Bombay High Court
Maheboobkhan Rashidkhan Pathan vs Gautam Bhikan Lokhande And Ors on 15 October, 2025
2025:BHC-AUG:29267
(1) FA-433-2014
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 433 OF 2014
WITH
CIVIL APPLICATION NO.10117 OF 2010
WITH
CIVIL APPLICATION NO.10118 OF 2010
Maheboobkhan s/o. Rashidkhan Pathan
(Since deceased) through his L.R.s.
1] Fatimabi Meheboobkhan Pathan
Age: 64 years, Occu: Household.
2] Mushtaqkhan Meheboobkhan Pathan
Age: 41 years, Occu: Business,
House No.412, In front of K.E.M. Hospital,
Near Anglo Urdu High School,
Davi-Galli, Sangamner,
Dist. Ahmednagar.
3] Nahid Mohmmad Kasim Shaikh
Age: 39 years, Occu: Household,
R/o. Vasant Tekdi, Aurangabad Road,
Ahmednagar.
4] Asama Mohammed Ashraf Shaikh
Age: 37 years, Occu: Household,
R/o. Flat No.503 Gul Hasan Complex,
Unique Society, Pipe Road,
Kurla (West), Mumbai.
5] Muddasar Khan Meheboobkhan Pathan
Age: 34 years, Occu: Nil.
R/o. Flat No.601, Bhimi Mohan
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Shrishti Kachore Patri Bridge,
Kalyan (East), Mumbai.
6] Fatimkhan Maheboobkhan Pathan,
Age: 32 years, Occu: Nil.
R/o. Flat No.601, Bhimi Mohan
Shrishti Kachore Patri Bridge,
Kalyan (East), Mumbai. ...APPELLANTS
VERSUS
1] Gautam s/o. Bhikan Lokhande,
Age: 37 years, Occu: Labour,
R/o. Kankadwati Nagar,
in Tenabai Chava Room Sakhar
Karkhana Kannad, Tq. Kannad,
Dist. Aurangabad. (Orig. Claimant)
2] Jabbar S/o. Chennu Patel
Age: Major, Occu: Truck Owner,
R/o. At and post tq. Newasa,
Dist. Ahmednagar.
3] Respondent No.3 dismissed
as per Court's order dtd.18.01.2013.
4] The United India Insurance Company Ltd.
First Floor, Hotel Karam,
Infront of Bus stand,
Sangamner, Tq. Sangamner,
Dist. Ahmednagar. ...RESPONDENTS
.....
Mr. R. L. Kute, Advocate for the Appellant.
Mr. P. F. Patni, Advocate for the Respondent No.1.
Mr. Atul B. Gatne, Advocate for Respondent No.4 in CA/10118/2010.
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CORAM : KISHORE C. SANT, J.
RESERVED ON : 24th SEPTEMBER 2025.
PRONOUNCED ON : 15th OCTOBER 2025.
ORDER :
-
CIVIL APPLICATION NO.10118 OF 2010
1. This application is for allowing the applicant to add Insurance
Company as Respondent No.4 to the First Appeal.
2. Considering the reasons stated in the application, this civil
application is allowed in terms of prayer clause (A).
3. The applicant to carry out necessary amendment in the appeal as
well as connected civil applications.
FIRST APPEAL
1. Heard the learned Advocates for the parties.
2. This appeal is filed by original respondent No.3, owner of the
vehicle, challenging the Judgment and Order passed by the learned
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Member of the Motor Accident Claims Tribunal, Aurangabad, dated 06-
06-2007, passed in MACP No.620 of 2000, wherein the present
appellant and original opponent No. 2, i.e. driver of the vehicle, are
directed to pay a compensation of Rs. 1,35,000/- inclusive amount of
"no fault liability" with interest at the rate of 7.5% per annum from the
date of claim petition.
3. The respondent No. 1 is the claimant who had filed the claim
petition seeking compensation as he received an injury and had suffered
a disability. Respondent No.2 is the original respondent No.1.
Respondent No. 3 is the driver of the vehicle owned by the present
appellant. In the first appeal, now the Insurance Company is also added
as a party Respondent No.4. The Appeal is dismissed against the
respondent No. 3.
4. The facts, in short, are that the injured Gautam Lokhande was
travelling in truck bearing No. MH-17-A-5105 on 11-05-1999, carrying
sugarcane from village Chapaner to Sangamner for its supply. The
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driver of another vehicle came in a rash and negligent manner and could
not control his vehicle. The truck, therefore, turned turtle. As a result,
the hands of the claimant got entangled in the steering rod and he
became unconscious. He was shifted to the hospital. In the accident, he
suffered two fracture injuries to both his hands. A crime was registered
with the police station against original opponent No.2 i.e. present
respondent 3.
5. The claimant, therefore, approached the Claims Tribunal by filing
Motor Accident Claims Petition. His case is that in the accident, he
received an injury and suffered 32% permanent disability. The opponent
No.3 was the owner of the vehicle. The vehicle was, thereafter,
purchased by original opponent No. 1, and therefore, he has joined them
as a party. It is the defence of the respondent No. 3 that he sold the
vehicle prior to the date of accident. The opponent No. 2 was not his
employee. The opponent No. 3 resisted the claim and denied the
allegations against him.
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6. On considering the evidence and trial, the learned Tribunal held
that the original opponent No.1 was not the owner on the date of
accident, as he purchased the vehicle after date of accident. On the date
of accident, it was opponent No.3 who was the owner and opponent No.
