Bombay High Court
Sbi General Insurance Co. Ltd., ... vs Seema Wd/O. Shivdas @ Surdas ... on 6 October, 2018
Bench: V.M. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
FIRST APPEAL NO. 841 OF 2018
APPELLANT : SBI General Insurance Co. Ltd.,
through its Divisional Manager,
Registered and Corporate Office,
"Natraj", 101, 102 and 103,
Junction of Western Express Highway
and Andheri-Kurla Road, Andheri (East),
Mumbai - 400 069.
VERSUS
RESPONDENTS : 1] Seema Wd/o Shivdas @ Surdas Wankhede,
Aged about 40 years, Occu. Housewife,
2] Siddhant Shivdas @ Surdas Wankhede,
Aged about 22 years, Occu. Education,
3] Sheetal Shivdas @ Surdas Wankhede,
Aged about 19 years, Occu. Education,
4] Master Suraj Shivdas @ Surdas Wankhede,
Aged about 17 years, Occu. Education,
Petitioner no.4 being minor is represented
by their Natural Guardian/next friend,
the mother, respondent no.1.
All the respondents are residing at :
Udkhed, Tq. Morshi, Distt. Amravati.
5. Bhulansingh S/o Khumansing Sanodiya,
Aged 34 years, Occu. Driver-cum-owner,
R/o Pl. No.438, Nari Road, Samarth Nagar,
Uppalwadi, Nagpur, Tq. & District Nagpur.
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Mr. A. J. Pophaly, Advocate for the appellant.
Mr. S. S. Alaspurkar, Advocate for respondent nos.1 to 4
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CORAM : V. M. DESHPANDE, J.
DATE : OCTOBER 06, 2018.
ORAL JUDGMENT
1. Heard. ADMIT. By consent of the parties, taken up for
final hearing.
2. I have heard Mr. A. J. Pophaly, the learned counsel for
the appellant and Mr. S. S. Alaspurkar, the learned counsel for
respondent nos.1 to 4/original claimants. None appears for
respondent no.5, though duly served by paper publication.
2. By the present appeal under Section 173 of the Motor
Vehicles Act, 1988, the appellant - SBI General Insurance Co. Ltd. is
challenging the order passed by the learned Member of Motor
Accident Claims Tribunal - 2, Amravati dated 13.4.2016 below Exh.5
in M.A.C.P. No. 366 of 2014 by which the learned Member of the
Claims Tribunal has allowed the application filed on behalf of
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respondent nos.1 to 4/claimants under Section 140 of the Motor
Vehicles Act and directed the appellant/Insurance Company to pay
Rs.50,000/- to the respondents within a period of Two months along
with the interest.
3. Respondent nos.1 to 4 are the wife and children of
deceased Shivdas @ Surdas Wankhede. The accident in question
took place on 10.9.2014. According to the claim petition under
Section 166 of the Motor Vehicles Act, the driver of the offending
vehicle truck bearing registration No. MH-31/CB-7742 was rash and
negligent and gave dash resulting into death of Shivdas. The claim
petition is contested by the appellant-Insurance Company by filing
written statement. Also the appellant has contested the application
under Section 140 of the Motor Vehicles Act. According to the
written statement, when the accident took place on 10.9.2014, on
that day the offending vehicle was not insured with the Insurance
Company inasmuch as the cheque issued by the owner of offending
vehicle towards premium was dishonoured and it was returned on
07.1.2014 for want of "Sufficient Funds". This particular aspect was
specifically pointed out by the appellant-Insurance Company at the
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time of decision of application under Section 140 of the Act as it can
be seen from the written notes of arguments filed on behalf of
Insurance Company opposing the application under Section 140 of
the Act, which is available from pages 16 to 19 of the compilation of
the present appeal. The impugned order is totally silent about the
contentions raised by the Insurance Company. The aspect of non-
existence of insurance policy is not at all considered by the learned
Member of the Claims Tribunal. Therefore, in my view, the order
passed below Exh.5 can not stand on the touchstone of law.
4. However, it will be the obligation on the part of the
Insurance Company to prove satisfactorily by adducing evidence that
on the day when the accident took place, that time the insurance
policy of the offending truck was not in existence. The said stage is
yet to come since in the petition under Section 166 of the Act,
though the issues are framed as stated by the learned counsel for the
Insurance Company, the evidence is yet to commence. In that view
of the matter, I pass the following order :
ORDER
1. The impugned order passed below Exh.5 by the
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learned Member, Motor Accident Claims Tribunal-2,
Amravati dated 13.4.2016 in M.A.C.P. No. 366/2014 is
hereby quashed and set aside.
2. The application (Exh.5) under Section 140 of the
Motor Vehicles Act filed by respondent nos.1 to
4/claimants is dismissed at this stage.
3. The amount of Rs.50,000/- which is already
deposited before this Court shall be transferred to the
Motor Accident Claims Tribunal, Amravati with a
direction and rider that the claimants will not be entitled
to withdraw the said amount.
4. It shall be open for the parties to the claim
petition under Section 166 of the Motor Vehicles Act to
prove in respect of existence of the insurance policy on
the day of the accident.
5. The Motor Accident Claims Tribunal-2, Amravati
is directed to dispose of the Motor Accident Claims
Petition No. 366/2014 within a period of Six months
from the date of receipt of this order.
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6. With this, the appeal is allowed and disposed of.
No order as to costs.
JUDGE
Diwale
