Bombay High Court
The National Insurance Co. Ltd. Nagpur, ... vs Smt. Asha Wd/O Mahendra Bharadwaj And ... on 23 September, 2024
Author: M.W. Chandwani
Bench: M.W. Chandwani
2024:BHC-NAG:10787
41.fa.1266.17.jud.doc 1/5
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL NO.1266 OF 2017
Appellant : : The National Insurance Co. Ltd.,
(On R.A. Ori. Resp. No.2) through its Divisional Manager,
D.O. No.IV, Durga Sadan, Balraj Marg, Dhantoli,
Nagpur : 440012.
- Versus -
Respondents : : 1. Smt. Asha wd/o Mahendra Bharadwaj,
(On R.A. Ori. Applicant Aged about 44 Yrs., Occ. Household.
No.1)
(On R.A. Ori. Applicant 2. Hindkumar Mahendra Bharadwaj,
No.2)
Aged about 22 Yrs., Occ : Student.
(On R.A. Ori. Applicant 3. Shubham Mahendra Bharadwaj,
No.3)
Aged about 20 Yrs., Occ : Student.
(On R.A. Ori. Applicant 4. Ku. Jyoti Mahendra Bharadwaj,
No.4)
Aged about 18 Yrs., Occ : Student.
All above r/o Qtr. No.17, Western Coal Fields Ltd.
Colony at Saoner, Tah. Saoner, Dist. Nagpur.
(On R.A. Ori. Respondent 5. Mahendra Madhukar Lule,
No.1)
Aged Major, Occ : Transport Business,
R/o Shop No.3, Ashirwad Complex,
Baidyanath Chowk, Nagpur 440 008.
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Mr. V.P. Maldhure, Advocate for the Appellant.
Mr. V.V. Asole, Advocate for Respondent Nos.1 to 4.
None for Respondent No.5.
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CORAM : M.W. CHANDWANI, J.
DATE : 23rd SEPTEMBER, 2024.
ORAL JUDGMENT :
With the consent of learned Counsels for the parties, the appeal
is taken up for final hearing.
02. Admit.
03. Correctness of the award dated 24/09/2016 passed by the Motor
Accident Claims Tribunal-1, Nagpur (hereinafter referred to as "Tribunal" for
short) in Claim Petition No.103/2012 is questioned in this appeal, whereby
the Tribunal directed the appellant and respondent No.5 to pay jointly and
severally, compensation of Rs.44,43,512/- along with interest at the rate of
7.5% per annum from the date of filing of the claim petition till realization of
the amount, on account of death of deceased Mahendra Dhuran Bharadwaj in
a vehicular accident that occurred on 17/12/2011.
04. Deceased Mahendra was proceeding on his motorcycle towards
Adasa from Dhapewada. At that time, a Travel Bus bearing registration
No.MH-31-CB-7700 (hereinafter referred to as "offending vehicle" for short),
which was insured with the appellant, was coming from the opposite direction
in high speed and gave a dash to the motorcycle of deceased Mahendra,
resulting into his death. Therefore, the dependents of the deceased filed a
claim petition before the Tribunal and by the impugned award, the same
came to be allowed. Feeling aggrieved with the impugned award, the present
appeal came to be filed.
05. The main contention raised in the appeal is that the Tribunal has
not considered contributory negligence on the part of the deceased. It is
contended that the road was 15 feet wide and the offending bus got damaged
from its right side. Therefore, according to the learned Counsel for the
appellant, there is negligence on the part of the deceased, while driving his
two wheeler. It is also one of the contentions that since the road was 15 feet
wide, the two wheeler should have passed easily from the side of the
offending vehicle, but the deceased drove his motorcycle negligently and
dashed against the offending vehicle.
06. The sum and substance of the argument of the learned Counsel
for the appellant is that there was negligence on the part of the deceased as
well and therefore, the Tribunal ought to have held that the deceased also
contributed to the negligence, which resulted into the accident.
07. Per contra, the learned Counsel for the respondents vehemently
submitted that the appellant did not examine any witness, not even the driver
of the offending vehicle to prove that there was negligence on the part of the
deceased as well. According to him, the offence was registered against the
driver of the offending vehicle holding him solely negligent for the occurrence
of the accident. Therefore, the Tribunal has rightly held that the driver of the
offending vehicle was negligent.
08. It is a matter of record that an offence against the driver of the
offending vehicle has been registered by the police, since the police found the
driver of the offending vehicle solely negligent as he was the driving the
vehicle in a rash and negligent manner. Though, the driver has been
acquitted by the learned Judicial Magistrate First Class, Kalmeshwar, District
Nagpur in the criminal case, but acquittal in the criminal trial does not
necessarily suggest that the driver was not negligent while driving the vehicle.
Let me state that the criminal cases are to be decided on the principle of
proving the facts beyond reasonable doubt considering the well known
principle that no innocent person should be punished. Whereas, inquiry in
claim petitions is of summary nature.
09. The spot-panchnama shows that the accident occurred at the
middle of the road. Further, the Tribunal in paragraph 17 of the award has
specifically recorded the finding that there were trees and bushes by the side
of the road and there was also a curve. Therefore, the bus driver ought to
have given sufficient space to the motorcycle rider for passing. Thus, there is
a prima facie finding in the police investigation that the driver of the
offending vehicle was at fault. Though, a specific plea has been taken into
consideration by the Tribunal about contributory negligence on the part of the
deceased, but nobody has been examined by the appellant to prove that the
deceased was driving the motorcycle in a rash and negligent manner.
10. Therefore, I do not find substance in the argument of the learned
Counsel for the appellant that the Tribunal erroneously recorded the finding
that the accident occurred due to sole negligence on the part of the driver of
the offending vehicle. No interference is required in the award passed by the
Tribunal. The appeal, being devoid of merits, is dismissed. The amount
deposited by the appellant is allowed to be withdrawn by respondent Nos.1 to
4 in the manner and on the terms and conditions imposed in the impugned
award. There shall be no order as to costs.
(M.W. CHANDWANI, J.)
*sandesh
Signed by: Mr. Sandesh Waghmare
Designation: PS To Honourable Judge
Date: 27/09/2024 17:03:53
