Bombay High Court
Bajaj Allianz General Insurance ... vs Hussainbi Sk [email protected] Babu And Ors on 6 October, 2022
Bench: S. G. Dige
{1} J FA-1117-2022
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 1117 OF 2008
Bajaj Allianze General Insurance Co.
through it Branch Manger,
Rajendra Chamber, Adalat road,
Aurangabad
...APPELLANT
(Original Respondent No.2)
VERSUS
1. Hussainbi Shaikh Rasool @ Babu
Age : 35 years, Occu. : Household,
2. Shaikh Imran Shaikh Rasool @ Babu,
Age : 16 years, Occu. : Student,
3. Shaikh Tasneem Shaikh Rasool @ Babu,
Age : 14 years (minor),
4. Shaikh Saddam Shaikh Rasool @ Babu,
Age : 11 years (minor),
5. Saheblal Maheboob Sab,
Age : 62 years, Occu. : Nil,
6. Maqboolbi Saheblal,
Age : 58 years, Occu. : Household,
Respondent Nos.2 to 4 are minors
u/g. of their mother i.e. respondent No.1.
All r/o. : Wajegaon, Nanded
7. Fattusab Kashimsab Ghorwade,
Age : Major, Occu. : Business,
R/o. : Nalegaon, Tq. Chakur,
Dist. Latur ...RESPONDENTS
(R.Nos.1 to 6 - ori. claimants
and R. No.7 - ori. rspdt No.1)
Pooja K.
::: Uploaded on - 10/10/2022 ::: Downloaded on - 11/10/2022 02:05:35 :::
{2} J FA-1117-2022
...
Mr. S.G. Chapalgaonkar - Advocate for Appellant
Ms. A.N. Ansari - Advocate for Respondent Nos.1 to 6
....
CORAM : S.G. DIGE, J.
RESERVED ON : 24.08.2022
PRONOUNCED ON : 06.10.2022
JUDGMENT :
. This appeal is preferred by the appellant - Insurance
Company against the order passed by the learned Motor
Accident Claims Tribunal, Nanded (for short 'the Tribunal')
below Exh.5 i.e. under Section 140 of the Motor Vehicles Act
(for short 'the M.V. Act').
2. It is contention of learned Counsel for appellant that,
the appellant had taken specifc plea in written statement
and denied the liability to pay compensation on the ground
that, deceased was travelling on the head of the tractor. The
seating capacity on the head of tractor was only one. The
risk of the passenger travelling on the tractor was not
covered under the policy. Further, there was breach of
permit as well as insurance policy conditions. The driver was
not holding valid and efective driving license. The police,
Pooja K.
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on investigation charge sheeted the driver for not holding
driving license. These facts are not considered by the
Tribunal and fastened the liability on appellant - the
Insurance Company.
3. It is contention of learned Counsel for respondents
that, at the time of passing of order under Section 140 of
the M.V. Act fault of other party is not necessary to be
considered. It was no fault liability. The Tribunal had passed
the order, considering all the aspects. Hence, the order
passed by the Tribunal is legal and valid.
4. I have heard both the learned Counsel. Perused order
passed by the Tribunal.
5. It is contention of learned Counsel for appellant that,
appellant is not liable to pay compensation on the ground
that, driver was not holding valid and efective license as
well as breach of policy terms and conditions. As issue
revolves in respect of under Section 140 of the M.V. Act it
reads as under :
140. Liability to pay compensation in certain cases on
the principle of no fault.-
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(1) Where death or permanent disablement of any
person has resulted from an accident arising out of the
use of a motor vehicle of motor vehicles, the owner of
the vehicle shall, or, as the case may be, the owners of
the vehicles shall, jointly and severally, be liable to
pay compensation in respect of such death or
disablement in accordance with the provisions of this
Section.
(2) The amount of compensation which shall be
payable under sub-section (1) in respect of the death
of any person shall be a fxed sum of [ffty thousand
rupees] and the amount of compensation payable
under that sub-section in respect of the permanent
disablement of any person shall be a fxed sum of
[twenty-fve thousand rupees].
(3) In any claim for compensation under sub-section
(1), the claimant shall not be required to plead and
establish that the death or permanent disablement in
respect of which claim has been made was due to any
wrongful act, neglect or default of the owner or owners
of the vehicle or vehicles concerned or of any other
person.
(4) A claim for compensation under sub-section (1)
shall not be defeated by reason of any wrongful act,
neglect or default of the person in respect of whose
death or permanent disablement the claim has been
made nor shall the quantum of compensation
recoverable in respect of such death or permanent
disablement be reduced on the basis of the share of
such person in the responsibility for such death or
permanent disablement.
[(5) Notwithstanding anything contained in sub-
section (2) regarding death or bodily injury to any
person, for which the owner of the vehicle is liable to
give compensation for relief, he is also liable to pay
compensation under any other law for the time being
in force :
Provided that the amount of such compensation
to be give under any other law shall be reduced from
the amount of compensation payable under this
section or under section 163-A].
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{5} J FA-1117-2022
6. The First Information Report of the accident shows
that, it was lodged by the brother of the deceased. In the
said F.I.R. it is mentioned that, the deceased was travelling
on the tractor bearing registration No. MH-24-D-2137. The
driver of the tractor drove the tractor in rash and negligent
manner due to which tractor is turtled in bed of river
resulting into death of the deceased. From this F.I.R. it does
not appear that whether deceased was sitting on head of
the tractor of not? In respect of breach of terms of Insurance
Policy, evidence is required to be seen in that regard.
Hence, application under Section 140 of the M.V. Act can be
heard with application under Section 166 of the M.V. Act.
7. In view of the above, I pass the following order :-
ORDER
(a) Appeal is allowed.
(b) The order passed by the Tribunal below Exh.5
dated 19.12.2007 is quashed and set aside.
(c) The application under Section 140 of the M.V.
Act be heard along-with Claim Petition under
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Section 166 of the M.V. Act. The claim under
Section 140 of the M.V. Act is subject to
outcome of fndings under Section 166 of the
M.V. Act.
(d) The amount deposited by the appellant under
Section 140 of the M.V. Act be transmitted to
the Motor Accident Claims Tribunal, Nanded.
(e) Appeal is disposed of in above terms.
(S.G.DIGE, J.)
Pooja K.
