High Court
Legal Reasoning
1 948IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD FIRST APPEAL NO. 940 OF 2014.The National Insurance Company Ltd.a Subsidiary of the General InsuranceCorporation of India and a companyIncorporated under the Companies Acthaving one of its Divisional office atHazari Chambers, Station road, AurangabadThrough its Authorized Signatory .. Appellant (org. Resp. No.4)Versus1.Ashok Dagadu Thorat,Age: 36 Years, Occu.: Labour,R/o.: Vadgaon, Tk.: Sangamner,Dist.: Ahmednagar2.Ahmed Shaikh Shaikh Hussain Baban,Age: Major, Occu.: Business,R/o.: Ward No.2, A.P. Tk. & Dist. Ahmednagar3.Iqbal Ahmed Shaikh,Age: Major, Occu.: Nil,R/o.: Ward No.2, Srirampur,Tk. Srirampur, Dist. Ahmednagar4.Shaikh Hussain Baban Shaikh,Age: Major, Occu.: Nil,R/o.: As above .. Respondents (R. No.1: Org. clmt, R.No.2-4 Org. R.Nos.1,3,4)...Advocate for Appellant : Mr. Kadethankar Ajit B.Advocate for Respondent No.1 : Mr. S. K. Shinde…WITH…
Legal Reasoning
2 948FIRST APPEAL NO. 942 OF 2014.The National Insurance Company Ltd.a Subsidiary of the General InsuranceCorporation of India and a companyIncorporated under the Companies Acthaving one of its Divisional office atHazari Chambers, Station road, AurangabadThrough its Authorized Signatory .. Appellant (org. Resp. No.4)Versus1.Ashok Kushaba Sonawane,Age: 46 Years, Occu.: Labour,R/o.: Vadgaon, Tk.: Sangamner,Dist.: Ahmednagar2.Ahmed Shaikh Shaikh Hussain Baban,Age: Major, Occu.: Business,R/o.: Ward No.2, A.P. Tk. & Dist. Ahmednagar3.Iqbal Ahmed Shaikh,Age: Major, Occu.: Nil,R/o.: Ward No.2, Srirampur,Tk. Srirampur, Dist. Ahmednagar4.Shaikh Hussain Baban Shaikh,Age: Major, Occu.: Nil,R/o.: As above .. Respondents (R. No.1: Org. clmt, R.No.2-4 Org. R.Nos.1,3,4)...Advocate for Appellant : Mr. Kadethankar Ajit B.Advocate for Respondent No.1 : Mr. S. K. Shinde... 3 948WITHCIVIL APPLICATION NO. 8362 OF 2016 IN FA/942/2014...CORAM:ARUN R. PEDNEKER, J.DATE:23rd AUGUST, 2024ORAL JUDGMENT:1.Heard.2.An unfortunate accident had taken place on 25.07.1998 atabout 09:00 p.m. in the shiwar of village Wadgaonpan, in front of HotelYadgar. The motorcycle bearing no.MJK-5130 met with an accident with aJeep bearing no.MXI-2080. The claimant in First Appeal No.942 of 2014is one Mr. Ashok Sonawane, who was the pillion rider of the motorcycleat the relevant time. It is contended that the Jeep was coming in high andexcessive speed and the driver of the said vehicle could not control thespeed of the vehicle and gave dash to the motorcycle in which the driverand the pillion rider sustained injuries.3.The motorcycle rider Mr. Ashok Thorat filed the claim forRs.1,50,000/- towards the injuries suffered by him, loss of income andtowards the medical expenses. The tribunal considering the evidence onrecord has granted compensation of Rs.68,000/- to the claimant, which ischallenged in the present First Appeal No.940 of 2014. 4 9484.It is the contention of the learned counsel for the insurancecompany that in the appeals filed by the insurance company that it wasthe motor cycle rider, who was negligent. As such, the claim amount forliability ought to have been on the motorcycle rider and, in any event, thefinal amount granted should have been apportioned between theinsurance company and the motor cycle rider depending upon thecontributory negligence.5.The insurance company points out cross-examination of therider of the motorcycle and submits that there are admissions made,which go to the root of the matter. However, the tribunal in para 10 ofthe judgment mentioned about the cross examination of the rider of themotorcycle. The relevant portion reads as under:“During the course of his cross-examination on behalf ofRespondent No.2, it appears that some typing mistakes havetaken place while recording his cross-examination. It appearsthat in his cross-examination suggestions were put to himthat he has not sustained