High Court
Facts
FA-2384-2018-final.odtIN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADFIRST APPEAL NO. 2384 OF 2018Shriram General Insurance Company Ltd.,Through it’s Authorized Signatory,Having office at E/8, EPIP, Risco Industrial Area,Sitapur, Jaipur (Rajasthan) … APPELLANT [Org. Respondent No.2]VERSUS1]Keshav Pandurang Kokate,Age: 53 years, Occu. Nil2]Ambadas Keshav Kokate,Age: 24 years, Occu. Education,3]Nitesh Keshav KokateAge: 21 years, Occu. Education,All R/o. Pimpala, Tq. Ashti,Dist. Beed4]Manik Shivaji BhawarAge: 48 years, Occu. Business,R/o. Gurukrupa Apartment, Ekveera Chowk, Padamanagar, Pipeline Road, Savedi, AhmednagarDist. Ahmednagar...RESPONDENTS [Respondent Nos.1 to 3–Orig. Claimants Respondent No.4 – Orig. Respondent No.1].…Mr. B. V. Virdhe, Advocate h/f Mr. A. P. Basarkar, Advocate forappellant Mr. Manoj Shinde, Advocate h/f Ms Savita A. Kathane, Advocatefor respondent Nos. 1 to 3 .… 1 of 13 (( 2 ))FA-2384-2018-finalCORAM: Y. G. KHOBRAGADE, J.DATE: 30th APRIL 2024O R D E R :- 1. By the present appeal under Section 173 of the MotorVehicles Act, the appellant/Insurance Company challenging thejudgment and award dated 31.08.2017 passed by the learnedMember, Motor Accident Claims Tribunal, Ahmednagar in M. A .C .P.No. 425 of 2015, whereby the claim of the presentrespondents/original claimant Nos. 1 to 3 came to be allowed and thepresent appellant and respondent No. 4 jointly and severally directedto pay compensation to the tune of Rs. 7,55,000/- with interest at therate of 8% p. a. from the date of filing of claim petition i.e.19.09.2015 till its realisation.2. The present appellant is the original Respondent No.2and present respondent Nos. 1 to 3 are the original claimant Nos. 1to 3 in claim petition bearing M. A. C. P. No. 425 of 2015. For thesake of brevity, I would like to refer the parties to the present appealin their original nomenclature as claimants and the respondents. 2 of 13 (( 3 ))FA-2384-2018-final3.The claimants have filed M. A. C. P. No. 425 of 2015alleging that, on 16.10.2013, Sou. Alka Keshav Kokate, wife ofclaimant No.1 and mother of claimant Nos. 2 and 3 were travellingfrom Pimpala to Chichondi Patil on motorcycle bearing registrationNo. MH-16-BB-8982 as pillion rider. Said motorcycle was driven byNavnath Namdeo Aanfat and owned by present respondent No. 4.According to the claimants, at about 12.00 noon, said motorcyclereached near Bhatodi diversion, near village Chichondi Patil atJamkhed – Nagar road and at that time, said Navnath was riding themotorcycle in excessive speed, rashly and negligently and was tryingto overtake another motorcycle, due to which he lost control over themotorcycle thereby caused jerk and Sou Alka fall down and sustainedgrievous injuries to her head. Thereafter, she was taken to CivilHospital at Ahmednagar, but she succumbed due to injuries on19.10.2013 in the Hospital. According to the claimants, on16.10.2013, accident took place due to rash and negligent riding ofmotorcycle by one Navnath. The said motorcycle is insured withrespondent No.2/Insurance Company. Hence, prayed forcompensation to the tune of Rs. 11,01,666/-, but restricted the claimto the tune of Rs.5,00,000/-. 3 of 13 (( 4 ))FA-2384-2018-final4.In-spite of service of notice to respondent No.1 owner ofthe vehicle, he failed to appear in the matter. The opponent No.2/Insurance Company filed its written statement at Exh.15 and resistedthe claim of original claimants. Opponent No. 2 denied occurrence ofaccident due to fault of driver. It further denied about involvement ofvehicle bearing No. MH-16-BB-8982. The opponent No. 2 /InsuranceCompany further pleaded that due to non joinder of rider ofmotorcycle, application for compensation under Section 166 of theMotor Vehicle Act is not maintainable. Further, the rider of themotorcycle was not holding valid driving license. Hence, prayed fordismissal of the claim of the petition.5.On the basis of rival pleading of both the sides, thelearned Member, M. A. C. T. framed Issues at Exh.16. The claimantPW-1 Keshav Kokate filed his evidence affidavit at Exh.17 and provedvarious documents. Opponent No.2/Insurance Company did notexamine any witness.6.On 31.08.2017, the learned Member, M. A. C. T.Ahmednagar passed the impugned judgment and award holding thatthe claimants have proved the contnents of F.I.R. Exh.21, which 4 of 13
