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2013 DIGILAW 2469 (BOM)

Oriental Insurance Company Limited v. Tularam

2013-12-03

A.P.BHANGALE

body2013
Judgment 1. The appellant is aggrieved by judgment and award dated 22.8.2012, passed by the learned Member, Motor Accident Claims Tribunal, Wardha, under Section 166 of the Motor Vehicles Act, 1988 (for short, “of the Act”), in M.A.C.P. No. 179 of 2008, whereby the learned Tribunal partly allowed the petition holding that respondent Nos.2 and 3 along with appellant - The Oriental Insurance Company Limited, are liable to pay compensation of Rs.96,000/- with interest at the rate of six percent per annum from the date of the petition till realization payable to injured Tularam Gaikwad. 2. The facts in brief, are thus:- That on 25.5.2008, at about 7:00 p.m., claimant-Tularam was driving his motorcycle namely Hero Honda CD-Delux, bearing Registration No.MH-32/F-0843 with one Ravindra Patil, sitting as pillion rider, from Kharsoli to his village Jaurwada (Khurd). When claimant’s motorcycle had reached at Mouza Bela Fata, offending motor vehicle i.e. tractor and trolly bearing Registration No.MH-31/BB-4515 gave dash to the motorcycle driven by the claimant, as tractor and trolly was driven rashly and negligently. In the result, the claimant and pillion rider who were on motorcycle fell down and the claimant received injuries to his leg and right hand including multiple fractures. 3. The claimant was taken to “Suretech Hospital and Research Centre, Nagpur” and was admitted as an indoor patient till 7.6.2008. According to the claimant, he was required to undergo operation and surgery for his leg and hand and spent an amount of Rs.1,75,000/-. 4. The claim was opposed by appellant - The Oriental Insurance Company Limited mainly on the ground of Section 165 of the Act that when offending motor vehicle i.e. tractor and trolly bearing Registration No.MH-31/BB-4515, which was compulsorily insurable, was in fact not insured by the owner of the offending motor vehicle. Under these circumstances, even assuming that the appellant was insurer for Hero Honda motorcycle bearing Registration No.MH-32/F-0843 driven by injured claimant, the claim by injured claimant for compensation against his own insurer was not maintainable because the claimant cannot be described as “third party” within the meaning of Section 165 of the Act and, therefore, the award could not have been directed against the present appellant who was insurer of the motorcycle, which was dashed and damaged due to the accident as a result of rash and negligent driving of the tractor and trolly. The learned counsel appearing for the appellant, therefore, submitted that the driver and owner of the offending motor vehicle i.e. tractor and trolly who are impleaded as respondent Nos.2 and 3 in this appeal were answerable to satisfy the award to the exclusion of the appellant because the appellant insurer had no concern with the insurance of the offending motor vehicle which is described as tractor and trolly. Thus, it is submitted that the appeal deserves to be allowed by necessary modification of the award impugned which held the appellant responsible; contrary to law contained in Section 165 of the Act. No submissions are advanced regarding the quantum of compensation awarded on behalf of the appellant. 5. The learned counsel for the claimant on the other hand contended that the claimant had undergone surgery due to fractures suffered in his leg and hand and had to spend lot of amount. Therefore, he supported the impugned award. He has, however, not raised any cross objection in this appeal regarding the quantum of the amount of compensation. 6. The learned Counsel appearing for respondent Nos.2 and 3 who are driver and owner respectively of the tractor and trolly (offending motor vehicle) submitted that respondent No.4 – Sham Bhaiyyaji Deotale who was previous owner of the offending motor vehicle can also be held responsible jointly and severally along with respondent Nos.2 and 3. This submission prima faice cannot be accepted, because on the date of incident respondent Nos.2 and 3 were the driver and owner in respect of the tractor and trolly and merely because respondent No.4 was previous owner, he could not have incurred any liability for compensation jointly and severally along with respondent Nos.2 and 3. 7. Having considered the submissions advanced at bar and perusal of the relevant legal provision contained in Section 165 of the Act, the impugned award against the appellant passed by the learned Member, Motor Accident Claims Tribunal, Wardha, is not sustainable. It needs to be modified by excluding the appellant from any liability to pay the compensation for the accident occurred in question. Hence, order:- ORDER The appeal is, therefore, partly allowed, thus:- Respondent Nos.2 and 3 shall be jointly and severally responsible to satisfy the award in the sum of Rs.96,000/- along with interest at the rate of 6% from the date of petition till realization. Hence, order:- ORDER The appeal is, therefore, partly allowed, thus:- Respondent Nos.2 and 3 shall be jointly and severally responsible to satisfy the award in the sum of Rs.96,000/- along with interest at the rate of 6% from the date of petition till realization. The award passed as against the appellant is, however, set aside. Respondent Nos.2 and 3 shall also pay costs of the appeal to the claimant (respondent No.1). The appeal is disposed of accordingly. The amount including mandatory deposit, deposited by the appellant insurer be refunded back to the appellant along with interest accrued thereon, if any.