Bombay High Court
The New India Assurance Co. Ltd., ... vs Ramesh Fulsingh Pawar & Anor on 25 May, 2017
Bench: B.P. Dharmadhikari
Judgment. fa417.08
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
FIRST APPEAL NO. 417 OF 2008.
The New India Assurance Company
Ltd., through its Manager. ..... APPELLANT.
VERSUS
1.Ramesh s/o Fulsingh Pawar,
Aged about 34 years,
Occupation - Service.
2.Satish Ramesh Pawar,
Minor by Guardian Ramesh Pawar,
Both 1 and 2 resident of Kaulkhed,
Lahirya Nagar, Akola, Tq. and
District Akola. ..... RESPONDENTS.
--------------------------
Ms. Anita Singh, Advocate for the Appellant.
None for respondents - served.
--------------------------
CORAM : B.P. DHARMADHIKARI,
J.
DATE : MAY 25, 2017.
Judgment. fa417.08
ORAL JUDGMENT :
Heard Ms. Anita Singh, learned counsel for the
appellant Insurance Company. None appears for respondent
nos. 1 and 2. Respondent nos. 1 and 2 are claimants in Motor
Accident Claim Petition No.179/2003. Owner of the offending
vehicle - Jeep bearing registration No. MAF 2446 and its
driver, who were party respondents before the Motor Accident
Claims Tribunal are not joined as party respondents before this
Court in this First Appeal.
2. Accident to that jeep and death of Sou. Pavitra @
Savita in it is not in dispute. Her relationship with claimants is
also not in dispute. The Claims Tribunal has awarded total
compensation of Rs. 1,65,000/- to claimants and has asked
respondent nos. 1, 2 and 3 before it to pay it jointly and
severally with 8% interest. Respondent no.3 in proceedings
before the Claims Tribunal appears to be present Insurance
Company, though its name is not shown as such in copy of
Judgment. fa417.08
judgment provided along with the appeal memo.
3. Ms. Singh, learned counsel has submitted that
breach of policy condition was specifically pleaded in written
statement by pointing out that the said jeep was registered as a
private vehicle and it was carrying passengers for fare. Hence,
no liability could have been saddled on the appellant. In the
alternative and without prejudice, she submits that in any case
insurance company ought to have been permitted to recover
the amount of compensation from owner of the offending
vehicle.
4. Only question to be looked into by this Court is -
Whether course adopted by the claims Tribunal in the present
matter is just and proper ?
5. Present appeal has been admitted for final hearing
on 21.07.2008. This Court granted stay of coercive recovery in
execution proceedings subject to depositing 50% of the amount
awarded by the Claims Tribunal. Appellant has complied with
Judgment. fa417.08
the said order of deposit. They have completed deposit of 50%
of the amount on 06.08.2008 with the Registry of this Court. It
appears that the claimants/respondent nos. 1 and 2 have
thereafter not moved any application and have not withdrawn
the amount.
6. Claims Tribunal has in paragraph no.15 found that
though excess number of persons were occupying the jeep,
insurance company has not brought on record any material to
show that accident occurred because of this excess number. In
paragraph no.17, it has looked into the contention of charging
fare and use of jeep as a transport vehicle for carrying
passengers and declined to look into it on the ground that the
insurance company has not pleaded it in the written statement.
Perusal of paragraph no.4 of the Written Statement shown by
the learned counsel for the insurance company to this Court
(Exh.18), reveals that in "further pleas" (in written statement)
the insurance company has specifically pointed out
appointment of an inspector by it, investigation by him and fact
that 15 passengers were traveling by paying fare and claimed
Judgment. fa417.08
that this was in clear cut breach of policy. It also pointed out
that the jeep was a private jeep for own use of owner with
sitting capacity of 7 + 1 including driver. The Claims Tribunal,
therefore, is not correct in observing that the insurance
company has not raised this defence before it.
7. However, the facts show that the deceased was
killed in an accident and vehicle was insured with the
appellant. In the light of the facts noted above, interest of
justice could have been satisfied by permitting the appellant
insurance company to recover the amount of compensation to
be paid by it to respondents/claimants from owner of the
vehicle/jeep. Unfortunately in this appeal, the owner or its
driver are not joined as party respondents.
8. It has also been noted by this Court that the
claimants may not have withdrawn the full amount of
compensation awarded to them by the Claims Tribunal. At
least 50% of the amount of compensation is still not paid by the
Insurance Company.
Judgment. fa417.08
9. In this situation, taking over all view of the matter,
as full amount is not deposited by the insurance company and
it is not still received by the claimants, the appellant -
insurance company is directed to deposit the remaining amount
as per directions of the Claims Tribunal with the Motor
Accident Claims Tribunal, Akola within a period of three
months from today. If it deposits such amount, it is permitted
to initiate proceedings against owner of the offending vehicle
for claiming reimbursement of that amount.
10. With these directions and liberty, First Appeal is
disposed of. No costs.
JUDGE
Rgd.
