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2018 Supreme(Bom) 971
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
VIBHA KANKANWADI, J.
The United India Insurance Company Ltd. – Appellant
Versus
Hajrabi w/o. Sk. Laikoddin – Respondent
First Appeal No. 0448 of 2007
Decided on : 16-7-2018
Advocate Appeared:
For the Appellant :Mr. S.V. Kulkarni, Advocate
For the Respondent:Ms. A.N. Ansari, Advocate
Headnote:
Indian Penal Code, 1860 - Sections 279 and 304A - Motor Vehicles Act, 1988 - Section 166 - Accident - Amount of compensation - Claimants present respondent had come with case that deceased was husband of claimant father of claimant - Deceased had gone to meet his employer at about - He had gone on Hero Honda motorcycle bearing registration - Fitter present respondent - Said vehicle belong to original respondent present respondent - Said vehicle was insured with present appellant original respondent - Original respondent drove vehicle in rash and negligent manners result of which tire motorcycle got burst and both driver as well as pillion rider fell down – Held, Now it is to be noted in view of my finding to point Insurance Company ought not to have been saddled with amount of compensation since risk of pillion rider was not covered - Said finding to issue given by Tribunal is required to be set aside - Entire amount compensation whatever was ordered by Tribunal was deposited in this Court and by order passed on Civil Application Court permitted claimants to withdraw amount - Remaining amount to tune was to be invested with State Bank of Hyderabad – Earlier Insurance Company has deposited amount no fault liability and it was withdrawn by complainant - So also as aforesaid amount been withdrawn by them permission of this Court - Taking into consideration economic background of original claimants it will not be appropriate to pass an order of recovery from them regarding said amount - It would be in interest of justice to give liberty to present appellant Company to recover entire amount which it has paid deposited towards impugned award from original respondent – Appeal allowed
1. Present appeal has been filed by the Insurance Company original respondent no.03, challenging the judgment and award passed in Motor Accident Claim Petition No. 045 of 2005, by Member of the Motor Accident Claims Tribunal, Beed, on 18.01.2007, whereby, in all compensation of Rs. 3,21,500/, inclusive of amount of Rs. 50,000/towards no fault liability along with interest was awarded and the present appellant as well as respondent nos.04 and 05 were held jointly and severally liable to pay the said amount of compensation.
2. The claimants present respondent nos.01 to 03 had come with a case, that the deceased Shaikh Laikoddin Shaikh Afzaloddin was the husband of claimant no.01 and father of claimant nos.02 and 03. Deceased Shaikh Laikoddin had gone to Majalgaon to meet his employer at about 06.00 p.m. on 21.08.2004. He had gone on Hero Honda motorcycle bearing registration no. MH21/F5086 driven by one Sk. Naim Fitter present respondent no.05. The said vehicle belong to original respondent no.01 present respondent no.04. The said vehicle was insured with present appellant original respondent no.03. Original respondent no.02 drove the vehicle in rash and negligent manner, as a result of which the tyre of the motorcycle got burst and both driver as well as pillion rider fell down. Deceased had sustained serious injuries. He was admitted in Civil Hospital, Beed, and then was referred to Dhoot Hospital, Aurangabad. However, he succumbed to the injuries on 23.08.2004. First information report was lodged with Police. Prior to that, inquest panchanama and post mortem was executed. An offence punishable under Sections 279 and 304A of the Indian Penal Code came to be registered against original respondent no.02 vide Crime No. 90/2004. It was also contended that deceased Sk. Laikoddin was getting salary of Rs. 3,000/per month and Rs. 50/per day as Bhatta on tour. The claimants had claimed amount of Rs. 3,00,000/as compensation under Section 166 of the Motor Vehicles Act, 1988 [For short, "M.V. Act"].
3. The claim was resisted by respondent nos.01 and 02 by filing written statement at Exhibit 17 and by respondent no.03 at Exhibit 17. They all have denied the allegation that the respondent no.02 was rash or negligent while driving the motorcycle. The Insurance Company, in addition, has taken a defence that since the deceased was a pillion rider, his risk was not covered as per the terms and conditions of the insurance policy and therefore, the Insurance Company is not liable to pay any amount of compensation. Respondent no.02 was not holding a valid and effective driving license to drive the said motorcycle on the date of the accident and therefore, on this count also, the Insurance Company cannot be held vicariously liable to pay the compensation.
4. Taking into consideration the rival pleadings, issues came to be framed and evidence was led by the claimants. After hearing both sides, the learned Tribunal held respondent nos.01 to 03 liable to pay compensation to the claimants jointly and severally. It was directed that amount of Rs. 2,71,500/, which was excluding the amount of Rs. 50,000/towards 'no fault liability' along with interest be given from the date of the petition.
5. The Insurance Company is mainly challenging its liability to pay the compensation under the circumstances and taking into consideration the defence that was raised.
6. Heard learned Advocate Shri S.V. Kulkarni appearing for the appellant original respondent no.03. Heard learned Advocate Ms. A.N. Ansari for respondent nos.01 to 03 original claimants. Though respondent nos.04 and 05 were served, they failed to appear through Advocate.
7. Taking into consideration the controversy involved, following points arise for determination Findings and reasons for the same are as follows.
Sr. No.
Point
Answer
1.
Whether respondent no.03 Insurance Compa
