The New India Assurance Company ... vs Smt. Sunanda Wd/O Harichandra ...
2021 Latest Caselaw 10480 Bom

 J53FA1230.10.odt                                                                    1

              IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                        NAGPUR BENCH, NAGPUR.


                          FIRST APPEAL NO. 1230 OF 2010


          The New India Insurance Company Ltd.,
          through its Regional Manager,
          Regional Office, 4th Floor,
          Dr. Ambedkar Bhavan, Seminary Hills,
          Nagpur
                                                                     ...APPELLANT

                                     VERSUS

 1.       Smt. Sunanda wd/o Harichandra Dighore,
          Aged about 29 yrs., Occ. Housework,

 2.       Ashish s/o Harichandra Dighore,
          Aged about 9 yrs., Occ. Nil,

 3.       Smt. Sayatra w/o Gomaji Dighore,
          Aged about 55 yrs., Occ. Housework,

          R. Nos. 1 to 3 all R/o Sonapur,
          P.O. Govindpur, Tah. Nagbhir,
          Dist. Chandrapur

          (R. No. 2 minor through his mother
          Natural guardian - Respondent No. 1.)

 4.       Shri Mahadeo s/o Ramchandra Gabhane
          Aged about 40 yrs., Occ. Agriculture,
          R/o. Sonapur, P.O. Govindpur,
          Tah. Nagbhir, Dist. Chandrapur

 5.       Shri Ramesh s/o Laxman Kamadi,
          Aged about - yrs., Occ. -,
          R/o. Near Bank of India, Nawargaon,
          Tah. Sindewahi, Dist. Chandrapur
                                                                 ...RESPONDENTS




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  J53FA1230.10.odt                                                                    2


 ______________________________________________________________

          Shri M.B. Joshi, Advocate for appellant.
          None for the respondents.
 ______________________________________________________________


                             CORAM : PUSHPA V. GANEDIWALA, J.
    DATE OF RESERVING THE JUDGMENT : JULY 28, 2021
 DATE OF PRONOUNCING THE JUDGMENT : AUGUST 06, 2021


 JUDGMENT :

Heard.

2. This appeal, filed under Section 173 of the Motor Vehicles

Act, 1988, is directed against the order dated 26/08/2010 passed by

the Motor Accident Claims Tribunal, Chandrapur in Claim Petition No.

51/2005 whereby the learned Tribunal has directed the appellant to

pay an amount of Rs.50,000/- (Rs. Fifty thousand only) with interest at

the rate of 7% per annum towards 'No Fault Liability' (hereinafter

referred to as NFL) under Section 140 of the Motor Vehicles Act, 1988.

3. The only question for consideration of this Court is

'whether the Tribunal has committed an error in directing the

appellant/Insurance Company to pay compensation of Rs.50,000/-

towards NFL under Section 140 of the Motor Vehicles Act, 1988'.

4. Shri M.B. Joshi, learned counsel for the appellant/

Insurance Company vehemently urged that the learned Tribunal has

committed an error in granting the compensation towards NFL. It is

submitted that the nature of the insurance policy was 'Act only policy',

and therefore, pillion rider is not covered. The Tribunal could not have

granted compensation towards NFL to the legal representatives of the

pillion rider, he being not a third party.

5. It is the case of the claimant before the Tribunal that on

20/02/2005 at about 7.30p.m. the deceased Harishchandra s/o Gomaji

Dighore was going with respondent No.4 on Hero Honda Motor Cycle

bearing No. MH-34/B-9023 as a pillion rider. It is stated that

respondent No.4 while driving the vehicle in a rash and negligent

manner, lost his control and the vehicle jumped after striking to stone

resulting in falling of pillion rider who received serious injuries and

died on the spot.

6. The legal representatives of the deceased i.e. respondent

Nos.1 to 3 filed a claim petition under Section 166 of the Motor

Vehicles Act, 1988 claiming compensation of Rs.3,00,000/- with an

application for interim compensation of Rs.50,000/- towards NFL. The

learned Tribunal on the basis of prima facie material before it, allowed

the application and directed the appellant/Insurance Company and the

owner to pay jointly and severally Rs.50,000/- to respondent Nos.1 to 3

towards NFL along with interest at the rate of 7% per annum from the

date of application till realization. This order is impugned in this

appeal.

7. The learned Counsel invited the attention of this Court to a

document in the compilation of the memo of appeal, which is

purported to be a document prepared from the cover note of the policy

and submitted that the policy was 'Act only policy'. It is the main

contention of the learned counsel for the appellant that deceased being

pillion rider and the Insurance policy is 'Act only policy', the Insurance

Company is not liable and, therefore, learned Tribunal could not have

directed the appellant/Insurance Company to pay Rs.50,000/- towards

NFL to the claimants/respondent Nos.1 to 3.

8. None present for the respondents. I have considered the

submissions made on behalf of the appellant and perused the record

and proceeding of the Court below.

9. At the outset, on bare perusal of document of policy i.e.

cover note which is placed on the record of the Tribunal at page No.46

and the document which is filed by the appellant in the compilation of

this Court, it appears that these documents do not tally with each other.

10. The document of policy at page No.46 of the Tribunal's

record does not show that it is an 'Act only policy'. Secondly, it being a

cover note, the terms and conditions of the contract of insurance are

not deducible from this document and, therefore, at the stage of

interim application, no findings can be recorded that the

appellant/Insurance Company is not liable to pay compensation,

considering the nature of the policy. A contentious and disputable issue

with regard to nature, terms and conditions of the policy is to be

decided by the Tribunal. The learned Tribunal decided the application

under Section 140 of the Motor Vehicles Act, 1988 on the basis of

prima facie material on record. The document i.e. cover note on page

No.46 in the Tribunal record, does not indicate that the policy is 'Act

only policy'. What is decided by the Tribunal is based on this

document. Furthermore, even if, at all at the end of the Trial, it is held

that the Insurance Company is not liable for want of coverage in the

insurance policy, the Insurance Company would not be left with no

remedy. The Insurance Company can very well recover the said

amount under the provisions of law.

11. In this view of the matter, I do not find merit in this appeal

warranting any interference in the impugned judgment of the Tribunal.

The appeal deserves to be dismissed and the same is accordingly

dismissed with costs.

12. R. & P. be sent back forthwith to the learned Tribunal. The

learned Tribunal to decide the matter expeditiously and preferably

within a period of six months from the date of receipt of record and

proceedings.

13. The Registry to remit the amount of Rs.50,000/- with

accrued interest thereon to the Motor Accident Claims Tribunal,

Chandrapur. On remittance of the same, the claimants shall be entitled

to withdraw the same.

JUDGE *DB