Bombay High Court
The New India Assurance Co Ltd vs Mrs Jaishree Prakash Shete & Ors on 15 June, 2017
Bench: V.K. Jadhav
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 97 OF 2005
The New India Insurance Co. Ltd.
Through its Divisional Manager
Aurangabad
For Branch Manager,
Chandra Nagar, Latur ...Appellant
versus
1. Smt. Jaishree w/o Prakash Shete
Age 26 years, Occ. Household
2. Priyanka d/o Prakash Shete
Age 6 years, Occ. Education
3. Gayatri d/o Prakash Shete
Age 4 years, Occ. Nil
4. Pranav s/o Prakash Shete
Age 4 years, Occ. Nil
5. Shivdas s/o Shivram Shete
Age 58 years, Occ. Agriculture
6. Sushila s/o Shivdas Shete
Age 55 years, Occ. Household
All R/o. Latur
Claimant Nos. 2 to 4 are minors
U/g of their natural mother-claimant No.1
7. Sangmeshwar s/o Sureshappa These
Age 30 years, Occ. Business,
R/o. Kevalram Galli, Ausa,
District Latur ...Respondents
...
Advocate for Appellant : Mr. S G Chapalgaonkar
Advocate for Respondents : Mr. M.S. Karad h/f Mr. S.S. Thombre
.....
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CORAM : V. K. JADHAV, J.
DATED : 15th JUNE, 2017
ORAL JUDGMENT:-
1. Being aggrieved by the judgment and award dated 3.11.2004
passed by the Member, M.A.C.T. Latur in M.A.C.P. No. 26 of 2000,
original-respondent No.2 insurer has preferred this appeal to the extent
of finding recorded by the Tribunal that the accident was caused solely
on account of rash and negligent driving of driver of the jeep bearing
registration No. MH-24-A-7470 and that driver of the oil container is not
responsible for the accident.
2. Learned counsel for the appellant insurer submits that there was
head on collision between two vehicles i.e. Tata Sumo Jeep bearing
registration No. MH-24-A-7470 and oil container. After the accident,
driver of said oil container was fled away and the said container never
traced out. Learned counsel submits that in the claim petitions arise
out of the same accident, bearing Nos. 190 of 1999, 191 of 1990, 223
of 1999 etc., the Tribunal has recorded a finding of composite
negligence and fixed the interse liability amongst the said two vehicles,
involved in the accident at 50% each. In the instant case, the Tribunal
has only observed the damages caused to the jeep and since the
details of another vehicle are not recorded in the spot panchnama,
fastened the entire liability on the driver of jeep. Learned counsel
submits that entire approach of the Tribunal is incorrect.
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3. Learned counsel for the respondents-claimants submits that in
those connected claim petitions, the Tribunal has not recorded a finding
of composite negligence and on the other hand, recorded a finding in
affirmative to issue Nos. 2 and 3 and thereby held that the accident is
occurred due to rash and negligent driving on the part of driver of jeep.
The Tribunal in absence of any finding recorded to the issue, in the
body of judgment, considered the question of composite negligence and
held that drivers of both the vehicles are responsible for accident to the
extent of 50% each. Learned counsel submits that another vehicle was
not traced out and as such, application of theory of composite
negligence, looses its significance. Learned counsel submits that even if
interse liability is fixed between two vehicles as it was done in the
connected appeals by the Tribunal, no purpose would be served since
another vehicle was never traced out.
4. On careful perusal of the pleadings, evidence and the impugned
judgment and award passed by the Tribunal, it appears that on the
basis of evidence adduced by the parties, the Tribunal has recorded the
finding against the driver of Tata Sumo jeep involved in the accident
alone. In the light of judgment and award passed by the Tribunal in the
connected claim petitions, arise out of one and the same accident, even
if it is held that accident occurred on account of composite negligence
and even if the interse liability is to be fixed and determined, as it was
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done by the Tribunal in those similar claim petitions, no purpose would
be served since another vehicle Oil container was never traced out.
5. Learned counsel for the appellant-insurer has not challenged the
quantum of compensation, as awarded by the Tribunal. In view of the
same and in the light of discussion made in foregoing paras, I do not
find any substance in the appeal and the appeal is thus liable to be
dismissed. Hence, I proceed to pass the following order:-
ORDER
I. The appeal is hereby dismissed with costs.
II. The respondents claimants are permitted to withdraw the
amount, if deposited by the appellant insurer in this Court
alongwith accrued interest, if any.
III. Appeal is accordingly disposed of.
( V. K. JADHAV, J.)
rlj/
