M/S NATIONAL INSURANCE CO LTD Vs. RUKMINBAI VASANT PANCHAL AND ORS
LAWS(BOM)-2017-6-13
HIGH COURT OF BOMBAY (AT: AURANGABAD)
Decided on June 08,2017

M/S National Insurance Co Ltd Appellant
VERSUS
Rukminbai Vasant Panchal And Ors Respondents

JUDGEMENT

- (1.) Being aggrieved by the common judgment and award 23.3.2007 passed in M.A.C.P. No. 96 of 1998 and other connected claim petitions and common judgment and award dated 09.04.2007 passed in M.A.C.P. No. 233 of 1998 and other connected claim petitions by the Member, Motor Accident Claims Tribunal, Nanded, the original respondent-insurer has preferred this appeals and civil revision application.
(2.) Brief facts, giving rise the present appeals and civil revision application are as follows:- a) On 27.11.1997, deceased persons and the injured persons went to Nanded for attending Swadhaya programme of Pandurangshastri Athwale Maharaj and after attending the said programme, they started returning to their village alongwith goods like rice bags, bamboo, drums etc. in a tempo bearing registration No. MH-26-7967 by Nanded Loha road. On way, within the limits of village Pardi, one truck bearing registration No. MWP 6729 came from opposite side in high speed and gave dash to the said tempo. In consequence of which, the said tempo turned turtle and 13 passengers, out of the persons travelling in the said tempo, died on the spot and 36 persons were seriously injured. On the basis of the complaint lodged at police station, Loha, crime No. 142 of 1997 came to be registered against the drivers of both the vehicles. Thus, the legal representatives of deceased persons as well as the injured persons themselves filed separate claim petitions before the M.A.C.T. Nanded for grant of compensation under various heads against the owners of both the vehicles and its insurer. Respondent No.1 is the owner of truck and the respondent No.2 is the owner of tempo and both the vehicles are insured with the appellant-original respondent No.3-National Insurance Company Ltd. b) It has been contended by the claimants in respective claim petitions that the accident had taken place due to the negligence on the part of both the drivers and as such, the respondents are jointly and severally liable to pay the compensation as claimed by them under various heads. c) Respondent No.1 owner of the truck remained absent though duly served and therefore, hearing of the claim petitions ordered to be proceeded exparte against him. d) Respondent No.2/owner of the said tempo has strongly resisted all claim petitions by filing written statement and denied the rash and negligent driving on the part of driver of the tempo. It has been contended that the driver of the tempo was returning alongwith the goods in the tempo, however, the deceased and others persons stopped his tempo and compelled the driver to allow them to travel in the tempo. The driver of the tempo was cautiously driving his tempo. However, the said truck came from opposite side in high speed, gave dash to the tempo and in consequence of which some of the persons travelling in the tempo died on the spot and other persons sustained severe injuries. It has also been contended that near about 15 to 20 lacs persons had been there for attending Swadhaya programme of Pandurang Shashri Athwale Maharaj and near about 15000 vehicles were at the place of programme. Since the vehicles were not catering the need of persons assembled there, the police officers, M.L.As and other persons, who were present there for the programme, allowed the goods vehicles, including the vehicle tempo to carry the passengers. It has been therefore, contended that respondent No.2 is not liable to pay the compensation. e) The appellant-original respondent No.3 also resisted the claim petitions by filing written statement. Though the appellant insurer has admitted the insurance coverage of both the vehicles, it has been contended that the owner of the tempo has contravened the terms and conditions of insurance policy. The passengers were carried on hire basis in the tempo, which is goods vehicle. Moreover, the concerned police station has also registered crime against the drivers of tempo for illegally carrying the passengers in goods vehicle. It has been contended that the tempo was carrying more than 40 to 50 passengers on hire, unauthorizedly, at the time of accident. It has also been contended that the owners of both the vehicles are liable to pay the compensation and the appellant insurer is not liable to pay the compensation. f) The claimants in the claim petitions led common evidence in M.A.C.P. No. 76 of 1998 (Vasantrao Pawar and others vs. Ramprasad Toshniwal) and also produced on record the certified copies of police documents, like F.I.R, spot panchnama, discharge card, injury certificate, disability certificates as per individual case. Copies of insurance cover notes of both the vehicles also came to be produced on record. The appellant-insurer has examined Divisional Manager to prove the breach of policy condition and examined the police inspector of concerned police station and company's investigator. g) The learned Member of Tribunal in all claim petitions by its two separate common judgment and award, as aforesaid, held that the drivers of both the vehicles had contributed the negligence and driver of the truck contributed the negligence to the extent of 60% whereas the driver of tempo contributed the negligence to the extent of 40%. The learned Member of the Tribunal has accordingly awarded the compensation to the claimants, as detailed in the operative part of the impugned judgments and award. Hence, these appeals and civil revision application by the insurer.
(3.) Learned counsel for the appellant insurer submits that admittedly the passengers were being carried in goods vehicle tempo and as such, there is fundamental breach of policy condition. The learned Member of the tribunal has committed error by directing the appellant insurer to pay the compensation amount to the claimants so far as the liability of tempo owner is concerned and recover the same from the respondent-tempo owner. The appellant insurer has not seriously challenged the finding recorded by the Tribunal about negligence on the part of drivers of both the vehicles for the reason that both the vehicles are insured with the appellant insurer. The learned counsel for the appellant submits that the appellant has also not challenged the quantum of compensation as awarded by the Tribunal in each and every case.;


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