Bombay High Court
Bajaj Allianz General Insurance ... vs Lalita Mohan Rathod And Ors on 12 January, 2021
Bench: V.L. Achliya
1 912 F.A. 22.2021
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
912 FIRST APPEAL NO.22 OF 2021
BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD.,
THR ITS BRANCH MANAGER, AURANGABAD
VERSUS
LALITA MOHAN RATHOD AND ORS
......
Mr. S.G.Chapalgaonkar, Advocate for Appellant.
......
CORAM : V.L.ACHLIYA, J.
DATE : 12/01/2021
......
ORAL ORDER :
1. Learned counsel for appellant undertake to
remove office objections within two weeks.
2. Heard learned counsel for appellant.
3. It is submitted that the respondents-claimants
have filed claim petition u/s 166 of Motor Vehicles Act
seeking compensation on account of accidental death
of deceased. The claimants have approached with the
case that at the time of accident, the deceased was
travelling in Ape rickshaw bearing registration No.
MH-25-B-5659 owned by respondent No. 3 [insurer]
and insured with respondent No. 4. It is claimed that
at the time of accident the driver of Tipper bearing
registration No. MH-46-F-0862 owned by respondent
No. 1 and insured with respondent No. 2 driving the
vehicle in most rash and negligent manner and gave
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2 912 F.A. 22.2021
dash to auto rickshaw which resulted into accidental
death of deceased. The claimants have attributed the
cause of accident solely against the driver of Tipper
bearing registration No. MH-46-F-0862. No case
pleaded to the effect that the driver of auto rickshaw
was also responsible for accident. It is further
submitted that based upon the pleadings of the
parties, the Tribunal has framed Issues vide Exh. 26.
While dealing with issue No. 1, the Tribunal has
categorically observed that accident was solely
occurred due to fault and negligence on the part of
driver of Tipper bearing registration No. MH-46-F-
0862 and respondent Nos. 1 and 2 are liable to pay
the compensation on account of fault liability.
However, contrary to its finding that accident was
occurred solely due to negligence of driver of Tipper
bearing registration No. MH-46-F-0862 and the
respondent Nos. 1 and 2 are solely responsible for
payment of compensation, the Tribunal has
surprisingly passed order directing the respondent No.
4 to pay the compensation and to recover the same
from respondent No. 3. It is submitted that in the
case in hand no question of issuing the direction to
Insurance company i.e. respondent No. 4 and to
recover the same from respondent No. 3, the driver of
auto rickshaw, posed for determination of Tribunal.
In view of the finding recorded that accident was
occurred due to sole negligence on the part of driver
of Tipper bearing registration No. MH-46-F-0862 and
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3 912 F.A. 22.2021
the respondent Nos. 1 and 2 alone liable to pay the
compensation, the Tribunal has committed gross error
in passing the impugned Judgment and order
directing appellant/respondent to pay compensation.
It is submitted that the impugned Judgment is
perverse and not sustainable in law. The findings
recorded and conclusions drawn are contrary to final
order passed in the matter.
4. I have carefully considered the submissions
advanced in the light of Judgment and Order passed
by the Tribunal. In my view, the order passed by
Tribunal against the appellant to pay and recover is
prima facie perverse. The Tribunal has dealt and
decided the application filed u/s 166 of Motor Vehicles
Act on the basis of fault liability. While discussing
the reasons, the Tribunal has categorically observed
that the accident was solely occurred due to
negligence and fault on the part of driver of Tipper
bearing registration No. MH-46-F-0862. In para No.
16 the Tribunal has categorically recorded its
conclusion as under.
" Therefore, at this juncture I reach to
the conclusion that due to rash and
negligent driving of driver of tipper,
Mohan Namdeo Rathod died. Thus, I
have given finding on issue No. 1 in
affirmative. "
5. It is surprising to note that in spite of reaching
to the conclusion that the accidental death of
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4 912 F.A. 22.2021
deceased was occurred due to sole negligence on the
part of driver of Tipper bearing registration No. MH-
46-F-0862 owned by respondent No. 1 and insured
with respondent No. 2, the respondent Nos. 1 to 4
have been made to pay the compensation jointly and
severally and respondent No. 4 has been directed to
deposit the entire amount of compensation and to
recover the same from respondent No. 3 without filing
separate Suit. In that view, the Judgment and Order
passed by Tribunal appears to be perverse and self-
contradictory. In view of above, there is arguable
case to be considered in Appeal. I am, therefore,
inclined to admit the Appeal and pass the following
order.
ORDER
[i] 'Admit'.
[ii] Issue notice to respondents, returnable within
eight weeks. In addition to service through process of
Court, the applicant is permitted to serve the
respondents by all permissible modes of service
including registered post and file affidavit of service
before the due date.
[iii] Call record and proceedings with paper book.
[V.L.ACHLIYA]
JUDGE
KNP
