Bombay High Court
New India Assurance Co Ltd vs Shrirang Laxman Deokar And Ors on 28 October, 2021
Bench: R. G. Avachat
FA-1353-2010+.odt
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 1353 OF 2010
New India Assurance Company Ltd.,
Aurangabad, Through its Divisional Manager
Adalat Road, Aurangabad ... Appellant
Versus
1. Lahu s/o Govindrao Itkar (Died)
through L.Rs.
1-A) Nilesh Lahu Itkar
1-B) Umesh Lahu Itkar
2. Nilesh Lahu Itkar
Age: 16 years, Occu: Education,
R/o Sonari, Taluka Paranda,
District Osmanabad
3. Umesh Lahu Itkar
Age: 15 years, Occu: Education,
R/o As above.
4. Navnath Mahadeo Tambave
Age: Major, Occu. Agri.,
R/o. Chandaj, Taluka Madha,
District Solapur
(Owner of Tractor No.MH-13-A-9366 &
Trailer No.MH-13-J-0540)
5. The Oriental Insurance Company Ltd., Akluj,
Through: Branch Manager,
The Oriental Insurance Company Ltd.
Near S. T. Stand, SBI Building, Osmanabad
(Insurer of Tractor & Trailer)
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6. Manik Dinkar Salunke
Age: Major, Occu: Agri.,
R/o Chandaj, Taluka Madha,
District Solapur
Owner of Trailer No.MH-45-A-6690) ... Respondents
WITH
FIRST APPEAL NO. 1355 OF 2010
New India Assurance Company Ltd.,
Aurangabad, Through its Divisional Manager
Adalat Road, Aurangabad ... Appellant
Versus
1. Tulsabai Mohan Pawar
Age: 40 years, Occu. Household,
R/o. Soari, Taluka Paranda,
District Osmanabad
2. Uttreshwar Mohan Pawar
Age: 23 years, Occu. Labourer
R/o As above.
3. Kiran Mohan Pawar,
Age: 21 years, Occu: Labour
R/o As above
4. Nirmala d/o Mohan Pawar
Age: 17 years, Occu: Labourer
Minor U/guardianship of her mother
Tulsabai Mohan Pawar (respondent No.1)
5. Navnath Mahadeo Tambave
Age: Major, Occu. Agri.,
R/o. Chandaj, Taluka Madha,
District Solapur
(Owner of Tractor No.MH-13-A-9366 &
Trailer No.MH-13-J-0540)
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6. The Oriental Insurance Company Ltd., Akluj,
Through: Branch Manager,
The Oriental Insurance Company Ltd.
Near S. T. Stand, SBI Building, Osmanabad
(Insurer of Tractor & Trailer)
7. Manik Dinkar Salunke
Age: Major, Occu: Agri.,
R/o Chandaj, Taluka Madha,
District Solapur
Owner of Trailer No.MH-45-A-6690) ... Respondents
WITH
FIRST APPEAL NO. 1356 OF 2010
New India Assurance Company Ltd.,
Aurangabad, Through its Divisional Manager
Adalat Road, Aurangabad ... Appellant
Versus
1. Lahu s/o Govindrao Itkar (Died)
through L.Rs.
1-A) Nilesh Lahu Itkar
Age: As on today 19 years,
Occu: Education,
R/o Sonari, Taluka Paranda,
District Osmanabad
1-B) Umesh Lahu Itkar
Age: As on today 18 years,
Occu: Education,
R/o As above.
2. Navnath Mahadeo Tambave
Age: Major, Occu. Agri.,
R/o. Chandaj, Taluka Madha,
District Solapur
(Owner of Tractor No.MH-13-A-9366 &
Trailer No.MH-13-J-0540)
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3. The Oriental Insurance Company Ltd., Akluj,
Through: Branch Manager,
The Oriental Insurance Company Ltd.
