Smt. Surekha Ashok Kandalkar And ... vs Paraji Jagannath Dagadkhair And ...
2021 Latest Caselaw 9685 Bom

                                                First Appeal No.2053/2019
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           IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                               BENCH AT AURANGABAD


                       FIRST APPEAL NO.2053 OF 2019



 1.       Smt. Surekha wd/o Ashok Kandalkar,
          Age 45 years, Occu. Household,

 2.       Dhananjay s/o Ashok Kandalkar,
          Age 25 years, Occu. Education,

 3.       Sweta d/o Ashok Kandalkar,
          Age 22 years, Occu. Education

          All R/o Lodha Mala, Kacheri Road,
          Ward No.1, Shrirampur,
          Tq. Shrirampur, Dist. Ahmednagar               ... APPELLANTS

                  VERSUS

 1.       Paraji Jagannath Dagadkhair,
          Age 55 years, Occu. Agri. & Business,
          R/o Hanuman Takali, Tq. Pathardi,
          District Ahmednagar.

 2.       Pradeep s/o Pundlik Takale,
          Age 54 years, Occu. Business,
          R/o Khadambe, Tq. Rahuri,
          District Ahmednagar

 3.       Pralhad s/o Deoraj Shinde,
          Age Major, Occu. Agri. (DELETED)

 4.       Sunil s/o Bhaskar Takale,
          Age 49 years, occu. Agri.,
          R/o Khadambe, Tq. Rahuri,
          District Ahmednagar

 5.       Jagannath s/o Sakharam Jadhav,
          Age major, Occu. Driver.
          R/o Mahadeowadi, Sade,
          Tq. Rahuri, Dist. Ahmednagar (DELETED)




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                                                         First Appeal No.2053/2019
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 6.       The Branch Manager,
          The United India Insurance Co. ltd.,
          Nagari Building, Shivaji Road,
          Shrirampur, Tq. Shrirampur,
          District Ahmednagar.          ... RESPONDENTS

                             .......
 Mr. C.K. Shinde, Advocate for appellants
 Mr. S.R. Andhale, Advocate for respondents No.2 & 4
 Mr. A.G. Kanade, Advocate for respondent No.6
                             .......

                                 CORAM :          R. G. AVACHAT, J.
                                 DATE :           26th JULY, 2021
 JUDGMENT:

The challenge in this appeal is to the direction in

the award dated 6/10/2017, passed by Motor Accident Claims

Tribunal (MACT), Shrirampur in Motor Accident Claim Petition

(MACP) No.227/2013. The challenge is not as regards

quantum of compensation awarded under the impugned

award. What has been challenged is the direction to the

respondent Insurance Company to pay the appellants/

claimants only 50% of the amount under the award.

FACTS :-

2. The appellants are the Class-I heirs/ legal

representatives of deceased Ashok. The deceased was on his

way in his car by 12.00 midnight on 18/1/2012. The tractor

(MH-16/AM-850) attached with two trolleys was stationary at

First Appeal No.2053/2019 :: 3 ::

the middle of the road. The trolleys did not have a tail lamp

or reflector. The car driven by the deceased rammed into the

second trolley from behind. As a result of the impact, Ashok

succumbed to the injuries. All these facts are not in dispute

before this Court. On appreciating the evidence, the learned

Presiding Officer of the Tribunal observed :-

"पसतुतचे पकरणात दोनही ट्ेलरर ट्ॅकटरला जोडलयामुळे व ट्ॅकटरनेच तयांना रसतयाचे मधोमध उभे केलयामुळे रंपूणर ननषकाळजीपणा हा ट्ॅकटर चालकाचा आहे. तयामुळे नुकरान भरपाई देणयाची रंपूणर जबाबदारी केवळ रामनेवाला नं.१ ची आहे. परंतु जया ट्ॉलीला कारने धडक नदली टी ट्ॉली रामनेवाला नं.६ कडे नवमा उतरनवलेली अरलयामुळे येणाऱया नुकरान भरपाई रकमेपैकी ५० टके रकम अजर दारांना पथम देणयाचे ननदरश रामनेवाला नं.६ ला देणे नयायोचचत आहे."

