High Court · 2025
Legal Reasoning
( 1 ) FA-433-2014IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADFIRST APPEAL NO. 433 OF 2014WITHCIVIL APPLICATION NO.10117 OF 2010WITHCIVIL APPLICATION NO.10118 OF 2010Maheboobkhan s/o. Rashidkhan Pathan (Since deceased) through his L.R.s.1]Fatimabi Meheboobkhan PathanAge: 64 years, Occu: Household.2]Mushtaqkhan Meheboobkhan PathanAge: 41 years, Occu: Business,House No.412, In front of K.E.M. Hospital,Near Anglo Urdu High School,Davi-Galli, Sangamner,Dist. Ahmednagar.3]Nahid Mohmmad Kasim ShaikhAge: 39 years, Occu: Household,R/o. Vasant Tekdi, Aurangabad Road,Ahmednagar.4]Asama Mohammed Ashraf ShaikhAge: 37 years, Occu: Household,R/o. Flat No.503 Gul Hasan Complex,Unique Society, Pipe Road,Kurla (West), Mumbai.5]Muddasar Khan Meheboobkhan PathanAge: 34 years, Occu: Nil.R/o. Flat No.601, Bhimi Mohan Ethape
Legal Reasoning
( 2 ) FA-433-2014Shrishti KachorePatri Bridge,Kalyan (East), Mumbai.6]Fatimkhan Maheboobkhan Pathan,Age: 32 years, Occu: Nil.R/o. Flat No.601, Bhimi Mohan Shrishti KachorePatri Bridge,Kalyan (East), Mumbai. ...APPELLANTSV E R S U S1]Gautam s/o. Bhikan Lokhande,Age: 37 years, Occu: Labour,R/o. Kankadwati Nagar,in Tenabai Chava Room SakharKarkhana Kannad, Tq. Kannad,Dist. Aurangabad. (Orig. Claimant) 2]Jabbar S/o. Chennu PatelAge: Major, Occu: Truck Owner,R/o. At and post tq. Newasa, Dist. Ahmednagar. 3]Respondent No.3 dismissedas per Court’s order dtd.18.01.2013.4]The United India Insurance Company Ltd.First Floor, Hotel Karam,Infront of Bus stand,Sangamner, Tq. Sangamner,Dist. Ahmednagar....RESPONDENTS…..Mr. R. L. Kute, Advocate for the Appellant.Mr. P. F. Patni, Advocate for the Respondent No.1.Mr. Atul B. Gatne, Advocate for Respondent No.4 in CA/10118/2010.Ethape ( 3 ) FA-433-2014CORAM:KISHORE C. SANT, J.RESERVED ON:24th SEPTEMBER 2025.PRONOUNCED ON:15th OCTOBER 2025. ORDER :-CIVIL APPLICATION NO.10118 OF 20101.This application is for allowing the applicant to add InsuranceCompany as Respondent No.4 to the First Appeal.2.Considering the reasons stated in the application, this civilapplication is allowed in terms of prayer clause (A). 3.The applicant to carry out necessary amendment in the appeal aswell as connected civil applications. FIRST APPEAL 1.Heard the learned Advocates for the parties.2.This appeal is filed by original respondent No.3, owner of thevehicle, challenging the Judgment and Order passed by the learnedEthape ( 4 ) FA-433-2014Member of the Motor Accident Claims Tribunal, Aurangabad, dated 06-06-2007, passed in MACP No.620 of 2000, wherein the presentappellant and original opponent No. 2, i.e. driver of the vehicle, aredirected to pay a compensation of Rs. 1,35,000/- inclusive amount of“no fault liability” with interest at the rate of 7.5% per annum from thedate of claim petition. 3.The respondent No. 1 is the claimant who had filed the claimpetition seeking compensation as he received an injury and had suffereda disability. Respondent No.2 is the original respondent No.1.Respondent No. 3 is the driver of the vehicle owned by the presentappellant. In the first appeal, now the Insurance Company is also addedas a party Respondent No.4. The Appeal is dismissed against therespondent No. 3.4.The facts, in short, are that the injured Gautam Lokhande wastravelling in truck bearing No. MH-17-A-5105 on 11-05-1999, carryingsugarcane from village Chapaner to Sangamner for its supply. TheEthape ( 5 ) FA-433-2014driver of another vehicle came in a rash and negligent manner and couldnot control his vehicle. The truck, therefore, turned turtle. As a result,the hands of the claimant got entangled in the steering rod and hebecame unconscious. He was shifted to the hospital. In the accident, hesuffered two fracture injuries to both his hands. A crime was registeredwith the police station against original opponent No.2 i.e. presentrespondent 3. 5.The claimant, therefore, approached the Claims Tribunal by filingMotor Accident Claims Petition. His case is that in the accident, hereceived an injury and suffered 32% permanent disability. The opponentNo.3 was the owner of the vehicle. The vehicle was, thereafter,purchased by original opponent No. 1, and therefore, he has joined themas a party. It is the defence of the respondent No. 3 that he sold thevehicle prior to the date of accident. The opponent No. 2 was not hisemployee. The opponent No. 3 resisted the claim and denied theallegations against him. Ethape ( 6 ) FA-433-20146.On considering the evidence and trial, the learned Tribunal heldthat the original opponent No.1 was not the owner on the date ofaccident, as he purchased the vehicle after date of accident. On the dateof accident, it was opponent No.3 who was the owner and opponent No.2 was driving the vehicle as his driver, and thus fastened the liabilityupon original opponent Nos. 2 and 3. The respondent Nos. 3 has thusfiled appeal before this Court. 