Bombay High Court
United India Insurance Co.Ltd vs Indubai Arjun Patil And Ors on 4 January, 2018
Bench: M.S. Sonak
(1) 203-FA 145 of 2001
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO.145 OF 2001
WITH
CIVIL APPLICATION NO.2442 OF 2001
The United India Insurance
Company Ltd., Through its
Divisional Office, Divisional
Manager, United Indian Insurance
Company, Aurangabad. ..Appellant
Versus
1. Indubai w/o. Arjun Patil
Age: 27 yrs, Occu.: Household.
2. Gorakh Arjun Patil
Age: 10 yrs, Occu.: Education.
3. Pravin Arjun Patil
Age: 8 yrs., Occu.: Education.
4. Kashinath Chindhu Patil
Age: 60 yrs., Occu.: Nil
5. Dwarkabai w/o. Kashinath Patil
Age: 48 yrs., Occu.: Household
Petitioners No.2 and 3 are
minors through their natural
guardian petitioner No.1
Indbai.
All r/o.Sangmeshwar, Taluka
Pachora, District Jalgaon.
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(2) 203-FA 145 of 2001
6. Himmat Dhudku Sonawane
Age: 30 yrs., Occu.: Tractor Driver
R/o.Balad, Taluka Pachora,
District Jalgaon.
7. Ananda Bhatu Patil
Age: 45 yrs., Occu.: Tractor Owner,
R/o.A.P.Dhanore,
Taluka & Dist.Jalgaon. ..Respondents
...
Advocate for Appellant : Mr.S.V.Kulkarni
Advocate for Respondent Nos.1 to 3 & 5 : Mr.G.V.Wani
Advocate for Respondent No.7 : Mr.M.S.Deshmukh
...
CORAM : M.S.SONAK, J.
DATE : 4th JANUARY, 2018
ORAL JUDGMENT:-
1) Heard Mr.S.V.Kulkarni for the appellant. The
respondents, though served, neither present nor
represented. There is an endorsement on the memo of
appeal that the appeal stands abated as against the legal
representatives of respondent No.4 by order dated
12.10.2001.
(3) 203-FA 145 of 2001
2) Rather than going to the issue as to whether the
appeal can proceed as against remaining respondents or
not, Mr.S.V.Kulkarni was heard on merits of the appeal.
3) The challenge in the appeal is to the Judgment and
Award dated 19.8.2000 made by the Motor Accident Claims
Tribunal, Jalgaon, in Claim Petition No.363 of 1997.
Operative portion of the impugned award reads as
follows:-
"O R D E R
i. The petition is partly allowed.
ii. The respondent No.1 to 3 are jointly and
severally liable to pay the amount of
Rs.1,13,100/- (Rupees one lakh thirteen thousand
ono hundred only) Rupees 1,63,100/- including of
the amount of Rs.50,000/- on no fault basis) to
petitioner alongwith interest at the rate of 12
p.c.p.a. from the date of registration of
petition till realisation.
iii. Respondent No.1 to 3 should bear their own
(4) 203-FA 145 of 2001
costs and proportionate costs of the petitioners.
iv. After recovery of the amount, to each of the
petitioner No.4 & 5 an amount of Rs.10,000/-
should be given by crossed account payee cheque,
and an amount of Rs.25,000/- should be given to
the petitioner No.1 Indubai by crossed account
payee cheque,, and the remaining amount should be
divided equally amongst petitioner Nos.2 and 3
and their shares should be invested in fixed
deposits in Central Bank of India, Jalgaon for a
period till they attain majority, and the
petitioner No.1 Indubai will be entitled to get
the quarterly interest on the aid fixed deposit
amounts of the minor petitioners.
v. Award be drawn up accordingly.
Sd/-
A.N.DHUME
MEMBER, MAC TRIBUNAL
19.8.2000 JALGAON."
4) The appellant Insurance Company had been impleaded
as respondent No.3 in the Claim Petition. Aggrieved by
(5) 203-FA 145 of 2001
the impugned Award to the extent it imposes liability
upon the appellant, this appeal has been preferred.
