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2012 DIGILAW 275 (BOM)

Jose Rodrigues v. Avelino Mascarenhas

2012-02-07

F.M.REIS

body2012
Judgment : 1. Heard shri m.s. Joshi, learned counsel appearing for the appellant, shri s.s. Kakodkar, learned counsel appearing for respondent no.1 and shri e. Afonso, learned counsel appearing for respondent no.3. 2. Admit. Heard forthwith with the consent of the learned counsel. Learned counsel shri s.s. Kakodkar, waives service on behalf of respondent no.1 and learned counsel shri e. Afonso, waives service on behalf of respondent no.3. 3. The above appeal challenges the order passed by the learned presiding officer of the motor accident claims tribunal at margao in claim petition no.48/2006 whereby an application under section 140 of the motor vehicles act, 1988 filed by respondent no.1 came to be disposed of holding that the appellant and respondent no.2 who are the owner and the driver of the vehicle were directed to jointly and severally pay the compensation to the tune of rs.25,000/- together with interest mentioned therein. The application came to be rejected as far as the respondent no.3 is concerned. 4. Being aggrieved by the second part of the impugned order the appellant has preferred the present appeal. 5. Shri m.s. Joshi, learned counsel appearing for the appellant has pointed out that the tribunal has erroneously come to the conclusion that as the claimant was a pillion rider, respondent no.3 was not liable to pay the compensation as there was breach of terms of policy as a pillion rider is not a third party within the meaning of provisions of section 147 of the motor vehicles act. Learned counsel further pointed out that the learned judge has erroneously relied upon the said provisions to exonerate the payment of compensation by respondent no.3 when the present proceedings are not against the insurance company or the driver of the motorcycle, but against the driver and the owner of another vehicle bearing no.ga-02-v-5813 which was owned by the appellant and driven by respondent no.2 and insured with the respondent no.3. Learned counsel further pointed out that the principles sought to be invoked by the learned judge whilst passing the impugned judgment are only in respect of the claim petition filed by the pillion rider against the owner of the motorcycle and the insurance company. Learned counsel further pointed out that the principles sought to be invoked by the learned judge whilst passing the impugned judgment are only in respect of the claim petition filed by the pillion rider against the owner of the motorcycle and the insurance company. Learned counsel has taken me through the impugned order and pointed out that the learned judge has erroneously come to the conclusion that respondent no.3 is not liable to pay the sum of rs.25,000/- under section 140 of the motor vehicles act. Shri m.s. Joshi, learned counsel in support of his submissions has relied upon the judgment of the apex court reported in 2008 all scr 1376 in the case of oriental insurance co. Ltd. V/s. Sudhakaran k.v. & ors. 6. On the other hand shri e. Afonso, learned counsel appearing for respondent no.3 has fairly conceded that the respondent no.3 is also liable to pay the amount considering that respondent no.3 is not the insurance company of the motorcycle, but of the other vehicle which was a matador tempo. 7. Having heard the learned counsel and on perusal of the record and taking note of the concession on the part of the learned counsel shri e. Afonso appearing for respondent no.3, i find that the learned judge was not justified to come to the conclusion that respondent no.3 was not liable to pay the said sum of rs.25,000/-. This view also finds support in the judgment of the apex court in similar circumstances in the case of oriental insurance co. Ltd. (supra). 8. In view of the above, i find that the directions given by the learned judge in the impugned order to pay the sum of rs.25,000/- only by the appellant and respondent no.3 cannot be sustained when such direction ought to have been given to the appellant, respondent no.2 and respondent no.3 jointly and severally. 9. In view of the above, i find that the impugned part of the order cannot be sustained and deserves to be quashed and set aside. 10. In view of the above, i pass the following order:o r d e r (i) the appeal is partly allowed. 9. In view of the above, i find that the impugned part of the order cannot be sustained and deserves to be quashed and set aside. 10. In view of the above, i pass the following order:o r d e r (i) the appeal is partly allowed. (ii) the impugned order is modified and the compensation of a sum of rs.25,000/- is directed to be paid by the appellant, respondent no.2 and respondent no.3 jointly and severally together with interest at the rate of 7.5% per annum from the date of the filing of the claim petition up to actual payment. (iii) the appeal stands disposed of accordingly with no order as to costs.