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Bombay High Court
The New India Assurance Co. Ltd. vs Prakash Pandurang Gaikwad (Deceased) ... on 16 January, 2026
2026:BHC-AS:1987 95 FAST 32284-22 WITH IA 739-23-C.DOC
Priya Soparkar
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL (ST.) NO.32284 OF 2022
WITH
INTERIM APPLICATION NO.739 OF 2023
IN
FIRST APPEAL (ST.) NO.32284 OF 2022
The New India Assurance Co. Ltd. ...Appellant
Versus
Prakash Pandurang Gaikwad (Since deceased) ...Respondents
through legal heirs Ms. Jyoti P. Gaikwad and ors.
Mr. S. S. Dwivedi, for the Appellant.
Mr. Sarthak Diwan, for the Respondent No.6.
CORAM: R. M. JOSHI, J.
DATED: 12th JANUARY, 2026.
PC:-
1. This Appeal filed by the Insurer of one of the motor-vehicle
involved in the accident in question takes exception to the
judgment and award dated 5th August, 2022 passed in M.A.C.P No.
558 of 2009, essentially on the ground that the Tribunal has erred
in holding composite negligence of the drivers of both vehicles in
occurrence of the accident and has failed to apportion the liability
of payment of compensation.
Digitally
signed by
PRIYA
PRIYA RAJESH
RAJESH SOPARKAR
SOPARKAR Date:
2026.01.17
11:26:14
+0530
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2. Learned counsel for the Insurer submits that admittedly in
this case two vehicles are involved in occurrence of the accident
i.e. the car bearing registration No.MH-14 AH-3160 owned by
original Opponent No.1 and insured with present Appellant and
motor-cycle bearing registration No.MH-12 DP-9300 owned by the
Opponent No.3 and insured with Opponent No.4 i.e. Respondent
No.6 in the present appeal.
3. It is his submission that having regard to the facts on record,
the learned Tribunal ought to have held drivers of both vehicles
equally negligent for the occurrence of the accident and should
have apportioned the liability of payment of compensation equally.
4. It is his further submission that since the Appellant has
deposited entire amount of compensation before the Tribunal, so
also Respondent No.6-Insurer has deposited a sum of
Rs.15,72,765/- before the Tribunal. No prejudice is likely to be
caused to the Claimant, if the said apportionment is done in this
appeal.
5. Learned counsel for the Respondent No.6-Insurer of
offending motor-cycle claimed that the rider of the motor-cycle
cannot be held responsible for occurrence of the accident. Without
prejudice to the same, it is his statement that in any event, the
contributory negligence of the rider of the motor-cycle cannot
exceed 50%. He also makes statement of having deposited Rs.
15,72,765/- before the learned Tribunal.
6. The statements made by the learned counsel for Appellant
and Respondents No.6 with regard to deposit of amount of
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compensation before Tribunal are accepted and relying upon the
same, following order is passed.
7. Perusal of the record indicates that there is involvement of
motor-cycle and car in the occurrence of the accident. From police
papers it can be seen that the accident has occurred on road
intersection. Though it is claimed that the accident occurred as the
rider of the motor-cycle came in excessive speed and gave dash to
the motor car, which ultimately dashed against the deceased
pedestrian. It is however pertinent to note that having regard to
the spot of the accident both rider of the motor-cycle as well the
driver of the car ought to have been taken care in order to ensure
that no accident occurred. Drivers of both vehicles seem equally
responsible for accident. In any case since deceased is pedestrian
and having not contributed in occurrence of the accident, as rightly
held by Tribunal, this is case of composite negligence of two
vehicles in causing of accident. The law on the point of liability of
payment of compensation in case of composite negligence is fairly
settled to say that it is open for the Claimants to seek recovery of
the compensation from any one or both joint tort-feasures. In such
circumstances, it was not open for the Tribunal to apportion the
percentage of payment of compensation by Opponents. Tribunal
therefore at the stage of deciding claim petition has not committed
any error in not apportioning the amount of compensation
between them.
8. It is however now sought to be contended that since the
Insurers of both offending vehicles have deposited entire amount
of compensation entitled by Claimants, there would be no reasons
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to apportion the amount of compensation between the original
Opponents. In this regard, statements made by learned counsel for
Appellant-Insurer and Respondent No.6-Insurer are recorded
herein above. It is their contention that the issue of apportionment
may be decided in this appeal. In view of the fact of deposit of
amount of compensation by both Insurers.
9. The Courts are required to decide the issue of controversy
between the parties and in view of the fact that entire
compensation is deposited by Appellant-Insurer and 50%
compensation that Rs.15,72,765/- is deposited by the Respondent
No.6-Insurer, to meet ends of justice and to resolve the dispute
between two Insurers with respect to payment of amount of
compensation, appropriate order is required to be passed. Though
it is not clearly admitted by the counsel for Appellant and
Respondent No.6 about the liability and the negligence of their
respective vehicle in occurrence of accident, but practically both
Insurers seek limiting of their liability to the extent of 50% each.
10. In such circumstances, no prejudice much less any
irreparable loss will be caused to the Claimant, if apportionment of
the compensation payable by the owners and Insurer is done in
this Appeal.
11. In the peculiar facts of the case, following order is passed:-
ORDER
i. The judgment and award dated 5th August, 2022 passed by
the Tribunal is modified to the following extent:
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The Opponents, owners and insurer of the respective
vehicle are liable to pay jointly and severally 50%
compensation as determined by the Tribunal.
ii. Rest of the judgment and award remains unchanged.
iii. Claimants be permitted to withdraw Rs.15,72,765/- with
accrued interest deposited by the Respondent No.6-Insurer.
Claimants be further allowed to withdraw the balance amount of
compensation with interest as directed by Tribunal from the
amount deposited by Appellant-Insurer.
iv. After the payment of entire amount of compensation as per
order of Tribunal to the Claimants, the balance amount deposited
by Appellant-Insurer be refunded to it.
v. Tribunal to ensure that refund is allowed only after entire
compensation entitled by Claimants is received by them.
vi. In case it is found that the entire compensation as directed
by Tribunal is not deposited and therefore, not paid to Claimants,
the issue of apportionment as done herein shall stand vacated
without reference to this Court and appeal shall stand dismissed.
(R. M. JOSHI, J.)
{
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