Bombay High Court
Iffco Tokio General Insuranc Co. ... vs Shri. Naushad Ahamed Zahir Shah ... on 5 August, 2022
Bench: Nitin W. Sambre
FA699-2016.doc
BDP-SPS-TAC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BHARAT
DASHARATH
PANDIT
CIVIL APPELLATE JURISDICTION
Digitally signed by
BHARAT DASHARATH
PANDIT
FIRST APPEAL NO.699 OF 2016
Date: 2022.08.05
18:32:38 +0530
IFFCO TOKIO GENERAL INSURANCE )
CO. LTD, Thane Divisional Office )
Shripal Complex Nitin Company, )
Thane. )
Present Address: AFL House 2nd Floor )
Lokbharti Complex, Marol Maroshi )
Road, Andheri (East), Mumbai-400059 ) .... Appellant.
(Orig. Opponent No.4.)
V/s
1] Shri Naushad Ahamed Zahir Shah )
Aged about 24 years, R/at Shivaji Nagar)
Govandi, Baigan Wadi, Mumbai. )
)
2] M/s Venkatesh Logistics Pvt. Ltd. )
Room No.07 Nand Niketan Shopping )
Complex, Essar Township, Hazira )
District Surat, State Gujrath )
(Owner of Truck No.GJ-05/YY-8570) )
)
3] The Reliance Gn. Insurance Co.Ltd. )
Reliance Centre 19, Hirachand )
Walchand Marg, Ballard Estate )
Mumbai -1. )
)
4] Shri Ramnarayan Subhedar Singh )
Ghyandeep CHS, B-1/3/13, )
Sector No.10, Sanpada, Navi Mumbai )
Dist. Thane (Owner of Tanker )
No.MH-43/E-778) ) Respondents.
1/10
FA699-2016.doc
ALONGWITH
FIRST APPEAL (ST) NO.26987 OF 2015
Reliance General Insurance Co. ltd. )
Through its Manager, Mr. Amit Ashwini )
Sharma, having its office at 4th Floor )
Chintamani Avenue Off Western Express)
Highway, Near Virwani Industrial Estate )
Goregaon (East), Mumbai 400063 ) .... Appellant.
(Ori. Opp. Party No.2)
V/s
1] Shri Naushad Ahamed Zahir Shah )
Aged about 24 years, R/at Shivaji Nagar)
Govandi, Baigan Wadi, Mumbai. )
)
2] M/s Venketesh Logistics Pvt. Ltd. )
Room No. 07 Nand Niketan Shopping )
Complex, Essar Township, Hazira )
District Surat, State Gujrath )
)
)
3] Shri Ramnarayan Subedar Singh )
Ghyandeep CHS, B-1/3/13, )
Sector No.10, Sanpada, Navi Mumbai )
Dist. Thane )
)
4] The Iffco-Tankio General Insurance )
Co. Ltd., Thane Divisional Office )
Shripal Complex, Nitin Company,Thane ) ...... Respondents.
ALONGWITH
CIVIL APPLICATION NO.2753 OF 2019
(For withdrawal of amount deposited in MACT)
2/10
FA699-2016.doc
IN
FIRST APPEAL NO.699 OF 2016
Shri Naushad Ahamed Zahir Shah .... Applicant
In the matter between
IFFCO TOKIO General Insurance Company
Limited. .... Appellant
V/s
Shri Naushad Ahamed Zahir Shah and Ors. .... Respondents.
ALONGWITH
CIVIL APPLICATION NO.1671 OF 2016
(For stay)
IN
FIRST APPEAL NO.699 OF 2016
IFFCO TOKIO General Insurance Company
Limited. .... Appellant
V/s
Shri Naushad Ahamed Zahir Shah and Ors. .... Respondents.
ALONGWITH
CIVIL APPLICATION NO.1606 OF 2016
(For stay)
IN
FIRST APPEAL (ST) NO.26987 OF 2015
Reliance General Insurance Co. Ltd. .... Applicant
V/s
Shri Naushad Ahamed Zahir Shah and Ors. .... Respondents.
-----
3/10
FA699-2016.doc
Ms. Jyoti Bajpayee for the Appellant in FA/699/2016.
Mr. Rajesh Kanojia @ Riddhi Chavan i/b Res Juris for the Appellant in
FA(ST)/26987/2015
Ms. Rina Kundu for Respondent No.1 in both the above Appeals.
CORAM: NITIN W. SAMBRE, J.
DATE: AUGUST 05, 2022
JUDGMENT:
1] Both these Appeals by consent of parties are tagged and heard
together.
2] These Appeals are arising out of the Award delivered by the
District Judge-7 and Additional Member, MACT, Thane in the matter
of Shri Naushad Ahamed Zahir Shah vs. M/s Venketesh Logistics Pvt.
Ltd and 3 others.
3] Appellant-Reliance General Insurance Company Ltd was
Opponent No.2 and and the Appellant-Iffco Tokio General Insurance
Co. Ltd was Opponent No.4 to the claim Petition. Proceedings were
taken out by Respondents-claimant viz Naushad Ahamed Zahir Shah
with allegations that on 31/01/2009 at about 4.30 P.M while he was
discharging his duty as cleaner on Motor Tanker bearing
FA699-2016.doc
No. MH-43-E-778, the said Tanker was driven in a rash and negligent
manner. As a consequence, the said Tanker dashed against stationery
Motor Trailler bearing No.GJ-5-YY-8570.
4] As a consequence of the aforesaid accident, the claimant claimed
to have suffered serious injuries and as such he was removed to rural
hospital and thereafter shifted to Siraj Hospital Bhiwandi for
treatment. The owners of both the vehicles were proceeded ex parte
before the Tribunal, so also remained absent before this Court.
