fa 810.19 judg.odt

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH, NAGPUR.

FIRST APPEAL NO.810/2019

In

M.A.C.P. No.9/2013

Bajaj Allianz General Insurance Co. Ltd.,

Regional Office at 7th Floor, Shriram Shyam Towers,

C\ Block no.63, -Wing, Kingsway, Sadar, Nagpur

Having its branch office at 2nd Floor,

Shraddha Heights, Old Income Tax Chowk,

Gorakshan, Akola

through its Manager (Legal) Shreshtha Biswas. ...APPELLANT

VERSUS

1. Fatemabi w/o Sk. Salim

Aged about 55 years, Occ- household.

2. Sk. Salim s/o Sk. Abdulla

Aged about 57 years, Occ.- Labour,

Both residents of Jama Masjid Chowk,

Barshitakli, District Akola.

3. Abdul Nasir s/o Abdul Gaffar

Aged adult, Occ.-Driver,

R/o-Mujawarpura, Barshitakli,

Taq. Barshitakli, District Akola.

4. Maksudkhan s/o Rasulkhan

Aged adult, Occ- Owner,

R/o.-Gulzarpura, Barshitakli,

Taq. Barshitakli, District Akola. ...RESPONDENTS

______________________________________________________________

Mrs. A.S. Athalye, Advocate for appellant.

Shri S.D. Chopde, Advocate for resp. nos. 1 and 2.

Shri R.L. Khapre, Senior Advocate assisted by Shri D.R. Khapre,

Advocate as Amicus Curiae.

______________________________________________________________

(Ori.NA

no.2)

(Ori.NA

on.3)

On RA

(Ori.

claimant

no.1 & 2.)

On R.A.

(Ori. NA

1)

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CORAM : PUSHPA V. GANEDIWALA, J.

Reserved on : 20-08-2021.

Pronounced on : 27-09-2021

JUDGMENT :

This First Appeal is preferred by the insurer of the

offending vehicle TATA 709, a goods carriage vehicle, in which the

deceased was travelling, raising a grievance that the learned Member of

the Motor Accident Claims Tribunal, Akola, has erroneously saddled

the liability on the insurance company to pay the amount of

compensation to the claimants i.e. the legal representatives of the

deceased, the deceased being travelling in a goods carriage vehicle

against the terms and conditions of the policy.

2.

The factual matrix, leading to filing of the present Appeal,

may be stated as under :-

The claimants/respondent nos. 1 to 3 herein filed a Claim

Petition under Section 166 of the Motor Vehicles Act, 1988 (for short,

'

M.V. Act'

) for grant of compensation of Rs. 5 lakh against the driver,

owner and the insurer of the offending vehicle. The claimants state

that on 11-02-2012 at about 22.00 hours, when the deceased Sk. Amin

Sk. Salim along with his brother and driver of TATA 709 bearing

registration no. MH-20/W-6567 was coming from Umarkhed to

Barshitakli, when their vehicle reached near Dudkhed Phata on Washim

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to Shelu Bazar road, suddenly back tyre of TATA 709 was burst.

Consequently, the vehicle turned turtle and due to that the deceased

sustained injury and died in Ozone Hospital, Akola, during his

treatment on 12-02-2012.

3.

The claimants are the parents of the deceased. They state

that at the time of accident, the deceased was well bodied person of 20

years old and working as a Coolie with the owner of the offending

vehicle Maksudkhan s/o Rasulkhan, respondent No. 4 herein.

4.

The respondent no.4, the owner of the offending vehicle,

in his written statement, resisted the Claim Petition, however, admitted

that the deceased was working with him and earning Rs. 5000/- per

month. He further admitted his ownership of the offending vehicle

which was insured with the appellant-Bajaj Allianz General Insurance

Company Limited vide Policy No.OG-12-2009-1803-00000116 valid

from 07-06-2011 to 06-06-2012. It is specifically stated that at the

relevant time the driver of the offending vehicle was holding a valid

and effective driving license.

5.

The appellant, the insurance company, in its written

statement did not dispute the existence of valid and effective insurance

policy of the offending vehicle at the relevant time. However, the

appellant resisted the Claim Petition being false and not maintainable

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ei