Bombay High Court
The United India Insurance Co. Ltd vs Kusum Ashruba Mule And Ors on 17 November, 2021
Bench: R. G. Avachat
FA-2478-2017.odt
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 2478 OF 2017
The United India Insurance Co. Ltd.,
Branch Office, Beed,
Through its Divisional Manager,
Aurangabad ... Appellant
(Orig. Respondent)
Versus
1. Kusum w/o Ashruba Mule
Age 30 years, Occu: Household,
2. Vishal s/o Ashruba Mule
Age 12 years, Minor
3. Tushar Ashruba Mule
Age 10 years, Minor
R-2 & 3 are minors and
Under Guardianship of their
Real mother Kusum R-1,
All R/o Bhopa, Tq. Majalgaon,
Dist. Beed ... Respondents
(Orig.Claimants)
....
Mr. A. A. Lomte, Advocate h/f Mr. A. G. Kanade, Advocate for
appellant
Mr. S. J. Salunke, Advocate for respondents
....
CORAM : R. G. AVACHAT, J.
DATED : 17th NOVEMBER, 2021
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PER COURT :-
. This is Insurance Company's appeal, taking exception to
the judgment and award dated 26.02.2010, passed by the Member,
Motor Accident Claims Tribunal, Majalgaon, in Motor Accident Claim
Petition No.102 of 2005 (Old MACP No.75 of 2005), granting
compensation of Rs.3,91,000/- with interest @ 8% per annum on
account of death occurred in vehicular accident.
2. The challenge is mainly on the ground of maintainability
of the claim petition. The claim petition was filed by the widow and
two minor children of the deceased Ashruba. The deceased was the
owner of the auto-rickshaw bearing registration No. MH-20-U-4157.
When it met with the accident, it was the deceased who was driving
the same. The auto-rickshaw turtled and as a result of injuries
suffered thereby, Ashruba succumbed thereto. As such, no other
vehicle was involved in the accident.
3. Learned Advocate for the respondents - claimants took
me through the impugned judgment and particularly para 16
thereof. It was submitted that the auto-rickshaw involved in the
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accident had insurance cover. The policy of the insurance was
comprehensive in nature. Learned Advocate supports the impugned
judgment and award.
4. The claim was filed under Section 166 of the Motor
Vehicles Act, 1988. For grant of compensation under Section 166 of
the Motor Vehicles Act, negligence on the part of the driver of the
offending vehicle is required to be proved. Liability of the Insurance
Company is in the nature of indemnification to the owner of the
vehicle involved in the accident. Here, the owner-cum-driver of the
auto-rickshaw himself met with the accident and died therein. The
petition was filed against the Insurance Company alone. On
investigation, chargesheet was filed against the deceased himself.
The deceased was not third party. So far as regards claim for
compensation under Section 166 of the Motor Vehicles Act is
concerned, there is prima-facie nothing to indicate the policy of
insurance to have had covered the risk of the owner-cum-driver of
the auto-rickshaw. Even if it is assumed that, such risk has been
covered, the accident took place due to fault of the deceased himself.
5. In the facts and circumstances, the Tribunal ought not to
have allowed the claim petition. Interference therewith is therefore
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warranted. In the result, the appeal succeeds. Hence, following
order:
ORDER
(i) The appeal is allowed.
(ii) The impugned award dated 26.02.2010, passed by
the Member, Motor Accident Claims Tribunal,
Majalgaon in Motor Accident Claim Petition No.102
of 2005 (Old MACP No.75 of 2005) is hereby set
aside. The claim petition is dismissed.
(iii) The amount of compensation in deposit with this
Court or the Tribunal, be paid back to the appellant
- Insurance Company with interest accrued thereon.
(iv) Civil application No.10619 of 2021 is disposed of.
[ R. G. AVACHAT, J. ]
SMS
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