Near S. T. Stand, SBI Building, Osmanabad
(Insurer of Tractor & Trailer)
4. Manik Dinkar Salunke
Age: Major, Occu: Agri.,
R/o Chandaj, Taluka Madha,
District Solapur
Owner of Trailer No.MH-45-A-6690) ... Respondents
WITH
FIRST APPEAL NO. 1379 OF 2010
New India Assurance Company Ltd.,
Aurangabad, Through its Divisional Manager
Adalat Road, Aurangabad ... Appellant
Versus
1. Machindra Vithal Sangade
Age: 48 years, Occu: Labourer,
R/o. Sonari, Taluka Paranda,
District Osmanabad
2. Bhairu Machindra Sangade
Age: 25 years, Occu: Private Service,
R/o As above.
3. Navnath Machindra Sangade
Age: 23 years, Occu: Education
R/o As above.
4. Navnath Mahadeo Tambave
Age: Major, Occu. Agri.,
R/o. Chandaj, Taluka Madha,
District Solapur
(Owner of Tractor No.MH-13-A-9366 &
Trailer No.MH-13-J-0540)
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5. The Oriental Insurance Company Ltd., Akluj,
Through: Branch Manager,
The Oriental Insurance Company Ltd.
Near S. T. Stand, SBI Building, Osmanabad
(Insurer of Tractor & Trailer)
6. Manik Dinkar Salunke
Age: Major, Occu: Agri.,
R/o Chandaj, Taluka Madha,
District Solapur
Owner of Trailer No.MH-45-A-6690) ... Respondents
WITH
FIRST APPEAL NO. 1380 OF 2010
New India Assurance Company Ltd.,
Aurangabad, Through its Divisional Manager
Adalat Road, Aurangabad ... Appellant
Versus
1. Shrirang Laxman Deokar
Age: 68 years, Occu: Labourer
R/o Sonari, Taluka Paranda,
District Osmanabad
2. Dnyaneshwar Shrirang Deokar
Age: 41 years, Occu: Labourer,
R/o As above
3. Anna Shrirang Deokar
Age: 43 years, Occu: Labourerm
R/o As above
4. Navnath Mahadeo Tambave
Age: Major, Occu. Agri.,
R/o. Chandaj, Taluka Madha,
District Solapur
(Owner of Tractor No.MH-13-A-9366 &
Trailer No.MH-13-J-0540)
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5. The Oriental Insurance Company Ltd., Akluj,
Through: Branch Manager,
The Oriental Insurance Company Ltd.
Near S. T. Stand, SBI Building, Osmanabad
(Insurer of Tractor & Trailer)
6. Manik Dinkar Salunke
Age: Major, Occu: Agri.,
R/o Chandaj, Taluka Madha,
District Solapur
Owner of Trailer No.MH-45-A-6690) ... Respondents
WITH
FIRST APPEAL NO. 1382 OF 2010
New India Assurance Company Ltd.,
Aurangabad, Through its Divisional Manager
Adalat Road, Aurangabad ... Appellant
Versus
1. Shivaji Govindrao Itkar
Age: 40 years, Occu: Labourer
R/o Sonari, Taluka Paranda,
District Osmanabad
2. Dnyaneshwar Shivaji Itkar
Age: 17 years, Occu: Labourer,
R/o As above
3. Sushila Shivaji Itkar
Age: 16 years, Occu: Labourer,
R/o As above
4. Kundlik Shivaji Itkar
Age: 14 years, Occu: Labourer,
R/o As above
5. Navnath Mahadeo Tambave
Age: Major, Occu. Agri.,
R/o. Chandaj, Taluka Madha,
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District Solapur
(Owner of Tractor No.MH-13-A-9366 &
Trailer No.MH-13-J-0540)
6. The Oriental Insurance Company Ltd., Akluj,
Through: Branch Manager,
The Oriental Insurance Company Ltd.
