NEW INDIA ASSURANCE COMPANY LTD AURANGABAD THROUGH ITS DIVISIONAL MANAGER Vs. CHHAGAN S/O KERU NARWADE
HIGH COURT OF BOMBAY
New India Assurance Company Ltd Aurangabad Through Its Divisional Manager
Chhagan S/O Keru Narwade
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K.K. Sonawane, J. -
(1.) This first appeal is filed under section 173 of the Motor Vehicles Act, 1988 ( for short "Act of 1988") against impugned judgment and award dated 23-12-2010 passed by the Member, Motor Accident Claims Tribunal, Ahmednagar (for short "Tribunal"), imposing monetary liability jointly and severally, in the proceedings of Motor Accident Claim Petition No. 435 of 2006. The appellant - original respondent -Insurance Company preferred the present appeal to redress its grievance.
(2.) The genesis of the appeal in nutshell is that ill fated deceased Shital - 07 years old girl, was the daughter of respondents No.1 and 2- herein i.e. original claimants. On the fateful day of accident, i.e. on 15-08-2006, deceased Shital had been to the school for attending the function of celebration of independence day. After flag hoisting function, she started returning to home from the school. When she was crossing the Nagar - Kalyan road, the vehicle truck bearing No. MH-04- AL-5199 came speedily from the side of Balvani village and gave dash to minor deceased Shital. The vehicle was driven in a very rash and negligent manner by the driver without paying attention to the pedestrian and traffic condition on the road. The deceased Shital received fatal injuries in the accident. She was escorted to the Government Hospital for medical treatment. But, the concerned Medical Officer of the Civil Hospital declared her dead. The first information report about the mishap came to be filed in the MIDC Police Station, Ahmednagar. The police registered the crime No. I-114 of 2006 under section 304(A), 279 of the Indian Penal Code (for short "IPC") and set the penal law in motion against driver of the offending vehicle. The police personnel visited to the spot of incident and drawn spot panchnama. Investigating Officer also prepared inquest panchnama on the dead body and referred it to autopsy. The medical expert conducted post-mortem and opined that the deceased Shital died due to hemorrhage shock following polytrauma. The parents of the deceased Shital cast the allegations that driver of the offending vehicle driven the vehicle truck in a very negligent and rash manner.
He did not take care of the traffic condition as well as students of the school, crossing the road. The parents blamed the driver of the truck for the accidental death of their daughter - Shital. Therefore, parents preferred the application under section 166 read with section 140 of the Act of 1988 for compensation to the tune of Rs. 3,00,000/- + 50,000/- for the loss caused to them following death of their beloved daughter.
(3.) The notices of the claim petition were issued to both the respondents - owner and Insurance Company. Despite service of notice, respondent No. 1-owner remained absent nor filed any written statement on record. The circumstances constrained the Tribunal to proceed ex-parte against him. However, in response to notice, the appellant - Insurer i.e New India Assurance Company Ltd., caused its appearance and vociferously opposed the allegations for monetary liability following accidental death of deceased Shital. AppellantInsurance Company filed written statement (Exhibit-11) on record.
Appellant - Insurance Company denied about the manner in which the alleged accident occurred, as propounded on behalf of claimant. Respondent - Insurance Company categorically alleged that driver of the offending vehicle was not in possession of effective and valid driving licence at the relevant time to drive the vehicle truck involved in the accident. There was breach of terms and conditions of the insurance policy, therefore, appellant - Insurance company is not liable to indemnify to the insured. The driver was also not made party in the proceedings, therefore, appellant - Insurance Company prayed to absolve it from monitory liability.;
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