Bombay High Court
The New India Assurance Co. Ltd, Thr The ... vs Balaram Sakharam Shigne And Anr on 30 June, 2025
2025:BHC-NAG:6262
-- 1 -- FA 314.2010 (J).doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
FIRST APPEAL NO. 314 OF 2010
The New India Assurance Co. Ltd.
Through the Manager,
Dr. Ambedkar Bhavan, 4th Floor, .. Appellant
(Original opponent No.2)
MECL Building, Seminary Hills,
Nagpur
Versus
1) Balaram Sakharam Shingne
age about 50 years, Occ : Labourer,
R/o Hivara Ashram, Vivekanand (Original Claimant)
Nagar, Tq. Mehkar, District Buldhana
2) Sheikh Ismail Sheikh Musleem .. Respondents
age - Major, Occ : Business
R/o Ward No.17, Bagwanura,
Tq. Mehkar District Buldhana
Owner of Matador No. MH-20-F-6187
---------------------------------------------------------------------------
Mr. Sandip Marathe, Advocate for the petitioner.
Mr. M.P.Kariya, Advocate for respondent No.1.
Mr. Rahul Ghuge, Advocate for respondent No.2.
---------------------------------------------------------------------------
CORAM : ABHAY J. MANTRI, J.
DATED : JUNE 30, 2025
ORAL JUDGMENT
Heard finally with the consent of the learned counsel
appearing for the parties.
PAGE 1 OF 9
-- 2 -- FA 314.2010 (J).doc
(2) The appellant New India Assurance Company Ltd.
challenges the order dated 09/05/2009 passed below Exh.5 in MACP
193/2006, by the learned Motor Accident Claims Tribunal (hereinafter
referred to as 'Tribunal'), whereby directed the appellant and
respondent Nos.2 do jointly and severally pay compensation amount of
Rs.25000/- to the applicant/respondent No.1.
(3) On 16/08/2001, the applicant/respondent No.1, Balaram,
was going in the Metador bearing MH-20-F-6187 (for short, Matador)
of opponent No.1/respondent No.2, Sheikh Ismail, as a 'Cleaner' from
Hiwraashram to Mehkar, and on the way the said Metador turned turtle,
and an accident occurred. In the said accident, Respondent No. 1
sustained injuries. Accordingly, an FIR was registered against the driver
of the Metador. Due to the said accident respondent No.1 Balaram had
sustained 40% permanent disability, therefore, he has filed claim
petition before the learned Tribunal, wherein he has filed application
under Section 140 of the Motor Vehicles Act, 1988 (herein after
referred to as 'the Act') for grant of compensation under 'no fault
liability'. The appellant and respondent No.2 opposed the said
application. After considering the rival contentions, the learned Tribunal
held that the appellant and respondent No. 2 are jointly and severally
liable to pay a compensation of Rs. 25,000 to respondent No. 1,
Balaram. Aggrieved by the said order, the appellant Insurance
Company has preferred this appeal.
PAGE 2 OF 9
-- 3 -- FA 314.2010 (J).doc
(4) Having heard the rival submissions and perusal of the
record, the following point arises for the determination :-
1) Whether any interference is required in the
impugned order?
(5) Learned counsel for the appellant vehemently contended
that the respondent No.2, the owner of the vehicle, has categorically
denied that the claimant was travelling in the Matador on the date of
the accident. The appellant Insurance Company also categorically
denied that the claimant was travelling in the said vehicle as 'Cleaner',
but 'averred that he was travelling as a fare-paying passenger'. The
learned Tribunal did not consider the above facts and erred in allowing
the application as stated above.
(6) On the other hand, learned counsel for the respondent
Nos.1 supports the order passed by the learned Tribunal and contended
that the question of travelling of respondent No.1 in the Metador as a
'Cleaner' or 'fare paying passenger' will be determined after the
evidence of both parties and therefore, submitted that no interference
is required in the impugned order.
(7) Having heard the rival submissions and perusal of the
record, I would like to reproduce Section 140 of the Act, which reads
thus :-
PAGE 3 OF 9
-- 4 -- FA 314.2010 (J).doc
"140. Liability to pay compensation in certain cases on the principle of no fault.--
(1) Where death or permanent disablement of any person has resulted from an
accident arising out of the use of a motor vehicle or 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 fixed sum of 1 [fifty thousand
rupees] and the amount of compensation payable under that sub-section in
respect of the permanent disablement of any person shall be a fixed sum of 2
[twenty-five 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 the 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 given under any other law
shall be reduced from the amount of compensation payable under this section or
under section 163A."
(8) On a plain reading of the above provision, it is evident
that while considering the application under section 140 of the Act, the
learned Tribunal has to consider the following factors only:
(i) an accident arising out of the use of a motor vehicle or
motor vehicle/s leading to the death or permanent
disablement of any person,
(ii) Sub-section (2) provides for a fixed amount of
compensation
PAGE 4 OF 9
-- 5 -- FA 314.2010 (J).doc
(iii) Sub-section (3) provides that the claimant shall not be
required to plead and establish that the death or
permanent disablement in respect of which the claim has
been made was due to any wrongful act, neglect or
default of the owner or owners of the vehicle or vehicles.