Near S. T. Stand, SBI Building, Osmanabad
(Insurer of Tractor & Trailer)
7. Manik Dinkar Salunke
Age: Major, Occu: Agri.,
R/o Chandaj, Taluka Madha,
District Solapur
Owner of Trailer No.MH-45-A-6690) ... Respondents
....
Mr. S. G. Chapalgaonkar, Advocate for appellant
Shri Dhananjay P. Deshpande, Advocate for respondent No.5 in
FA/1379/2010, 1380/2010 and 1353/2010, for respondent No.6 in
FA/1355/2010, 1382/2010 and for respondent No.3 in
FA/1356/2010
Shri G. T. Talekar, Advocate for respondent Nos. 1 to 3 in
FA/1379/2010, 1380/2010, for respondent Nos. 1 to 4 in
FA/1355/2010, 1382/2010 and for respondent Nos. 2 and 3 in
FA/1353/2010, for respondent No.1-A and 1-B in FA/1356/2010
....
CORAM : R. G. AVACHAT, J.
RESERVED ON : 14th OCTOBER, 2021
PRONOUNCED ON : 28th OCTOBER, 2021
J U D G M E N T :-
. These appeals are being decided by this common
judgment and order since common questions of fact and law arise
therein. Moreover, all these appeals arise from judgments and
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awards passed in Motor Accident Claim Petitions arising out of one
and the same accident.
2. Facts giving rise to these appeals are as under:-
The First Information Report Exh.47 was lodged by an
Assistant Police Inspector after having inquired into the report of the
accident. A goods carriage tempo bearing No.MH-25-B-6047 was on
its way from Indapur to Tembhurni. Number of persons were
travelling in the said tempo after having attended marriage
ceremony at Baramati. It was around 9.30 p.m. of 22.12.2006, a
tractor (No.MH-45-A-5989) towing two trollies filled with sand was
oncoming/approaching from opposite side. The tractor was keeping
its left. The tempo too was proceeding keeping left side of the road.
The tractor (MH-13-A-9366) attached with two unnumbered trollies
was in the process of overtaking the tractor - MH-45-A-5989. In the
process of overtaking, the first trolley attached to the tractor
No.MH-13-A-9366 dashed against the tempo. The impact of the
accident was so severe that six of the persons in the tempo died as a
result of injuries suffered therein. Over 25 persons suffered multiple
injuries and disability, as well. About 25 petitions came to be filed for
compensation. The tractor (MH-13-A-9366) and the first trolley
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attached thereto belonged to respondent - Navnath Mahadeo
Tambave, herein. The said tractor and trolley had insurance cover
granted by respondent No.5 - The Oriental Insurance Company
Limited, while the second/last trolley attached to the said tractor
belonged to respondent No.6. It was insured with the appellant -
New India Assurance Company Limited.
3. The Tribunal allowed the claim petitions holding both
the owners of the tractor and trollies attached thereto and their
respective insurance companies to be jointly and severally liable to
pay the amount of compensation. It appears that the respondent -
The Oriental Insurance Company Limited paid/deposited 50% of the
amount under the impugned awards. New India Assurance Company
Limited preferred to file the present appeals.
4. Heard.
Learned Advocate for the appellant - Insurance
Company would submit that the details of registration of the second
trolley attached to the offending tractor have not been given in the
FIR and panchanama, as well. As such, involvement of the said
trolley has not been made out. The inspection report of the said
trolley indicates that it was not impacted upon. Collision was
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between tempo and the first trolley. As such, the trolley insured with
the appellant - Insurance Company was no way involved in the
accident. The appellant - Insurance Company has therefore no
liability. The learned Advocate in the alternative urged for
apportionment of the liability inter-se, the offending tractor and the
trollies attached thereto. According to him, the trolley/trailer is not a
motor vehicle itself. It needs to be propelled by some other vehicle,
like tractor. The learned Advocate, therefore, urged for allowing the
appeals.