2 was driving the vehicle as his driver, and thus fastened the liability
upon original opponent Nos. 2 and 3. The respondent Nos. 3 has thus
filed appeal before this Court.
7. After filing of the appeal, the appellant found that the vehicle was
insured with United India Insurance Company Limited and he filed an
application for joining the said company as a respondent.
8. After joining of the Insurance Company as a party, it is also one of
the grounds taken by the appellant now that since the vehicle was
insured with opponent Insurance Company, the liability would be of the
Insurance Company to pay the compensation.
9. Learned advocate Mr. Gatne for the Respondent Insurance
Company, however, vehemently opposes the claim. His main ground is
that in the MACP, the company was not a party. It was the duty of the
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owner of the vehicle to point it out to the Court that the vehicle was
insured and Insurance Company was a necessary party. The Insurance
Company could not get a chance to defend the claim petition and put-
forth its case. The Insurance Company, therefore, cannot be fastened
with the liability. In the alternative, he submits that the Insurance
Company needs to be given an opportunity to defend the claim and
therefore, this is a fit case to remand the matter for fresh trial. The facts
and the findings by the MACP are not seriously in dispute. The question
is mainly as to who should bear the burden of the interest and the claim
amount.
10. Learned Advocate Mr. Patni appearing for respondent No.1,
original claimant, submits that he is not concerned with the question of
liability as he is the claimant and he should get the amount of
compensation alongwith interest. Because of the dispute between the
Insurance Company and the appellant, it is the claimant who is suffering
and is not getting any amount towards compensation though there is
already a judgment and award in his favour.
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11. It is admitted fact that the Insurance Company was not a party
throughout the trial. The appeal was filed in the year 2010 and it is
thereafter application came to be filed by the appellant for adding the
Insurance Company as a party. The said application was initially rejected
in 2014 itself. However, thereafter the review application was filed and it
is on 09-03-2022, that the review application came to be allowed and
the Insurance Company came to be added as a party. It is clearly seen
that though the vehicle was insured, the Insurance Company was not
added as a party. This is clearly due to the negligence of the appellant.
It is the justification of the appellant that a loan was taken for purchase
of the vehicle, the loan was advanced by the bank, and it is the bank,
who paid the premium of the insurance and got the vehicle insured. This
fact was not within the knowledge of the appellant. During the
execution proceedings, when the appellant took search of the loan file,
he found that the vehicle was insured and it is thereafter, he filed an
application for adding Insurance Company as a party. The Insurance
Company though was a necessary party, for want of knowledge, it could
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not be pointed out in the trial Court.
12. On the contrary, it is the defence of the Insurance Company, as
already stated, that even if the liability is fastened upon the Insurance
Company, Insurance Company would not be liable to pay interest for the
period for which it was not a party.
13. Once the vehicle was insured, it was necessary for the Insurance
Company to accept the liability. There is no dispute that the vehicle was
insured on the date of accident. It was equally necessary for the
appellant to be vigilant and to bring this fact to the notice of the Court
that the vehicle was insured on the date of accident so that the
Insurance Company could have contested the claim by participating in
the proceedings. It is thus clear that it is the negligence on the part of
the owner in not bringing the Insurance Company on record.
14. At the same time, claimant cannot be faulted with for not making
Insurance Company as a party. It is not the case that the claimant was
made aware of the fact of insurance of the vehicle. The claimant,
therefore, cannot be deprived of the compensation.
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15. On going through the judgment and the evidence, it is clearly
established that the accident took place because original opponent No. 2
was negligent in driving the vehicle. The learned Tribunal has rightly
exonerated original opponent No.1 as he was not the owner of the
vehicle on the date of accident. It is the opponent No.3 who was the
owner of the vehicle. This Court thus finds that there is no illegality or
perversity in the judgment passed by the learned Member of the
Tribunal. Here the question is only about the liability of payment of
compensation and the amount of interest. The Court has awarded the
interest at the rate of 7.5 % per annum.
16. This Court finds that till the date of joining of the Insurance
Company, the Insurance Company was also not aware of the
proceedings. Thus, it was deprived of the opportunity to defend the
proceedings. No doubt about this fact. In normal course, this Court
would have remanded the claim for fresh trial to the trial Court. This
Court, however, finds that the accident has taken place long back. It
would not be in the interest of justice now to remit the matter back for
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fresh trial as it would unnecessarily deprive the claimant, who has
already succeeded in the trial, of compensation for a further period.
17. Considering all these facts, I pass the following order:
ORDER
(i) First Appeal stands rejected.
(ii) The opponent No.4, Insurance Company shall pay
the compensation to the claimant.
(iii) The 50 % of the liability of the interest amount is to
be borne by the appellant himself and 50 % by the
Insurance Company. The compensation amount and the
interest part of each of the parties be deposited in the
office of this Court within eight weeks from today.
Amount to carry interest @ 6% p.a.
(iv) In case there is default on the part of any of the
parties, the liability for the interest shall be shifted totally
on such defaulting party.
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(v) After the amount is deposited, the orig. claimant is
permitted to withdraw the amount from the office of this
Court without requiring any formal application.
(vi) With this, first appeal stands disposed off.
(vii) In view of disposal of First Appeal, pending Civil
Applications, if any, do not survive and same stand
disposed off.
[KISHORE C. SANT, J.]
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