Legal Reasoning
(( 6 ))FA-2384-2018-final9.Needless to say that the rider of the offending vehicle isproper party in the proceeding under Section 166 of the MotorVehicles Act, but the driver is not the necessary party as contemplatedunder Order 1 Rule 10 of the Code of Civil Procedure.10.In the case of Machindranath Kernath Kasar Vs. D. S.Mylarappa and others, - (2008) 13 SCC 198, it was held that thedriver of offending vehicle is not a necessary party. The Hon’bleSupreme Court in Para No. 26 has observed as under:-“26. The learned Judges in Patel Roadways opined that whenthe form of the claim petition does not require a claimant toeven name the driver, a claim petition would be maintainableeven without impleading the driver. The Bench proceeded toconsider the general law of tort and the liability of joint tortfeasers as contained in various text books. The Bench alsonoticed the decision of this Court in Minu B. Mehta andAnother Vs. Balkrishna Ramchandra Nayan and Another [SCCpp. 451 & 453 – 54, paras 22 & 27; AIR 1977 SC 1248],wherein it was held: "22.The liability of the owner of the car to compensatethe victim in a car accident due to the negligent drivingof his servant is based on the Law of Torts. Regarding thenegligence of the servant the owner is made liable on thebasis of vicarious liability. Before the master could bemade liable it is necessary to prove that the servant wasacting during the course of his employment and that hewas negligent. 6 of 13 (( 7 ))FA-2384-2018-final27.This plea ignores the basic requirements of theowner's liability and the claimants right to receivecompensation. The owners' liability arises out of hisfailure to discharge a duty cast on him by law. The rightto receive compensation can only be against a personwho is bound to compensate due to the failure to performa legal obligation. If a person is not liable legally he isunder no duty to compensate anyone else. The ClaimsTribunal is a Tribunal constituted by the StateGovernment for expeditious disposal of the motor claims.The general law applicable is only common law and theLaw of Torts. If under the law a person becomes legallyliable then the person suffering the injuries is entitled tobe compensated and the Tribunal is authorised todetermine the amount of compensation which appears tobe just. The plea that Claims Tribunal is entitled to awardcompensation which appears to be just when it issatisfied on proof of injury to a third party arising out ofthe use of a vehicle on a public place without proof ofnegligence if accepted would lead to strange results."The Kerala, Bombay, Madras, Allahabad, Patna, Punjab andHaryana and Delhi High Courts, on the one hand, noticing alarge number of decisions held that drivers are not necessaryparties, the Madhya Pradesh High Court, on the other hand, inNew India Assurance Co. Vs Munni Devi [1993 ACJ 1066(M.P.)] and Madhya Pradesh State Road Transport CorporationVs. Vaijnati [(1995 ACJ 560 (M.P.)] held that the driver of theoffending vehicle would be a necessary party. The DivisionBench of the Karnataka High Court further held that under theMadhya Pradesh Motor Vehicle Rules, the driver was requiredto be impleaded as a party. It was, however, stated: " We do not however agree with the said two decisions,if they were to be read as laying down a general principlethat under Law of Torts, the master cannot be sued to 7 of 13 (( 8 ))FA-2384-2018-finalenforce his vicarious liability for the negligence of theservant, without impleading the servant." On the aforementioned finding, the following law was laiddown. "(a) Neither the Motor Vehicles Act nor Rules thereunderrequire the driver to be impleaded as a party to the claimpetition, (b) Under Law of Torts, the owner and driver ofthe Motor Vehicle being joint tortfeasors, who are jointlyand severally liable for the negligence of the driver, theclaimant