Bombay High Court
Vithabai Natthu Ahirkar vs Dineshkumar Nabilal Thakre And ... on 25 November, 2021
Bench: V.M. Deshpande
1 fa1077.08.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
FIRST APPEAL NO.1077/2008
Vithabai wd/o Natthu Ahirkar
aged about 46 years, Occ. Nil,
r/o Arsoda, Tq. Armori,
Dist. Gadchiroli .....APPELLANT
...V E R S U S...
1. Dineshkumar s/o Nabilal Thakre,
r/o Shiwani, Post Shiwani,
Tq. Dist. Gondia - 441 614 (MS)
2. Branch Manager,
New India Assurance Company Ltd.
Corporate Office at Jaistambh Chowk,
Ganesh Nagar, Gondia, Dist.
Gondia-4410601 (MS) ...RESPONDENTS
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Mr. P. P. Pendke, Advocate for appellant.
Mr. H. P. Lingayat, Advocate for respondent no.1.
Mrs. Anita Mategaonkar, Advocate for respondent no.2.
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CORAM:- V. M. DESHPANDE, J.
DATED :- 25.11.2021.
ORAL JUDGMENT
1. This is an appeal filed by Maharashtra State Road
Transport Corporation, Gadchiroli in Motor Accident Claim
Petition No. 25/2001 whereby the tribunal dismissed the claim
petition filed on behalf of the appellant.
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2. Heard Mr. Pendke, learned counsel for appellant,
Mr.Lingayat, learned counsel for respondent no.1 and
Mrs.Mategaonkar, learned counsel for respondent no.2.
3. An accident took place on 28.04.1996. The appellant
was travelling in a Matador having registration No. MH-35/771
owned by respondent no.1. In the said accident, the appellant
suffered injuries while one Liladhar Daji Meshram died. The
appellant filed claim petition. The said was registered as Claim
Petition No.25/2001. The legal representatives of Liladhar also
filed claim petition. The said was registered as Claim Petition
No.24/2009. The claim petition filed on behalf of the legal
representatives of the deceased was partly allowed. Therefore,
they were dissatisfied and they approached to this Court by filing
First Appeal No. 485/2008. The appeal filed for the said death
claim was allowed by this Court (Coram: Arun D. Upadhye, J.) on
04.02.2019.
3. Learned Member of the tribunal dismissed the claim
petition on the ground that appellant was travelling in a matador
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and therefore the insurance company was not liable to pay any
compensation.
4. The appellant filed insurance policy on record. It is at
Exh.-37. From the policy, it is clear that respondent no.1 took
policy from respondent no.2 insurance company and it was valid
till 08.01.1997. The accident took place on 28.04.1996. Thus,
when accident took place, insurance policy was in existence and
was in operation.
There is no dispute about the appellant suffering leg
injury.
5. In the claim petition filed on behalf of legal
representatives of deceased, insurance company was exonerated
on the ground that there was a breach of the policy.
6. Policy in said claim petition was at Exh. 48. Whereas
the very same policy is at Exh.-37 in the present matter. It would
be useful to reproduce hereinbelow the observations of this Court
in First Appeal No.485/2008. Paragraph 14 of the said judgment
reads thus:
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"14. As regards, the responsibility of Insurance
Company is concerned, the learned Tribunal did not
considered the Insurance Company's Police (Exhibit-48),
and wrongly exonerated the Insurance Company from its
liability. From perusal of Exhibit No.48, it reveals that the
amount of Rs.50/- was paid for one NFPP [non-fare paying
passenger]. However, it reveals that amount of Rs.60/- was
paid for 3 + 1 and total amount of insurance was 7866 +
393. The insurance cover note is at Exhibit No.39 of the
same vehicle."
Since policy Exh.-48 and present policy Exh.-37 are
very same, benefit of the earlier judgment has to be extended in
favour of the appellant.
7. The claim petition in my view therefore was wrongly
dismissed by the learned Member of the tribunal. Since the
tribunal dismissed the claim petition on the ground of
maintainability, there was no discussion about quantum of
compensation. Therefore, normally this Court would have
remanded back the matter to the tribunal for determination of the
compensation. However, Smt. Anita Mategronkar, learned counsel
for insurance company; looking to the quantum of compensation
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claimed by the appellant and the policy of the insurance company,
which they are adopting while settling the matters in Lok Adalat;
submits that instead of remanding back the matter and put the
lady in the gamut of the trial again, respondent insurance
company will pay an amount of Rs.2,00,000/- along with interest
at the rate of 5% per annum from the date of accident i.e.
28.04.1996 till its actual realization.
The stand adopted by the learned counsel for the
insurance company is appreciated.
8. In that view of the matter, following order is passed.
ORDER
(i) The appeal is allowed.
(ii) Judgment and order passed by Member, Motor
Accident Claims Tribunal, Gadchiroli in M.A.C.P. No.25/2001
filed by the appellant is hereby allowed.
(iii) Respondent n.2 shall pay Rs.2,00,000/- along with
interest at the rate of 5% per annum from the date of accident
i.e. 28.04.1996 till its realization within four months from
today. The amount be deposited before Motor Accident
Claims Tribunal, Gadchiroli.
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(iv) After the amount is so deposited, the Motor
Accident Claims Tribunal shall allow appellant-Vithabai wd/o
Natthu Ahirkar to withdraw the said amount along with
accrued interest thereon.
JUDGE
kahale
