck bearing registration No.MWD-
2410 coming from the opposite direction in high speed
gave dash to the truck of the claimant Bashirkhan by
coming to the wrong side of the road. In consequence of
which, claimant Bashirkhan had sustained injuries to
his left hand, right leg, fracture on his left hand wrist
and right leg. He was required to take treatment for 3-4
months in the hospital. He had sustained fractured
injuries on his left wrist, which resulted into permanent
disablement. He was not in a position to use his hand
below wrist. He had to give up his service as driver. He
was getting Rs.1,500/- p.m. from respondent Shaikh
isa. Thus, the claimant Bashirkhan had approached
the Tribunal for grant of compensation under various
heads.
b] The driver cum owner of the truck bearing
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4 FA 3.2003.odt
registration No.MWD-2410 also died in the said
accident. His legal representatives are brought on
record.
c] Respondent No.5-Insurer of truck No.MHV-9594
filed written statement and strongly resisted the claim
petition with the contention that the accident had taken
place mainly on account of the rash and negligent
driving of the driver of the truck bearing registration
no.MWD-2410.
d] The appellant-insurer of the truck MWD-2410
strongly resisted the claim petition by filing his written
statement. It has been contended that there was no
negligence on the part of the driver of the truck MWD
2410 and that the accident had taken place on account
of rash and negligent driving by claimant Bashir Khan
himself.
e] The claimant Bashir Khan adduced oral and
documentary evidence in support of his contentions,
however, respondents including appellant-insurer have
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5 FA 3.2003.odt
not adduced any evidence. The learned Member of the
Tribunal had partly allowed the claim petition and
directed the owner of vehicle bearing registration
no.MWD-2410 and its insurer i.e. the appellant to pay
compensation of Rs.92,500/- alongwith interest with
proportionate costs. Hence, this appeal.
3. The learned counsel for the appellant insurer
submits that, this is a case of head on collision between
the said two trucks and claimant Bashirkhan was
driving the truck bearing registration No.MHV-9594
involved in the accident. Learned counsel submits that,
this is a case of composite negligence, however, tribunal
has fastened the liability on owner of truck bearing
registration No.MWD-2410 and its insurer i.e. the
appellant.
4. The learned counsel for respondent/original
claimant submits that, the claimant has examined
himself before the Tribunal and deposed that after
noticing the truck coming from the opposite direction in
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6 FA 3.2003.odt
speed, he had taken his truck to the left side and gave
signal to the driver of the truck bearing registration
no.MWD-2410. Even then, the driver of the said truck
has not reduced the speed of the truck and given dash
to his truck by coming on wrong side of the road.
Learned counsel submits that, evidence of the petitioner
is consistent with the contents of the spot panchnama
exh.38. The appellant-insurer has not examined any
witness to substantiate its contention that the claimant
was also responsible for the accident and as such, it is a
case of composite negligence. The learned Member of
the tribunal has therefore, rightly recorded the findings
in the affirmative to issue no.1 and thereby held that
the accident had taken place on account of the
negligence on the part of the driver of the vehicle
bearing registration no.MWD-2410 alone and that
claimant Bashirkhan had not contributed the negligence
in any manner. Learned Member of the Tribunal has
awarded just and reasonable compensation. No
interference is required.
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7 FA 3.2003.odt
5. On perusal of the evidence and impugned
judgment and Award, it appears that, the claimant has
deposed that, after noticing the said truck bearing
registration No.MWD-2410, he has taken his truck
towards left side of the road and also gave signal to the
driver of the said truck, however, the driver of the said
truck has not paid any heed to the said signal and given
dash to his truck by coming to the wrong side of the
road. On careful perusal of the contents of the spot
panchnama exh.38, it appears that the truck bearing
registration No.MHV-9594 being driven by the claimant
Bashirkhan found by the side of the tar road in turtled
condition. The claimant Bashirkhan has also deposed
that the said truck bearing registration No.MWD-2410
came to the wrong side in high speed and given dash to
his truck and in consequence of which, his truck was
thrown away from the road and turned turtled. It thus,
appears that his evidence is fully corroborated by the
contents of the spot panchnama exh.38. Though, the
driver side of both the vehicles got damaged in the
accident, in the judgment of acquittal Criminal Court
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8 FA 3.2003.odt
observed that, defence raised by the accused (Bashir
Khan) appears to be probable and only because death of
driver of other vehicle occurred, no inference about
negligence on the part of the claimant Bashir Khan
could be inferred. On the basis of evidence on record,
the learned Member of the Tribunal has rightly recorded
the findings that the accident took place due to rash
and negligent driving of the driver of truck bearing
registration No.MWD-2410 and that the claimant
Bashirkhan has not contributed the negligence.
6. So far as quantum of compensation is concerned,
the learned Member of the Tribunal has rightly assessed
the future loss of income on account of disablement
sustained by the claimant Bashirkhan.
7. In view of the same, I do not find any fault in the
judgment and award passed by the Tribunal. No
interference is required. There is no substance in the
appeal. Hence, following order.
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9 FA 3.2003.odt
O R D E R
I. First Appeal is hereby dismissed with
costs.
II. Respondent-original claimant is hereby
permitted to withdraw the compensation
alongwith accrued interest, if any,
deposited by the appellant-insurer before
this Court or the Tribunal.
III. Appeal is accordingly disposed of.
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( V.K. JADHAV, J. )
...
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