New India Assurance Company Ltd vs Waman Kalu Pawar And Ors
2022 Latest Caselaw 10618 Bom

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                                                                       1193.04FA

                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           BENCH AT AURANGABAD

                               FIRST APPEAL NO. 1193 OF 2004

                   The New India Assurance Company Ltd,
                   having it's Registered and Head office
                   at New India Assurance Building, 87,
                   M.G.Marg, Fort, Mumbai and Divisional office,
                   at Aurangabad and Nanded
                                                             APPELLANT
                                                       (Ori. Resp. No. 2)
                   -VERSUS-

          1.       Waman Kalu Pawar (died),
                   Through his LR's

          1-A      Janabai Waman Pawar
                   Age : 62 years, Occu. : Household,

          1-B      Baban Waman Pawar,
                   Age : 42 years, Occu. : Agriculture,

                   both R/o. : Parasram Naik Tanda,
                   Post. Mandvi, Tq. Kinwat, Dist. Nanded

          2.       Sunilkumar G., Age : Major
                   Occ : Business, R/o 129, Ratanlal Nagar,
                   Kanpur (U.P.)

          3.       National Insurance Company Ltd.,
                   Branch Kanpur, (U.P.).
                        .                           ..RESPONDENTS

                                  ...
          Advocate for Appellant : Mr.Mohit R. Deshmukh
          Advocate for Respondent No.3: Mr. V.N. Upadhye
                                      ...




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                                                                        1193.04FA

                                       CORAM : S.G.DIGE, J.

                                      RESERVED ON : 30.09.2022
                                      PRONOUNCED ON : 13.10.2022

          JUDGMENT :

Being aggrieved and dissatisfied by the

judgment and award passed by the Motor Accident Claims

Tribunal, Nanded, the appellant - original respondent no.2

preferred this appeal.

2. It is the contention of the learned counsel for

the appellant that the judgment and award passed by the

Tribunal against the appellant company is illegal, invalid

and against the provisions of law and facts of the case.

When the Tribunal has come to conclusion that the

offending vehicle i.e. truck was involved in the accident

then liability fastened on the appellant is illegal. The

learned counsel further submits that the Tribunal has failed

to take into consideration that the claimant/injured is the

owner of the vehicle i.e. Jeep, which was also involved in

the accident. The truck gave a dash to Jeep. Jeep was

1193.04FA

insured with the appellant company, therefore, the injured-

claimant is not a third party for the appellant company. The

Tribunal has mechanically passed the order holding that the

appellant company liable to pay the compensation without

considering the plea raised by the appellant. Hence

requested to allow the appeal. He relied on the judgment in

the case of Dhanraj Vs. New India Assurance Co. Ltd. and

another reported in (2004) 8 SCC 553.

3. It is the contention of the learned counsel for

the respondents that two vehicles were involved in the

accident. Injured was traveling in a jeep. The Jeep was

insured with the appellant. The Tribunal has passed the

order to pay compensation jointly and severally, which is

legal and valid.

4. I have heard all the learned counsel. Perused

the judgment and order passed by the Tribunal.

5. Issue involved in this appeal is whether the

owner of the Jeep can be considered as third party ?

1193.04FA

6. In my view, third party compensation claim

under the Motor Vehicles Act, 1988 (for short, "the M.V.

Act") arises out of tortuous liability. The first and primary

liability is of driver. The liability of owner is an indirect

liability (vicarious liability) that is counted absolute and at

par with the driver. Liability of insurer is contractual one.

Chapter XI of the M.V. Act entitles only third party to lodge

a claim either under section 166 or under section 163-A of

the M.V. Act. Therefore, the claimant or victim of the

accident must be a third party, which if not disentitles the

victim or his/her heirs to the compensation receivable

under this chapter. In the present case, at the time of

accident the respondent - original claimant was driving the

vehicle and he is also owner of the Jeep. The claimant has

added the Insurance Company of Jeep as party, whereas,

the F.I.R. is registered against the offending truck, who gave

dash to Jeep. In my view, as per the view of the Hon'ble

Apex Court in the case of Dhanraj Vs. New India Assurance

Co. Ltd., and another (supra), New India Insurance

Company is not liable to pay compensation to the owner of

1193.04FA

vehicle. In the present case there was contract between the

claimant and the appellant - Insurance Company. The

owner can not be considered as third party but, the Tribunal

has not considered this fact and has fastened liability

against the appellant as joint and severally, which is illegal.

7. In view of the above, I pass the following

order :-

ORDER

(i) The appeal is allowed.

(ii) The appellant - insurance company is exonerated

from paying compensation to the original claimant.

(iii) The appellant is permitted to withdraw the amount

deposited along with accrued interest including the

statutory amount.

          (iv)     No order as to costs.

                                                          [S.G.DIGE]
                                                            JUDGE
          SGA/-