THE UNITED INDIA INSURANCE Vs. BASHIRKHAN GAFARKHAN
HIGH COURT OF BOMBAY (AT: AURANGABAD)
The United India Insurance
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V.K.JADHAV, J. -
(1.) Being aggrieved by the judgment and Award passed by the Member, Motor Accident Claims Tribunal, jalgaon dated 18.2.1994 in MACP No.138/1987, the original respondent no.6 insurer has
preferred this appeal.
(2.) Brief facts, giving rise to the present appeal are as follows :-
a] The respondent-original claimant Bashirkhan was serving as a driver with respondent Sk. Isa and on 21.2.1987 he was carrying oil cakes in the truck bearing registration No.MHV-9594 from Khamgaon to Nandurbar. On way, within the limits of village Parola at about 6.00 am one truck bearing registration No.MWD- 2410 coming from the opposite direction in high speed gave dash to the truck of the claimant Bashirkhan by coming to the wrong side of the road. In consequence of which, claimant Bashirkhan had sustained injuries to his left hand, right leg, fracture on his left hand wrist and right leg. He was required to take treatment for 3-4 months in the hospital. He had sustained fractured injuries on his left wrist, which resulted into permanent disablement. He was not in a position to use his hand below wrist. He had to give up his service as driver. He was getting Rs.1,500/- p.m. from respondent Shaikh isa. Thus, the claimant Bashirkhan had approached the Tribunal for grant of compensation under various heads.
b] The driver cum owner of the truck bearing registration No.MWD-2410 also died in the said accident. His legal representatives are brought on record.
c] Respondent No.5-Insurer of truck No.MHV-9594 filed written statement and strongly resisted the claim petition with the contention that the accident had taken place mainly on account of the rash and negligent driving of the driver of the truck bearing registration no.MWD-2410.
d] The appellant-insurer of the truck MWD-2410 strongly resisted the claim petition by filing his written statement. It has been contended that there was no negligence on the part of the driver of the truck MWD 2410 and that the accident had taken place on account of rash and negligent driving by claimant Bashir Khan himself.
e] The claimant Bashir Khan adduced oral and documentary evidence in support of his contentions, however, respondents including appellant-insurer have not adduced any evidence. The learned Member of the Tribunal had partly allowed the claim petition and directed the owner of vehicle bearing registration no.MWD-2410 and its insurer i.e. the appellant to pay compensation of Rs.92,500/- alongwith interest with proportionate costs. Hence, this appeal.
(3.) The learned counsel for the appellant insurer submits that, this is a case of head on collision between the said two trucks and claimant Bashirkhan was driving the truck bearing registration
No.MHV-9594 involved in the accident. Learned counsel submits that, this is a case of composite
negligence, however, tribunal has fastened the liability on owner of truck bearing registration
No.MWD-2410 and its insurer i.e. the appellant.;
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