Mangal Laxman Kale And Another vs Bajaj Allianz General Insurance ...
2021 Latest Caselaw 6123 Bom

                                                                              CA.1216-2021.odt


            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       BENCH AT AURANGABAD

                     CIVIL APPLICATION NO.1216 OF 2021
                                     IN
                       FIRST APPEAL NO.1127 OF 2020

Mangal s/o. Laxman Kale and anr.                              ..Applicants

        Vs.

Bajaj Allianz General Insurance
Company Ltd., through its Manager                             ..Respondents

                              ----
Mr.N.B.Narwade, Advocate for applicants
Mr.S.S.Dargad, Advocate h/f Mr.S.G.Chapalgaonkar, Advocate for
respondent no.1
                              ----

                          CORAM : R.G. AVACHAT, J.

RESERVED ON : MARCH 10, 2021 PRONOUNCED ON : APRIL 06, 2021

ORDER :-

This is an application for withdrawal of the amount

deposited pursuant to the directions of this Court dated

18.08.2020.

2. The applicants are Class-I heirs of deceased - Laxman

Kale, who met with an accident involving motor vehicles on

16.06.2012. He died on 19.06.2012 of the injuries suffered as a

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result of the said accident. The applicants, therefore, preferred

a petition being M.A.C.P. No.528 of 2013, for compensation.

It was allowed on 03.10.2019 directing the respondents herein

to jointly and severally pay Rs.15,84,800/-. Respondent no.1

- Insurance Company preferred appeal (First Appeal No.1127

of 2020) against the award dated 03.10.2019. Pursuant to the

directions of this Court dated 18.08.2020, the insurance

company has deposited entire amount under the award in this

Court.

3. Learned counsel for the applicants would submit that

the deceased was the sole bread winner of the family. The

applicants are in dire need of the money for their maintenance.

It would take time for deciding the First Appeal. He, therefore,

urged for grant of the application.

4. Learned counsel for the respondent - Insurance

Company would, on the other hand, submit that the rider of

the motorcycle, which was insured by the insurance company,

did not hold effective and valid licence. The insurance company

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has, therefore, no liability to pay any compensation. As such,

it has a good case in the appeal. It was also submitted by

learned counsel that the Tribunal, on the same day, decided

another petition for compensation arising out of said petition.

Said petition was dismissed on merits on the ground of failure

to prove rash and negligence on the part of the motorcycle

rider. As such, there are two inconsistent findings recorded by

the same Judge.

5. It was an accident involving two motor vehicles

bearing registration nos.MH-45-M-5398 and MH-17-X-7011.

The deceased Laxman was the pillion rider on the motorcycle

bearing registration no. MH-17-X-7011. Since he was not

riding the motorcycle involved in the accident, there is no

question of his negligence or rashness, so as to hold the

applicants herein to be not entitled for any compensation. On

appreciating the evidence in the case, the Tribunal observed it

to be a case of composite negligence. In such a case, liability

is joint and several. The applicants herein were not parties to

the petition, which has been dismissed by the Tribunal on the

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same day. Same would not be, therefore, binding on the

applicants herein.

6. So far as regards defence of `no driving licence' is

concerned, the impugned judgment indicates the

respondent/insurance company to have not led any evidence in

this regard. It would take time to decide the First Appeal. The

deceased was said to be the sole bread winner of the family of

the applicants.

7. I am, therefore, inclined to allow the application in

terms of the following order :-

(i)                The application is allowed.


(ii)               The applicants are permitted to withdraw 75% of the

deposited amount. 50% of the amount be permitted to be withdrawn

on furnishing undertaking to the satisfaction of the Registrar

(Judicial) of this Court and 25% of the amount be permitted to be

withdrawn on furnishing solvent security/surety in the like amount.

(iii) The amount be paid to the applicants in the proportion

given in the award.

                                             5                               CA.1216-2021



(iv)           Civil    Application   for   withdrawal    of    amount        stands

disposed of accordingly.




                                                [R.G. AVACHAT, J.]


KBP