5. The learned Advocate for the respondent - Insurance
Company would, on the other hand, submit that the offending
tractor attached with two trollies constituted one vehicle. There
could not be apportionment of inter-se liability. Learned Advocate
relied on the judgment of the Apex Court in the case of Khenyei vs
New India Assurance Company Limited and others - (2015) 9 SCC
273.
6. The Tribunal relied on the evidence of one Ravikiran
Lokhande. Ravikiran was an eye witness. He was in the driver's
cabin of the ill-fated tempo when it met with the accident. He gave
the details as to how the accident took place. With a view to avoid
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repetition, the same is not adverted to. Suffice it to say that the
accident took place as has been stated/described in para No.2 herein
above. Although, the FIR and the panchanama did not contain
registration details of the second trolley attached to the offending
tractor, it appears that it's identification had not been disputed by its
owner and the appellant - Insurance Company, as well, before the
Tribunal.
7. In view of this Court, the tractor attached with two
trollies/trailers constitute one vehicle. The author of the accident is
one and the same person i.e. the driver of the tractor. For a case of
contributory or composite negligence, there has to be involvement of
at least more than one person (human being), so as to attribute them
with breach of duty to take care.
In case of New India Assurance Company Limited vs
Triveni Bai and Ors - MANU/MP/0681/2007, it has been observed
thus:-
18. "..... Even though, the tractor and trolley are
insured separately and are owned by two different persons
but the fact remains that tractor and trolley were being
used for transporting agriculture produce to the mandi.
Both the owners of the tractor and trolley would be
deemed to have permitted use of the same on the date of
the accident. The tractor and trolley cannot be treated as
two different and separate vehicles. The tractor and trolley
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together constitute a goods vehicle and merely because
they are separately registered and insured, it cannot be
construed that they are two separate vehicles. Once the
accident had taken place and the vehicle involved is the
tractor and trolley then the assumption is that the goods
vehicle involved in the accident is the tractor-cum-trolley,
i.e., both have to be taken together as one and for the
purpose of accident they cannot be treated to be two
separate vehicles."
8. The appellant - Insurance Company therefore cannot
escape of its liability against the claimants.
9. Learned Advocate for the appellant - Insurance
Company urged for apportionment of inter-se liability. The
submission of learned Advocate for the respondent - Insurance
Company that the tractor attached with two trollies is one vehicle
and no inter-se liability could therefore be apportioned does not
stand to reason.
In the case in hand, it was a tractor attached with two
trollies which has been held to be an offending vehicle. The tractor
and one of the trollies belonged to Navnath Mahadeo Tambave,
while the other trolley was owned by Manik Dinkar Salunke. The
tractor had an insurance cover. Both the trollies were insured with
two different companies, the appellant and the respondent -
Insurance Company. In case of joint and several liability, the inter-se
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liability shall be equal in proportion (Principle of contribution). Had
the tractor and both the trollies belonged to three different persons
with an insurance cover granted to each of them by separate
insurance companies, the inter-se liability for contribution would
have been 1/3rd. Here, it is a case of tractor attached with two
trollies involved in the accident. The owner of each of it, would
therefore be equally liable to contribute. As such, each of the owner
thereof would be required to contribute inter-se 1/3rd of the amount
required to be paid under the impugned award. When the tractor
and one of the trollies belonged to one person, his liability to
contribute would be 2/3rd. When the tractor had an insurance cover,
the appellant - Insurance Company cannot escape from a liability to
bear responsibility to indemnify what would be required to be paid
by the owner of the tractor.
10. As such, the liability of appellant - Insurance Company
(as insurer of the tractor and one of the trollies) inter-se would be
2/3rd of the impugned award and nothing more. It, however, cannot
escape its liability to pay half of the amount under the impugned
award to the claimants since the respondent - Insurance Company
has satisfied the award to the extent of 50% thereof.
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11. For the reasons given herein above, the appeals stand
disposed of with aforesaid findings.
[ R. G. AVACHAT, J. ]
SMS
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