5] The Appellant-Reliance General Insurance Co. Ltd resisted the
claim vide Written Statement at Exhibit-31 and the other Appellant-
Iffco Tokio General Insurance Co. Ltd vide Written Statement at
Exhibit-33. Issue as regards whether the claimant suffered permanent
disablement due to rash and negligent driving of Tanker was held to
be proved and the following directions came to be issued viz.
Appellant- Reliance General Insurance Co. Ltd with the owner of the
vehicle was jointly and severally held to be liable and also Appellant-
Iffco Tokio General Insurance Co. Ltd with the owner of the vehicle
FA699-2016.doc
was also held to be jointly and severally liable with 50% of the liability
each. The operative part of the said judgment reads as under:-
"ORDER
[i] Application is allowed.
[ii] Opponent Nos. 1 and 2 jointly and severally liable
to pay compensation of Rs 3,23,500/- (Rupees Three
Lac Twenty Three Thousand Five Hundred Only)
(including NFL amount of Rs 25,000/-) to the applicant
with interest of 7% pa. from the date of filing of
petition till its realization.
(iii) Opponent Nos. 3 and 4 jointly and severally liable
to pay compensation of Rs 3,23,500/- (Rupees Three
Lac Twenty Three Thousand Five Hundred Only)
(including NFL amount of Rs 25,000/- to the applicant
with interest of 7% pa. from the date of filing of
petition till its realization.
[iv] On realization of the amount, total amount of Rs
6,47,000/- (Rupees Six Lac Fourty Seven Thousand
Only) be handed over to the applicant along with
interest thereon by way of A/c payee cheque from the
date of filing of petition till realization.
[v] The amount of interim compensation of Rs
25,000/- if already withdrawn by the applicant, be
FA699-2016.doc
adjusted out of the said amount of compensation.
[vi] The applicant hall pay court fees to the extent of
excess amount of compensation awarded to him.
[vii] Award be drawn up accordingly."
6] Both the Insurance Companies while questioning the aforesaid
award urged that claim was initially preferred under Section 166 of
the Motor Vehicles Act (For short "M.V. Act") Subsequently, the
claimant converted the said proceedings into one under Section 163-
A of the M.V. Act. Under Section 163-A of the M.V. Act, claim is
maintainable only in case if annual income of the claimant is less than
Rs 40,000/-. According to them, Tribunal committed an error in
entertaining the proceedings and awarding compensation by
considering notional income of the claimant at Rs 5000/- per month
i.e. annual income of Rs 60,000/-. It is further claimed that even
though initially proceedings were preferred under Section 166 of the
M.V. Act., once the same were converted to be one under Section
163-A of the M.V. Act, Tribunal is duty bound to decide the same
under the later provision by considering income less than Rs 40,000/-.
FA699-2016.doc
7] Counsel appearing for Reliance General Insurance Company Ltd
would also urge that there was breach of policy and as such, Appellant
cannot be held responsible. Similarly, Counsel for Iffco Tokio General
Insurance Co. Ltd would urge that vehicle which was stationery
(Motor Trailer) was insured with the Appellant. There is no finding
that the said Tanker was unlawfully parked which led to accident and
still the said Tanker owner and the Appellant-Insurance Company are
held to be liable.
8] While countering the aforesaid submissions, Counsel for the
claimant would urge that, she has no objection to consider the claim
in the present Appeals to be one under Section 163-A of the
unamended M.V. Act. She would urge that if this Court can decide the
matter here, Respondent No.1 will forgo his annual earning and
restrict his claim to Rs 3300/- per month of earnings. In addition, her
contentions are considering disability caused because of injuries, the
claimant has suffered 100% loss of earning which the Tribunal has
failed to consider. As such, she has sought enhanced compensation.
FA699-2016.doc
9] I have considered the aforesaid submissions.
10] It appears that and rightly so pointed out by the Counsel for the
Appellant that the Award is delivered by entertaining Claim Petition
preferred under Section 163 of the M.V. Act. Even in the impugned
judgment, particularly in para 11, the Tribunal was sensitive to the
fact that Claim Petition is preferred under Section 163-A of the M.V.
Act. However, Tribunal while doing so in para 15 has recorded a
finding that notional income of the claimant has to be considered as
Rs 5000/- per month i.e. Rs 60,000/- per annum. The said
consideration by the Tribunal, in my opinion, goes contrary to the very
claim under Section 163-A of the M.V. Act. Apart from above, claim of
the Appellant- Iffco Tokio General Insurance Co. Ltd that insured
vehicle i.e. stationery Tanker cannot be held responsible is not at all
dealt with. Apart from above, claimant has also sought enhanced
compensation by canvassing that there is 100% loss of earning.
11] In the light of aforesaid observations, case for remand is made
out. The award impugned delivered by the Claims Tribunal on
FA699-2016.doc
06/05/2015 is hereby quashed and set aside. Counsel for the
Appellants and Claimant assure that they shall appear before the
Tribunal on 22nd August, 2022 and Tribunal shall proceed ahead with
hearing of the Claim Petition on its own merit and decide the same
expeditiously and in any case by 21/11/2022.
12] Needles to clarify that it shall be open for the Claimant to
convert the Claim Petition to one under Section 166 of the M.V. Act
from Section 163-A of the M.V. Act.
13] Both these Appeals stand partly allowed in the aforesaid terms.
14] Entire amount deposited shall be transferred to the Claims
Tribunal in the pending Claim Petition with accrued interest thereon.
16] In view of disposal of appeals, nothing survives in the above
Civil Applications and they are also disposed of.
( NITIN W. SAMBRE, J. )