3. As such, the Tribunal observed it to be a case of

negligence exclusively on the part of the tractor driver. The

tractor belonged to the respondent No.1. It had no insurance

cover. The trailers/ trolleys attached to the tractor belonged

to respondent No.4. The trolley with which the car dashed,

had an insurance cover granted by the respondent No.6 -

United India Insurance Co. Ltd. Neither the respondent

Insurance Company nor the owner of the tractor or trolleys

First Appeal No.2053/2019 :: 4 ::

has taken exception to the impugned award.

4. Shri C.K. Shinde, learned counsel for the

applicants/ claimants would submit that, the Tribunal might

have been right in observing it to be a case of exclusive

negligence on the part of the tractor driver in keeping the

tractor and the trolleys attached thereto stationary at the

middle of the road. The deceased was a third party. So far as

regards the applicants/ claimants are concerned, the owners

of the vehicles involved in the accident and their Insurance

Companies are jointly and severally liable to pay the amount

under the award. He, therefore, urged for modification of the

impugned directions.

5. Mr. Kanade, learned counsel for the respondent

Insurance Company would, on the other hand, submit that,

the tractor had no insurance cover. The Tribunal has held it to

be a case of negligence on the part of the tractor driver alone.

Neither the tractor owner nor the driver has challenged the

award. Since it was a case of involvement of more than one

vehicle, and the trolley insured with the respondent insurance

Company was stationary, the Tribunal has rightly held the

owner of the trailer/ trolley to have primary liability to pay the

First Appeal No.2053/2019 :: 5 ::

compensation. According to learned counsel, the impugned

award does not require interference in this appeal. He would

alternatively submit that, if the Insurance Company is

directed to pay the entire amount under the award, its right to

recover the amount from the tractor owner be secured with

some directions.

6. The tractor attached with the two trolleys was

stationary at the middle of the road. The trolleys did not have

a tail lamp or reflector. As a result, the car driven by the

deceased rammed into last trolley. Ashok succumbed to the

injuries suffered in the accident. As such, the vehicles

involved in the accident are three in number, namely, the

tractor and the two trolleys. The tractor was owned by

respondent No.1. The trolleys belonged to the respondent

No.4. The trolley against which the car dashed had an

insurance cover. The deceased was a third party. The owners

of the vehicles involved in the accident are, therefore, liable,

jointly and severally to pay the amount of compensation to

the claimants/ legal representatives of the deceased.

7. True, the Tribunal held it to be a case of

negligence on the part of tractor owner and held to be liable

First Appeal No.2053/2019 :: 6 ::

to pay the compensation. The Tribunal, however, only

directed the respondent Insurance Company to pay 50% of

the amount under the award and recover the same from the

tractor owner. Since it is a case of a joint and several liability

on the part of the owners of the vehicles involved in the

accident and one of the vehicles having been insured with the

respondent Insurance Company, the Tribunal ought to have

directed it to first pay the entire amount of compensation to

the appellants/ claimants and then recover the same from the

tractor owner. Since the award has not been challenged by

the tractor owner, this Court cannot interfere therewith so far

as regards holding him exclusively liable to pay the

compensation. Suffice it to say that, in the facts and

circumstances of the case, the direction given by the Tribunal

needs to be interfered with, with a direction to the respondent

Insurance Company to pay the appellants/ claimants the

entire amount under the award and then recover it from the

original respondent No.1 - Paraji Jagannath Dagadkhair. The

respondent Insurance Company would be entitled to recover

the said amount in an execution proceedings from the tractor

owner.

8. With the above directions, the appeal stands

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disposed of, without there being any alteration in rest of the

terms of the award.

( R. G. AVACHAT ) JUDGE

fmp/-