The Dn Manager,New India vs Smt Anita Wd/O Manikarao
2017 Latest Caselaw 3641 Bom

                                                1




                IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                                   NAGPUR BENCH : NAGPUR



First Appeal No.  456 of 2005



Appellant               :          The Divisional Manager, New India 

                                   Assurance Company Limited, D.O. I, 

                                   Gopalkrishna Bhawan, Sitabuldi, Jhansi Rani

                                   Square, Nagpur

                                   versus

Respondents             :          1)   Smt Anita wd/o Manikrao Parate, aged

about 36 years, Occ: service, resident of Selu,

District Wardha

2) Wasudeo s/o Namdeorao Tivaskar,

aged Major

3) Vishwapal Janbandhu, resident of HIG

Flat No. 27/5, Priyadarshani Colony, Near

R.T. O., Nagpur

4) The Branch Manager, United India

Insurance Company Limited, City Branch,

Medical Square, Nagpur

5) Narayanrao Parate, aged about 68 years,

Occ: Business (appeal abates against him)

6) Kasabai w/o Narayanrao Parate, aged

about 60 years, Occ: Labour

Both residents of Sirsi, Tahsil Umrer,

District Nagpur

Shri A. J. Pophaly, Advocate for appellant

Shri S. N. Kumar, Advocate for respondent no. 1

Shri M. M. Kalar, Advocate for respondent no. 4

None appear for respondents no. 2 to 6

Coram : S. B. Shukre, J

Dated : 27th June 2017

Oral Judgment

1. This appeal challenges judgment and order dated 12 th April

2005 delivered by the Member, Motor Accident Claims Tribunal, Nagpur

in Claim Petition No. 278 of 1994 on limited aspects. One relates to the

contributory negligence on the part of the other vehicle - a truck bearing

registration number MH-31/5115 involved in the accident and the other

relates to the need for making apportionment of liability to first pay and

recover later between two insurers of the vehicles involved in the

accident. One of the vehicles involved in the accident is already

mentioned and the other one involved is a 5-wheeler goods auto bearing

registration No. MH-31-9587. The truck was insured with respondent no.

4 while 5-wheeler auto was insured with appellant herein. The accident

occurred in the night of 6.4.1994 at about 12.45 am near Khapri on

Wardha-Nagpur road. The accident took place when the 5-wheeler auto

by which scooter of the deceased Manikrao was being transported along

with the deceased, gave a dash to the rear side of the truck. Deceased

Manikrao was returning home the previous day on his scooter and as his

scooter broke down, it was required to be carried in the said 5-wheeler

auto for repairs to Nagpur.

2. Sofar as the challenge relating to contributory negligence of

the truck in question is concerned, as argued by learned counsel for the

respondents no. 1 and 4, I do not think that any different conclusion can

possibly be there than the one arrived at by the learned Member of MACT.

The learned Member has appreciated the entire evidence available on

record in this regard and found that the distance of 15 feet occurring

between the two vehicles at the time of accident was quite unsafe and,

therefore, the learned Member placed entire blame for the accident on the

head of the driver of 5-wheeler auto which was trailing behind the truck

in question. In other words, the negligence for occurrence of the accident

was completely attributed to the rashness shown by the driver of the 5-

wheeler auto in driving the vehicle at the relevant time. The conclusion

so drawn by the learned Member of the Tribunal, in my view, does

reasonably arise from the facts established on record although another

view could possibly also have been taken by the Tribunal. But, the view so

taken by the Tribunal certainly cannot be said to be highly improbable as

would call for any interference with the same by this Court. Therefore, I

am not inclined to upset the findings recorded by the Tribunal as regards

the complete negligence attributable to the driver of the 5-wheeler auto

in occurrence of the accident and the resultant death of Manikrao in the

fateful night of 6.4.1994.

3. This 5-wheeler auto was insured with the appellant. But,

deceased Manikrao was the owner of the scooter which was being

transported by 5-wheeler auto and as its risk was not covered under the

insurance policy, the appellant was exonerated of its liability to pay

compensation jointly and severally with the owner-cum-driver of the 5-

wheeler auto. Still, the learned Member of the Tribunal found it fit to

issue direction of pay first and recover later to the appellant. It is here that

the appellant would have a serious objection. Learned counsel for the

appellant would submit that for whatever reason be it, the appellant as an

insurer of the 5-wheeler auto in question has not been found liable to pay

compensation and, therefore, it ought to have been treated at par with the

insurer of the other vehicle involved in the accident, which is respondent

no. 4 in the present appeal and thus, the liability so fastened upon the

appellant, even for a temporary period of time, ought to have been

equally distributed between the two insurers.