injuries to his head and right hand,that he has not sustained permanent disability to the extentof 10%, that he has not incurred expenditure of Rs.50,000/towards medical treatment. However while recording thatdeposition, by mistake those suggestions are typed in thepositive form. Thus what appears is that the Petitioner hasadmitted in his cross-examination that he has not sustainedinjuries on his head and right hand in the accident, that hehas not sustained permanent disability of 10% and that hehas not spent amount Rs.50,000/ towards his medicaltreatment. It also appears that it is mistakenly typed that the 5 948accident had taken place due to his own negligence. In fact itwas necessary to type that said accident has taken place notbecause of his own negligence. The significant fact is thatduring the course of Examination-in-Chief, the Petitioner hasspecifically stated that said accident has taken place due torash and negligent driving of offending vehicle by its Jeepdriver and that he sustained injuries on his head and rightshoulder. It is also stated by him that he was admitted inNagajee Memorial Hospital, Nashik and Dr.Koshy gavemedical treatment to him. In the light of these positiveassertions made by the Petitioner in his examination-in-chief,it is not possible that he must have admitted all the factsduring the course of his cross-examination. Therefore in myopinion it is because of typing mistakes his cross-examination is recorded in that fashion.”The tribunal has observed that it is the typing error, as such,there is no admission before the tribunal by the rider. The tribunal hassquarely held that the rider of the motorcycle is not responsible for theaccident. The documentary evidence in the form of the First InformationReport at Exhibit 64 and the Spot Panchanama at Exhibit 66, wherein itis noticed that the claimant was riding the motorcycle on Sangamner toLoni road and the accident took place near the Yadgar Hotel and themotorcycle was found on the kaccha road and the said road was the tarroad which shows that the jeep coming from the opposite direction musthave gone to the wrong side and must had given dash to the motorcycle.On the basis of Spot Panchanama, the finding is rendered that it was thisdriver of the Jeep who was negligent. 6 9486.No material is is pointed out to me to deviate from thefindings of the tribunal. In view of the same, I see no reason to interferein the impugned order.7.As regards the case of the pillion rider is concerned, the samewould be also covered within the facts in the First Appeal No.940 of2014, so also, even if it is held that motorcycle rider is responsible theappeal still would be covered within the composite negligence.8.The learned counsel appearing for the insurance companysubmits that the matter before the tribunal was pending for about 10years for non service of the owner and the insurance company cannot besaddled with interest for such delay. 9.The learned counsel submits that the owner was served inthe year 2010, as such, the interest awarded by the tribunal from the dateof institution of the proceedings till 01.01.2010 the interest grantedwould be at the rate of 6% and thereafter the interest would be at therate of 8% as granted by the tribunal.10.The amount deposited in this court should be forthwithtransferred to the Motor Accident Claims Tribunal, Sangamner in MACPNos.548 of 2002 and M.A.C.P. No.533 of 2002. 7 94811.If any excess deposited amount remains, the same would berefunded to the insurance company. However, on computation, if it isfound that the deposited amount is deficit, then the insurance companyto deposit the deficit amount within a period of eight (08) weeks beforethe tribunal from the date of uploading of this order.12.Both the first appeals stand disposed of.13.All pending civil applications are also disposed of. [ARUN R. PEDNEKER, J.]marathe3432