Shamrao Baburao Dikle vs Rajendra Roopchand Malpani And ...
2021 Latest Caselaw 736 Bom

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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD

                       942 WRIT PETITION NO.14335 OF 2019

                     SHAMRAO BABURAO DIKLE
                                 VERSUS
           RAJENDRA ROOPCHAND MALPANI AND OTHERS
                                     .....
                Advocate for Petitioner : Mr. S. R. Sapkal
  Advocate for Respondent No.1 : Mr. Akshay Kulkarni h/f Ms. Anjali Bajpai
                                   Dube
                                                .....

                                                      CORAM : V. K. JADHAV, J.
                                                      DATED : 13 th JANUARY, 2021

 PER COURT:-


  1.      I have heard learned counsel for the petitioner at length. I find

 no substance in this writ petition.



 2.       The petitioner is original claimant.                 His own vehicle-car got

 damaged in the accident.                 It has been alleged that one another

 vehicle-tractor is involved in the accident and there was head on

 collision between the tractor and the car.                          Thus, the petitioner-

 claimant has preferred M.A.C.P. No. 130 of 1996 for damages of his

 car against the owner of the tractor, driver of the tractor and its

 insurer so also the insurer of his own car.



 3.       The Learned Chairman of the M.A.C.T. Osmanabad has partly

 allowed the M.A.C.P. No. 130 of 1996 and thereby held that the

 petitioner-original           claimant    is     entitled      to    the      damages          of

 Rs.2,50,000/- with interest @ 7.5% p.a. from the date of the claim


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 petition till the realization and further directed that the respondent

 Nos. 1 to 3 shall pay half of the amount of damages whereas the

 respondent No.4 (insurer of the car) shall pay remaining half of the

 amount of damages.            It is further directed that respondent No.3

 (insurer of the tractor) shall be entitled to recover from respondent

 No.1-insured (insured of the car) the amount required to be paid by it

 to the petitioner-claimant.



 4.       Being aggrieved by the same, the insurer of the car viz.

 Oriental Insurance Company Limited, has preferred first appeal No.

 1541 of 2007.             The Tribunal has recorded the finding of the

 contributory negligence and thereby held that the drivers of both the

 vehicles are equally responsible for the accident.             In view of the

 same, this court in the said appeal has observed that so far as the

 claim on account of damages caused to the car is concerned, the

 respondent-original claimant (petitioner herein) is not entitled to claim

 the compensation to the extent of his contribution in the accident. In

 the result, this Court has partly allowed the appeal and dismissed the

 M.A.C.P. No. 130 of 1996 as against respondent No.4 herein

 Oriental Insurance Company Limited (insurer of petitioner's car).



 5.       Being aggrieved by the same judgment and award passed by

 the Tribunal, respondent No.1 in the claim petition (owner of the

 tractor) has preferred first appeal No. 329 of 2007 in this court to the

 extent of permitting the insurer of the tractor to recover the amount

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 from him. By judgment and order dated 18.7.2017 in first appeal No.

 329 of 2007, this Court has partly allowed the said appeal and

 thereby quashed and set aside the said judgment and award to the

 extent that respondent No.3 insurer shall be entitled to recover the

 compensation amount from respondent No.1-insurer i.e. National

 Insurance Company Limited.



 6.       In view of the same, the claimant is entitled for the

 compensation to the extent of 50% as determined by the Tribunal.

 The learned Judge of the executing court has rightly appreciated the

 same and accordingly disposed of the execution petition. I find no

 substance in the submissions made on behalf of the claimant/owner

 of the car that he is entitled for the entire compensation as

 determined by the Tribunal. There is no substance in this writ

 petition. Hence, I proceed to pass the following order:-


                                 ORDER

Writ petition is hereby dismissed. No costs.

( V. K. JADHAV, J.)

rlj/