Bismillah Shaikh Aslam And Ors vs Oriental Insurance Co. Ltd. And ...
2017 Latest Caselaw 3041 Bom

                                        1                      FA 3631/2016

        IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                   BENCH AT AURANGABAD

                       FIRST APPEAL NO.3631 OF 2016

  1)       Bismillah W/o. Shaikh Aslam,
           Age: 25 years, Occu. Household,

  2)       Ayesha D/o. Shaikh Aslam,
           Age: 9 years, Occu. Education,

  3)       Sofiyan D/o. Shaikh Aslam,
           Age: 6 years, Occu. Education,
           No.2 & 3 are minors, U/g of real 
           mother i.e. Bismillah W/o. 
           Shaikh Aslam

  4)       Shaikh Ulfat Bee W/o. Alam,
           Age: 50 years, Occu. Household,

  5)       Shaikh Alam S/o. Shaikh Bapuji,
           Age:61 years, Occu.Nil,
           All R/o. Koli Bodkha, 
           Taluka Paithan,
           District Aurangabad.             = APPELLANTS
                                        (Org. Claimants)

                               VERSUS

  1)       Oriental Insurance Company Limited,
           Through its Branch Manager,
           1st Floor of Dena Bank, 
           Subhash Chowk,
           Near Petrol Pump, Jalna,

  2)       Parmeshwar S/o. Punjaram Lihinar,
           Since Deceased, through his 
           Legal Representatives,

           2A. Sangeeta Wd/o. Parmeshwar Lihinar,
               Age:41 years, Occu. Household,
               R/o. At Post Katkheda, Taluka Ambad,
               District Jalna,




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                                          2                          FA 3631/2016


           2B      Rahul S/o. Parmeshwar Lihinar,
                   Age:26 years, Occu. Agriculture,
                   R/o. As above.             = RESPONDENTS
                                         (Org. Respondents)

                                   -----
  Mr. Mohit R.Deshmukh, Advocate for Appellants;
  Mr.PV Balkhande, Adv. For Resp.Nos.2-A and 2-B.
  Mr. MK Goyanka, Adv.for Respondent No.1.
                                   -----
                               CORAM :  P.R.BORA, J.

DATE :

12 th

June,2017.

PER COURT :

1) Heard. With consent, taken up for final

disposal at admission stage.

2) The present appeal is filed against the

judgment and Award dated 19th April, 2016 passed

by the Motor Accident Claims Tribunal, Jalna (for

short, the Tribunal) in MACP No.98/2015.

3) The appellants had filed the aforesaid

claim petition under the provisions of Section

163-A of the Motor Vehicles Act (for short the

Act), claiming compensation on account of the

3 FA 3631/2016

death of one Shaikh Aslam in a motor vehicle

accident happened on 9th April, 2015 having

involvement of a motor cycle belonging to present

Respondent No.2 and insured with present

Respondent No.1.

4) The Tribunal has passed the award only

against present Respondent Nos. 2-A and 2-B, i.e.

legal heirs of Respondent No.2, who was the owner

of the motor cycle involved in the alleged

accident.

5) Shri Deshmukh, learned Counsel appearing

for the appellants, submitted that the motorcycle

involved in the alleged accident belonging to

deceased Respondent No.2, was duly insured with

Respondent No.1-insurance company. The learned

Counsel further submitted that the Tribunal

though has answered all other issues in favour of

the appellants while passing the Award, has not

passed the award against Respondent No.1-

insurance company. The learned Counsel further

4 FA 3631/2016

submitted that the Tribunal has also not made any

discussion in the impugned judgment or assigned

any reasons for not passing the award against

Respondent No.1-insurance company. The learned

Counsel further submitted that in view of the

fact that the offending vehicle was duly insured

with Respondent No.1-insurance company, it was

liable to indemnify the insurer, i.e. deceased

Respondent No.2 and in such circumstances, the

Tribunal ought to have passed an order holding

deceased Respondent No.2 and Respondent No.1-

insurance company jointly and severally liable to

pay the amount of compensation. The learned

Counsel further submitted that in view of the

fact that the insurance was valid on the date of

accident, in fact, the liability was on the

insurance company to satisfy the award and there

was no reason for the Tribunal for not passing

the award against the insurance company. The

learned Counsel further submitted that there is

no dispute about the quantum of compensation as

awarded by the Tribunal or any other finding

5 FA 3631/2016

recorded by the Tribunal. The learned Counsel,

therefore, prayed for modifying the impugned

award thereby holding Respondent No.1-insurance

company jointly and severally liable to pay the

amount of compensation to the appellants herein.

6) Shri Goyanka, learned counsel appearing

for Respondent No.1-insurance company, was fair

enough in submitting that there appears an

inadvertent mistake on the part of the Tribunal

in not passing the award against the insurance

company. The learned Counsel submitted that in so

far as the quantum of compensation and liability

is concerned, Respondent No.1 - insurance company

has not disputing both the aspects. The learned

Counsel, therefore, submitted for passing

appropriate orders.

7) In view of the discussion, as above, it

appears that the learned Tribunal has apparently

erred in not passing the Award against Respondent

No.1 - insurance company. Perusal of the

6 FA 3631/2016

impugned judgment and award shows that the

Tribunal has also not made any discussion or

assigned any reasons for not passing the award

against the insurance company. In view of the

admitted facts that the offending vehicle was

duly insured with Respondent No.1-insurance

company on the date of the alleged accident, in

fact, there was no reason for not passing the

award against Respondent No.1-insurance company.

From the discussion made by the Tribunal, it is

quite clear that it has not exonerated the

insurance company from its liability to indemnify

the insured. It, therefore, appears that

inadvertent mistake has occurred by the Tribunal

while passing the impugned award and the award

has been passed only against owner of the

offending vehicle. The mistake so occurred needs

to be corrected and the appeal, therefore,

deserves to be allowed. Accordingly, along with

Respondent Nos.2-A and 2-B, Respondent No.1-

insurance company is jointly and severally held

liable to pay the amount of compensation to the

7 FA 3631/2016

appellants as determined by the Tribunal in terms

of the impugned Award. Save and except, making

the insurance company liable to pay the amount of

compensation to the appellants, the remaining

part of the Award needs no interference and is

kept as it is.

8) The first appeal stands allowed in

aforesaid terms. Pending Civil Application,if

any, stands disposed of.

(P.R.BORA) JUDGE

bdv/