(9) It is to be noted that the appellant does not dispute that
the respondent No.1 was travelling in the said Matador at the time of
the occurrence of the accident on 16/08/2001. At that time, the
Matador was insured with the appellant. Similarly, it is not in dispute
that the said Matador was owned by respondent No. 2 and insured with
the appellant. Likewise, the appellant has produced a permanent
disability certificate in "Form B" issued by the Medical Officer in charge
of Buldhana, who had an M.S. (Ortho) degree. Which certified that the
respondent No.1, Balaram, had sustained disability to the extent of
40%. However, the only grievance of the appellant was that the owner
of the Matador had committed a breach of the policy. Therefore, the
appellant is not liable to pay compensation. On perusal of the
impugned order, it appears that the learned Tribunal has considered
these factors and consequently allowed the application under Section
140 of the Act of 1988.
(10) The appellant's grievance is that respondent No.2 owner
of the vehicle denied that claimant was travelling by the Matador on the
PAGE 5 OF 9
-- 6 -- FA 314.2010 (J).doc
date of the accident, however, on the contrary the appellant Insurance
Company itself in their written statement averred that claimant was
travelling in the Matador as a fare paying passenger, these two stands
are contradictory to each other. Moreover, the question of the
determination of the status of the respondent No.1, whether he was
seated in the said Matador in the capacity of 'Cleaner' or a fare-paying
passenger, would be determined after adducing the evidence by the
parties and not at this preliminary stage. Additionally, respondent No. 1
complied with the requirements of Section 140 of the Act. Therefore,
prima facie, I do not find substance in the contention of learned
counsel for the appellant in that regard.
(11) Learned counsel for the appellant Insurance Company
has relied upon the judgment in New India Assurance Co. Ltd. vs. Puja
Satish Gavali reported in (2019) SCC Online Bombay 1547 and
submitted that in view of the mandate in above decision, the appellant
is entitled to ask for a refund of the compensation/amount deposited in
the Court or, may recover it from the owner of the Matador. It is
pertinent to note that in the said case, after the conclusion of the Trial,
based on the evidence, the court held that the deceased was a
'gratuitous passenger' or 'fare paid passenger' in the vehicle and
cannot be termed as 'third party'. However, in the case in hand
evidence is yet to be adduced so the question of the determination of
PAGE 6 OF 9
-- 7 -- FA 314.2010 (J).doc
the status of the respondent No.1, whether he was seated in the said
Matador in the capacity of 'Cleaner' or a fare-paying passenger, would
be determined after adducing the evidence by the parties and not at
this preliminary stage. Thus, the mandate in the above decision is
hardly of any assistance to the appellant in support of its defence.
(12) In the case in hand, as per the order of this Court, the
appellant has deposited the entire amount of 'no fault liability' in this
Court, and the matter was admitted on 05/04/2010. The Record and
Proceedings of the learned tribunal were called, and since then, the
original petition has been pending. It also appears that since 2010, the
amount has been in this Court; therefore, it is required to be
transferred to the learned Tribunal, considering the controversy that
arises in the case in hand.
(13) I would like to refer the judgment of the Hon'ble Apex
Court in the case of Eshwarappa alias Maheshwarappa and another
vs. G.S.Gurushanthappa and another (2010) 8 SCC 620 , wherein the
Hon'ble Apex Court after considering various provisions of the Act
categorically held that under section 140 of the Act one may claim
compensation under no-fault and therefore, directed the Insurance
Company, to pay Rs.25000/- along with simple interest @6%p.a. to the
appellant, therein. Thus, the case at hand is covered by the above-
cited judgment.
PAGE 7 OF 9
-- 8 -- FA 314.2010 (J).doc
(14) Upshot of the above discussion and considering the
factual position, that the appellant is not disputing that the claimant
was occupant of the said Matador, which was involved in the accident
and insured with the appellant, in such an eventuality, as per the law
laid down in the case of Eshwarappa (supra), the appellant Insurance
Company is liable to pay Rs.25000/- to the claimant along with interest
accrued thereon. It is made clear that if the appellant succeeds before
the learned Tribunal, the appellant is entitled to recover the same from
the owner of the Matador, i.e. respondent No.2, as observed in the
judgment of Puja. (supra).
(15) Thus, considering the above discussion and mandate of
Section 140 of the Act of 1988, as well as the law laid down by the
Hon'ble Apex Court in Eshwarappa (supra), I do not find any perversity
or illegality in the impugned order to interfere in the appeal. Hence, I
answer the point in the negative. The appeal being bereft of merit,
stands dismissed. Parties to bear their own costs.
(16) The Registry is directed to transfer the amount deposited
by the appellant Insurance Company, along with accrued interest
thereon, to the learned Tribunal at Buldhana to disburse it to
Claimant/Respondent No. 1.
PAGE 8 OF 9
-- 9 -- FA 314.2010 (J).doc
(17) Needless to clarify that since 2006, the petition has been
pending; therefore, the learned Tribunal should endeavour to dispose of
the same as early as possible, in any case within six months from the
receipt of the record and proceedings.
[ ABHAY J. MANTRI, J. ]
KOLHE
Signed by: Mr. Ravikant Kolhe PAGE 9 OF 9
Designation: PA To Honourable Judge
Date: 04/07/2025 13:28:00