4. Learned counsel for respondents no. 1 and 4 and learned

counsel for respondents no. 5 and 6 state that they would submit to the

decision that may be rendered by the Court and pray for passing of

appropriate order.

5. The point that now needs to be considered is, as to whether

or not even respondent no. 4 as an insurer of the other vehicle involved in

the accident could be made equally liable, albeit temporarily, to first pay

and later recover from the owner/driver of the 5-wheeler auto in

question. I think, if one considers the facts of the case in entirety, the

only conclusion that would arise from these facts would be that the

temporary liability or the responsibility in the instant case is required to

be equally placed upon the shoulders of the appellant as well as insurer of

the other vehicle involved in the accident i.e. respondent no. 4.

6. The reason for drawing the above conclusion is that once an

insurer is exonerated of its liability to pay the compensation for one

reason or the other, what is to be considered is the balance of

convenience between the claimants and the insurer and not the reasons

which go behind giving of clean chit to the insurer as regards its liability

to pay the compensation. In the instant case, one insurer i.e. respondent

no. 4 with whom the truck in question was insured has not been held

liable to pay any compensation for the reason that driver of the truck was

not found negligent in driving the vehicle at the relevant time. The other

vehicle i.e. 5-wheeler auto involved in the instant case was found

responsible entirely for causing of the accident because of its rash driving

by its driver. But, insurer of this vehicle has been given complete

exemption from its liability to pay compensation because the risk of the

deceased as owner of the goods being carried by the 5-wheeler auto at the

relevant time (before amendment to Section 147 of the Motor Vehiclew

Act, 1988), was not covered as no insurance premium to cover the risk

was admittedly paid. This would show that the reasons for non-fastening

of the liability upon the insurers of the two vehicles were different, but

the conclusions were the same which were that the insurers of both the

vehicles were not liable to pay any compensation.

7. In such case, the Tribunal would be required to consider, if

at all it chooses to direct one of the insurers to first satisfy the Award and

later recover the amount paid from the driver and owner of the vehicle

found negligent, as to where the convenience of the claimant to recover

the amount would lie and if it comes to the conclusion that the

convenience would be there where it would be, from the claimants view-

point, least expensive and most expeditious to recover the amount the

Tribunal must opt for the same. In the instant case, it appears from the

impugned judgment and order, no such effort has been undertaken by

the Tribunal and just because the driver-cum-owner of one vehicle was

found to be negligent, its insurer was chosen to satisfy the Award

although the insurer itself was exonerated of the liability. The Tribunal

did not consider the aspect of convenience in any manner and, therefore, I

find that the Tribunal has committed a serious error of fact and law in

fastening, though temporarily, the entire responsibility to pay the

compensation upon the appellant. In such a case, in my view, the

appellant as well as respondent no. 4 being the insurers presented to the

claimants the identical and equally impressive convenience factor and,

therefore, ought to have been directed to pay 50% each of the decretal

amount first to the claimants and then recover from the owner of the 5-

wheeler auto in question. Thus, the point involved in this regard is

answered accordingly.

8. The appeal is partly allowed. The impugned direction given

to the appellant regarding satisfying the Award first and recovering the

amount later on from respondent no. 2 needs to be modified and now, the

appellant and respondent no. 4 shall equally bear the liability to pay the

compensation awarded by the Tribunal and shall be at liberty to recover

the same from owner-cum-driver i.e. respondent no. 2. (See: National

Insurance Co. Ltd. v. Baljitkaur & ors reported in 2004 (2) Mh. L. J.

372; Oriental Insurance Co. Ltd. v. Nanjappan & ors reported in

(2004) 13 SCC 224 and National Insurance Co. Ltd. v. Kusum Rai & ors

reported in (2006) 4 SCC 250). The impugned judgment and order is

accordingly modified. Respondent no. 1 and respondent no. 6 are

permitted to withdraw the amount deposited in the Tribunal by the

appellant which represents the entire decretal amount. However,

respondent no. 4 United India Insurance Company is directed to pay 50%

of the said amount to the appellant within six weeks from the date of this

order failing which the appellant shall be at liberty to recover the same

from respondent no. 4 by initiating execution proceedings by treating the

order passed hereby as the one passed as an Award under Section 166 of

the Motor Vehicles Act. No costs.

S. B. SHUKRE, J

joshi