Bombay High Court
United India vs Shriram on 14 June, 2017
Bench: S.B. Shukre
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
First Appeal No. 498 of 2005
Appellant : United India Insurance Company Limited,
Wardha Branch, Wardha, through the
Regional Manager, Nagpur Regional Office,
Shankar Nagar Square, Nagpur
versus
Respondents : 1) Shriram son of Champatrao Salankar,
aged about 45 years, Occ: Business, resident
of Ram Nagar, Wardha
2) Dinesh Dyaneshwar Bonde, aged about
25 years, Occ: Driver, resident of Dapori,
Tahsil Deoli, District Wardha
3) Dhananjay son of Vinayakrao Wadatkar,
aged Major, resident of Dapori, Tahsil
Deoli, District Wardha
4) Aaratkhan s/o Ibrahim Khan, aged Major,
resident of Yeola/Borla, Tahsil Daryapur,
District Yavatmal
5) Kishor s/o Purushottam Mankar, aged
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Major, resident of Motinagar, Tahsil
and District Amravati
6) The Oriental Insurance Company
Limited, through its Divisional Manager,
Amravati Divisional Office, Amravati
Shri D. N. Kukday, Advocate for appellant
Shri P. B. Patil, Advocate for respondent no. 1
Shri Paunikar, Advocate for respondent no. 6
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Coram : S. B. Shukre, J
Dated : 14th June 2017
Oral Judgment
1. This appeal questions legality and correctness of the Award dated
6th February 2004 passed by the Member, Motor Accident Claims Tribunal,
Wardha in MACP No. 14 of 1997.
2. The claim under Section 166 of the Motor Vehicles Act, 1988 was
filed by respondent no. 1 in order to compensate him for the injuries suffered
by him in an accident which took place on 27.1.1996 on Deoli-Yavatmal Road
at village Isapur. At that time, respondent no. 1 was driving his motor-cycle
bearing registration No. MH-32/D-2227 which was insured with the appellant.
As he was proceeding on his motor-cycle by Deoli-Yavatmal road, a mini-bus
bearing registration No. MH-29-B1627 was taken a reverse direction by its
driver/respondent no. 2 and it gave a dash to the motor-cycle driven by
respondent no. 1. This mini-bus was owned by respondents no. 2 to 5 and
insured with respondent no. 6. This appeal, however, has been dismissed as
against respondent no. 4.
3. The injuries suffered by respondent no. 1 were in the nature of
fracture of bone and knee joint which resulted in permanent disability of left leg
reducing its functionality by 50%. Respondent no. 1 ran work-shop at Wardha.
His efficiency to run his work-shop properly took a severe beating. Therefore,
he claimed damages from the respondents.
4. The Tribunal partly allowed the claim petition and awarded
compensation of Rs. 80,235/- together with no-fault liability. Appellant and
respondents no. 2 to 5 were directed to pay an amount of Rs. 40,117/- jointly
and severally with interest @ 9% per annum from the date of petition till
realization. Not being satisfied with the same, the appellant is before this
Court in present appeal.
5. The main grounds of challenge in the present appeal are that
respondent no. 1 himself being a tort-feaser, should not have been directed to
pay part of compensation claimed by respondent no. 1 as the insurance policy
did not cover the own risk of the driver as no premium for the own risk of the
driver was there under the insurance policy. Shri Kukday submits that it is well-
settled law that when premium for own risk of the driver is not paid, the
Insurance Company cannot be held liable for whatever loss or damage the
driver of the vehicle may suffer. Her places reliance on the case of Dhanraj v.
New India Assurance Co. Ltd. & anr reported in III (2004) ACC 300 (SC) in
support of his contention.
6. Shri P. B. Patil, learned counsel for respondent no. 1 supports the
impugned Award submitting that there is no infirmity in the same. He submits
that no issue in this regard was framed and had it been framed, appropriate
finding would have appeared on record.
7. Shri Paunikar, learned counsel for respondent no. 6 adopts
arguments of learned counsel for respondent no. 1.
8. It is seen from the record of the case that even though a specific
defence regarding the Insurance Company not being liable to pay compensation
on the ground that the insurance policy was not covering the own risk of the
driver and that the negligent driver cannot seek to be compensated from the
Insurance Company for his own negligence was taken, the same was not at all
considered by the Tribunal. The insurance policy in question has been placed
on record and a bare perusal of the same at this stage shows that no extra
premium to cover own risk of the driver has been paid. The Tribunal has also
found respondent no. 1 as contributory to the over-all negligence which went
behind occurrence of the incident and thus, the Tribunal has considered
respondent no. 1 as tort-feaser. If this is so, as rightly submitted by learned
counsel for appellant, the question would arise, whether driver of the vehicle
can seek any compensation for his own negligence ? This aspect of the case has
not been considered by the Tribunal. The Tribunal, it is further seen, has also
not computed the percentage of negligence of the two groups of the tort-feasers
i.e. the appellant on one hand and respondents no. 2 to 6 on the other. This is
another illegality committed by the Tribunal. Such a judgment, therefore,
cannot be sustained in the eye of law and it deserves to be quashed and set
aside.
9. In the circumstances, the appeal is allowed. The impugned
judgment and ordr are hereby quashed and set aside. Matter is remitted back to
the Tribunal for decision afresh in the matter. The Tribunal shall frame the
additional issues which could be like -
(1) Whether the insurance policy covers the own risk of the owner/
driver ?
(2) Whether the United India Insurance Company Limited, the insurer of the
vehicle in question is liable to pay compensation ?
(3) Whether there is any need for apportioning the liability between
tort-feasers and if so, in what percentage ?
10. The amount deposited in this Court is permitted to be withdrawn
by the appellant with interest, if any. No order as to costs.
11. The claim petition shall be finally decided by the Tribunal within
three months from the date of appearance of the parties. Parties to appear
before the Tribunal on 27th June 2017.
S. B. SHUKRE, J
joshi
