Advocates:
['A M GHOLAP', 'A B GATNE', '', 'D R JAYBHAR']

1 943-fa-143-06 Jt.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

FIRST APPEAL NO. 143 OF 2006

Smt. Shobha W/o Sudhakar Palve,

Age - Years, Occu.: Agri & Owner,

R/o Ghatshiras, Tq. Pathardi,

Dist. Ahmednagar

… Appellant

Versus

1. Sow. Pushpabai W/o Babasaheb Tupe,

Age – 45 years, Occu.: Nil,

R/o Ghatshiras, Tq. Pathardi,

Dist. Ahmednagar.

2. Branch Manager,

United India Insurance Co. Ltd.,

Kisan Kranti Building Market Yard,

Ahmednagar.

… Respondents

....

Mr. A.M. Gholap for the Appellant

Mr. D.R. Jaybhar, Advocate for Respondent No.1

Mr. A.B. Gane, Advocate for Respondent No.2

….

CORAM : SHRIKANT D. KULKARNI, J.

Reserved on : 08.12.2021

Pronounced on : 09.12.2021

JUDGMENT :-

1.

Feeling aggrieved by the impugned judgment and award

passed in M.A.C.P. No.728/2001 by the Member, Motor Accident

Claims Tribunal at Ahmednagar, the appellant/owner has preferred

this appeal by taking aid of Section 173 of the Motor Vehicles act,

1988.

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FACTUAL MATRIX

2.

The accident took place on 01.05.2001 about 2.30 p.m. in

the land of one Mr. Sahebrao Gaikwad near his well where the

work of excavation was going on. The appellant is the owner of

the tractor bearing no. MH-16/F-3524 and trailer no. MH-16/H-

3297. The said tractor and trolley were engaged by Mr. Sahebrao

Gaikwad to transport the excavated material from the well.

Respondent no.1/original claimant was a labour employed for the

said work.

3.

It was about 2.30 p.m. when original claimant along with

other labours had taken shelter in the shadow of the trailer when it

was in stationary condition near the well. The driver of the said

tractor without taking due care and caution and without looking to

the persons sitting behind the tractor, started the tractor and took

it to reverse side. Resultantly, the right leg of the claimant was

fractured. She had also sustained other injuries. She was taken to

the hospital of Dr. Deshpande where she was operated and treated.

She is yet not fully recovered from the injuries caused in the

accident. She is still suffering from 15% permanent disability. She

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has sought compensation of Rs.1,25,000/- from the appellant /

owner and respondent no.2 / insurance company.

4.

The appellant / owner of the vehicle and respondent no.2 /

insurance company as well appeared before the Motor Accident

Claims Tribunal, Ahmednagar and contested the claim by filing

their respective written statements.

5.

The claim went on trial. The parties produced their

evidence in support of their pleadings.

6.

The learned Member, Motor Accident Claims Tribunal,

Ahmednagar after considering the rival pleadings of the parties

and appreciating the evidence on record was pleased to hold that

the appellant / owner of the vehicle has committed the breach of

the policy conditions. The appellant / owner alone is liable to pay

compensation assessed at Rs.70,100/- (inclusive of NFL amount of

Rs.25,000/-) to the claimant with interest thereon at the rate of

9% p.a. The Tribunal has exonerated respondent no.2 / insurance

company from the liability in view of breach of terms and

conditions of the insurance policy.

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7.

Being dissatisfied with the judgment and award passed by

the Motor Accident Claims Tribunal at Ahmednagar, the appellant

owner has preferred this appeal mainly on the following grounds:

(i) The Member, M.A.C.T. has committed an error in

arriving at conclusion that the appellant / owner of

the vehicle has committed breach of the terms and

conditions of the insurance policy and alone liable to

pay compensation.

(ii)The Tribunal has not considered the evidence on

record in a proper perspective. Even though the

original claimant was also equally liable and

contributed the negligence for the accident, not held

that it is a case of contributory negligence.

(iii)At the most, the Tribunal would have held own