Mr.S.V.Kulkarni, learned counsel for the appellant
submits that the Insurance Policy on the basis of which
the liability has been foisted upon the appellant was a
policy to cover risks arising to third parties. He
submits that the Insurance Policy does not cover any
liability arising out of death of the deceased, who was a
labourer travelling in a Tractor/Trailer. He submits
that since this aspect of the matter has not been
considered by the Tribunal, the impugned award to the
extent of foisting liability on the Insurance Company
warrants interference. He submits that the appellant
Insurance Company can have no grievance about liability
being foisted upon the owner and the driver of the
Tractor/Trailer, however, liability on the appellant
Insurance Company in terms of the policy taken of by the
owner was limited and did not extend to coverage of any
liability arising out of the death of Arjun Patil. For
(6) 203-FA 145 of 2001
this reason, Mr.S.V.Kulkarni submits that the impugned
order may be modified accordingly and the appellant
Insurance Company be exonerated from the liability
foisted upon it.
5) In the present case, the issues framed by the Motor
Accident Claims Tribunal reads as follows:-
"1. Do the petitioners prove that they are the
only legal representatives of the deceased
Gopichand @ Arjun Kashinath Patil ?
2. Do they further prove that said Gopichand
died in an accident which occurred on 28.11.95 at
about 5.30 p.m. on Nagardeola-Pimpalgaon road
near the field of Janglu Mahajan, which was
caused due to rash and negligent driving by
respondent No.1 of the tractor and trolley,
bearing No.MFR 1103 and MWD-8839 respectively
which is owned by respondent No.2 and insured
with respondent No.3. ?
3. Is there any contributory negligence ? If
(7) 203-FA 145 of 2001
yes, its effect on the claim ?
4. To what amount of compensation the
petitioners are entitled to, from whom and in
what proportion ?
5. What order ?"
6) Significantly, there was no issue framed as regards
the contention now raised by Mr.S.V.Kulkarni in appeal.
Accordingly, the record of proceedings were scanned to
see if such defence was ever raised by the appellant
Insurance Company in its written statement before the
Tribunal. On the perusal of the written statement, it is
seen that no such defence or contention was ever raised
by the appellant Insurance Company. For this reason,
there was no occasion to frame any issue of this nature.
7) On perusal of written statement, it is clear that
the only contention raised by the appellant Insurance
Company was that the deceased was himself negligent and
(8) 203-FA 145 of 2001
therefore, claimants are not entitled to claim any
compensation on account of demise of the deceased in the
accident involving the insured vehicle. Infact the
written statement admits the factum of the accident as
also the factum that the vehicle being covered under an
Insurance Policy issued by the appellant Insurance
Company. This is precise defence, which is reflected in
paragraph No.3 of the impugned award.
8) In so far as the issue of negligence of the deceased
is concerned, there is absolutely no evidence in support
of the same. Neither did the owner driver or the
Insurance Company led any evidence in the matter to prove
the aspect of negligence on the part of the deceased.
There is evidence on record on the basis of which the
Tribunal has rightly concluded that there was no
negligence, which can be attributed to the deceased.
9) The ground now sought to be raised by
(9) 203-FA 145 of 2001
Mr.S.V.Kulkarni in the course of this appeal is not pure
question of law. At the highest it is mixed question of
law and facts. In the absence of any such contention or
any such defence, the Tribunal cannot be faulted for not
framing such an issue. Besides, at this stage, it will
be quite harsh and unjust to permit the appellant
Insurance Company to raise such issue. The impugned
award was made in the year 2000. The deceased was a
young person. The claim is made on behalf of the widow,
children and the parents.
10) Accordingly, there is no case made out to interfere
into the impugned Judgment and Award.
11) The Appeal is therefore, disposed of with the
following order:-
ORDER
(I) The First Appeal No.145 of 2001 is dismissed.
( 10 ) 203-FA 145 of 2001
There shall be however, no order as to costs.
(II) As the First Appeal is dismissed, the Civil
Application pending therein is also disposed of.
(III) In case any amount is deposited in this
Court or before the Tribunal, the
respondents/claimants shall be entitled to
withdraw the same together with accrued interest
thereon, unconditionally.
(IV) Registry to transmit the record and
proceedings as well as an authenticated copy of
this order to the concerned Motor Accident Claims
Tribunal at Jalgaon, within a period of four
weeks from today.
(V) Upon receipt of such record and proceedings
and also authenticated copy of this order, the
Motor Accident Claims Tribunal to issue notice to
the respondents/claimants so as to facilitate
them with disbursal of the deposited amount with
accrued interest. This is necessary since none
of the respondents/claimants have appeared in
this Court either themselves or through their
( 11 ) 203-FA 145 of 2001
Advocate.
[M.S.SONAK, J.]
SPT/203-FA 145 of 2001