can sue either the owner or the driver or both.But, whether driver is impleaded or not, a owner(master) can be made vicariously liable for the acts of hisdriver (servant), only by proving negligence on the partof the driver (servant), (c) Therefore a claim petition canbe maintained against the owner and insurer of thevehicle causing the accident, without impleading thedriver. However proving the negligence of the driver is acondition precedent to make the owner vicariously liablefor the act of the driver, (d) But where the driver is notimpleaded as a party, no decree or award can be madeagainst him. A driver can be held liable personally onlywhen he is impleaded as a party and notice of theproceedings is issued to him." 11.In the case in hand the claimants not joined NavnathAanfat, the Motorcycle rider as Respondent. The claimants have notclaimed any relief against the rider. Therefore, considering the scopeof Order 1 Rule 10 of C. P. C. and case of Machindranath KernathKasar, cited above, I do not find any substance in submission onbehalf of the appellant. 8 of 13 (( 9 ))FA-2384-2018-final12.The learned Counsel appearing for theappellant/Insurance Company further canvassed that the claimantsthat FIR Exh.21, the spot panchanama Exh.22 and inquestpanchanama Exh.23, however, these documents do not discloseinvolvement of motorcycle No. MH-16/BB-8982, but the claimants incollusion with respondent No. 1 prepared false and bogus documentsabout occurrence of accident due to skidding of motorcycle MH-16-BB-8982. However, the learned Member, M. A. C. T., failed toconsider documentary evidence and illegally granted compensation.Hence, prayed for quashing and setting aside the same.13.To buttress his submissions, the learned Counselappearing for the appellant relied on the case of M/s. ShriramGeneral Insurance Company Limited Vs. Tilottam Sandip Sonawaneand others – AIR Online 2022 Bom 786 it was observed in Para Nos.15 and 16 as under :-“15.The Tribunal, in the present case, has simply relied on thefactum of filing of charge sheet against the tractor driver.Admittedly, the report of the accident was lodged againstunknown vehicle. It is only after three weeks a person comesforward claiming to have had witnessed the accident. Herecalled of the accident only on having seen the hoardingdepicting the picture of the deceased – Sandip. According to 9 of 13 (( 10 ))FA-2384-2018-finalthe alleged eye witness, some person had gathered on the spotof accident. Had it really been so, involvement of the offendingtractor could have come to light immediately, i.e., on the sameday of the accident. Same suggests that no person hadwitnessed the accident. The conduct of the alleged eye witnessAtul Gade in coming forward after three weeks of the accident,is unnatural and does not stand to reason. He was residing at anearby village. On having seen such an accident,he left theplace without intimating the same to anyone else. Realising tohave had witnessed the accident only on having seen thehoarding and picture of the deceased, leads this Court toobserve that this person is a got up witness only with a view toearn the compensation. This Court is, therefore, not inclined torely on the evidence of this witness.16.There is no other evidence in proof of involvement of thetractor in question. The Tribunal ought not to have allowed theclaim petition merely relying on such police papers namely,charge-sheet, seen of accident panchanama and post mortemnotes. This Court has, therefore, every reason to interfere withthe impugned judgment and award. In view of this Court, theevidence fell short to make out case even on preponderance ofprobabilities.”14.In case of M/s Shriram Insurance Company Ltd., Vs.Vanita and Ors, First Appeal No.606 of 2019 Co ordinate Bench ofthis Court has held as under:-“If persons who had the knowledge about the accident, with thenumber of the offending vehicle do not come forward to lodgethe report, then this point is required to be considered, whendefence of 'collusion between the driver and/ Owner of theoffending vehicle' raised by the insurance company is taken. No 10 of 13 (( 11 ))FA-2384-2018-finaldoubt, the tendency of general public who witnesses theaccident is, not to approach police voluntarily. But in this case,those persons/ eye witnesses have helped police in preparationof panchnama; yet did not have a word or disclosure of numberof vehicle who was negligent has created doubt. Therefore,taking into consideration all these aspects, merely because anoffence was registered against the driver of the vehicle ownedby respondent No.1 will not prove the involvement of thatvehicle in the accident. Conclusion has to be drawn under thesaid facts that the claimants have failed to prove involvement ofTata Magic bearing No.MH 13/B2719 in the said accident.”15.In the case in hand, the evidence of claimant No.1 KeshavKokate proves that on 16.10.2013, the deceased Alka being pillionrider was proceeding on motorcycle No. MH-16-BB-8982, fromPimpala to Chichondi Patil via Jamkhed – Nagar road, at that time,one Navnath Namdev Aanfat was riding motorcycle and at about12.00 noon, said motorcycle reached near Bhatodi diversion in thevicinity of village Chichondi Patil and at that time, the motorcyclerider was riding motorcycle in very high speed in rash and negligentlyand trying to overtake another motorcycle, which was proceedingahead to his motorcycle and while overtaking the motorcycle riderlost his control and due to heavy jerk, Sou Alka, the wife of claimantNo.1 and mother of claimant Nos. 2 and 3 fell down and sustainedgrievous injuries. Therefore, injured Alka was immediately taken to 11 of 13 (( 12 ))FA-2384-2018-finalCivil Hospital, Ahmednagar, where she succumbed due to accidentalinjuries on 19.10.2013. The FIR Exh.21, spot panchanama Exh.22,inquest panchanama and postmortem report corroborate death due tohead injuries caused in said accident. 16.Since, the deceased was household wife, therefore, hermonthly income of Rs. 5,000/- p. m. was considered and awardedcompensation to the tune of Rs. 7,55,000/- under various heads,which does not appear to be illegal. The appellant/InsuranceCompany has not denied that the motorcycle MH-16-BB-8982 wasinsured and the said accident occurred during subsisting period ofinsurance. Therefore, the present appellant/Insurance Company andthe owner i.e. respondent No.4 are liable to pay compensation jointlyand severally. Considering all these aspects, I do not find anysubstantial ground to interfere with the findings recorded by thelearned Member. Accordingly I proceed to pass the following order:::ORDER::(i)Present appeal is dismissed.(ii)Decree be drawn accordingly.(iii)Record and proceedings be remitted back. 12 of 13
Arguments
(( 5 ))FA-2384-2018-finalclearly mentions that Navnath Aanfat was riding motorcycle and Sou.Alka was pillion and when the said motorcycle was passing on Nagarroad towards Chichondi Patil village, at that time, he tried to overtakeanother motorcycle running ahead to him. The Motorcyclist lostcontrol over the motorcycle, due to which, motorcycle skidded whichresulted into causing accident and falling down of Sou. Alka on theroad which resulted serious head injuries and succumbed whilehospitalization. Therefore, considering notional income of house-wife, to the tune of Rs.5,000/- per month, the total compensation ofRs.7,55,000/- granted.7.The learned Counsel appearing for the appellantvehemently canvassed that the claimants have not joined the rider ofmotorcycle as party, therefore, the claim petition is not maintainable.8.Per contra, the learned Counsel appearing forrespondent/original claimants Nos. 1 to 3 submits that the motorcyclerider is not necessary party, but he may be proper party merely,motorcycle rider is not joind as respondent. The claim of therespondents/original claimants Nos. 1 to 3 does not become bad. 5 of 13
Decision
(( 13 ))FA-2384-2018-final(iv)Since, the appeal is dismissed, therefore, the amountdeposited by the Insurance Company in this Court be disbursed infavour of the claimants with interest accrued thereon.(v)In view of above, Civil Application No.4619 of 2019 shallalso stands disposed of. [ Y. G. KHOBRAGADE, J. ]SMS 13 of 13