7.After filing of the appeal, the appellant found that the vehicle wasinsured with United India Insurance Company Limited and he filed anapplication for joining the said company as a respondent.8.After joining of the Insurance Company as a party, it is also one ofthe grounds taken by the appellant now that since the vehicle wasinsured with opponent Insurance Company, the liability would be of theInsurance Company to pay the compensation.9.Learned advocate Mr. Gatne for the Respondent InsuranceCompany, however, vehemently opposes the claim. His main ground isthat in the MACP, the company was not a party. It was the duty of theEthape ( 7 ) FA-433-2014owner of the vehicle to point it out to the Court that the vehicle wasinsured and Insurance Company was a necessary party. The InsuranceCompany could not get a chance to defend the claim petition and put-forth its case. The Insurance Company, therefore, cannot be fastenedwith the liability. In the alternative, he submits that the InsuranceCompany needs to be given an opportunity to defend the claim andtherefore, this is a fit case to remand the matter for fresh trial. The factsand the findings by the MACP are not seriously in dispute. The questionis mainly as to who should bear the burden of the interest and the claimamount. 10.Learned Advocate Mr. Patni appearing for respondent No.1,original claimant, submits that he is not concerned with the question ofliability as he is the claimant and he should get the amount ofcompensation alongwith interest. Because of the dispute between theInsurance Company and the appellant, it is the claimant who is sufferingand is not getting any amount towards compensation though there isalready a judgment and award in his favour.Ethape ( 8 ) FA-433-201411.It is admitted fact that the Insurance Company was not a partythroughout the trial. The appeal was filed in the year 2010 and it isthereafter application came to be filed by the appellant for adding theInsurance Company as a party. The said application was initially rejectedin 2014 itself. However, thereafter the review application was filed and itis on 09-03-2022, that the review application came to be allowed andthe Insurance Company came to be added as a party. It is clearly seenthat though the vehicle was insured, the Insurance Company was notadded as a party. This is clearly due to the negligence of the appellant.It is the justification of the appellant that a loan was taken for purchaseof the vehicle, the loan was advanced by the bank, and it is the bank,who paid the premium of the insurance and got the vehicle insured. Thisfact was not within the knowledge of the appellant. During theexecution proceedings, when the appellant took search of the loan file,he found that the vehicle was insured and it is thereafter, he filed anapplication for adding Insurance Company as a party. The InsuranceCompany though was a necessary party, for want of knowledge, it couldEthape ( 9 ) FA-433-2014not be pointed out in the trial Court.12.On the contrary, it is the defence of the Insurance Company, asalready stated, that even if the liability is fastened upon the InsuranceCompany, Insurance Company would not be liable to pay interest for theperiod for which it was not a party. 13.Once the vehicle was insured, it was necessary for the InsuranceCompany to accept the liability. There is no dispute that the vehicle wasinsured on the date of accident. It was equally necessary for theappellant to be vigilant and to bring this fact to the notice of the Courtthat the vehicle was insured on the date of accident so that theInsurance Company could have contested the claim by participating inthe proceedings. It is thus clear that it is the negligence on the part ofthe owner in not bringing the Insurance Company on record.14.At the same time, claimant cannot be faulted with for not makingInsurance Company as a party. It is not the case that the claimant wasmade aware of the fact of insurance of the vehicle. The claimant,therefore, cannot be deprived of the compensation. Ethape ( 10 ) FA-433-201415.On going through the judgment and the evidence, it is clearlyestablished that the accident took place because original opponent No. 2was negligent in driving the vehicle. The learned Tribunal has rightlyexonerated original opponent No.1 as he was not the owner of thevehicle on the date of accident. It is the opponent No.3 who was theowner of the vehicle. This Court thus finds that there is no illegality orperversity in the judgment passed by the learned Member of theTribunal. Here the question is only about the liability of payment ofcompensation and the amount of interest. The Court has awarded theinterest at the rate of 7.5 % per annum. 16.This Court finds that till the date of joining of the InsuranceCompany, the Insurance Company was also not aware of theproceedings. Thus, it was deprived of the opportunity to defend theproceedings. No doubt about this fact. In normal course, this Courtwould have remanded the claim for fresh trial to the trial Court. ThisCourt, however, finds that the accident has taken place long back. Itwould not be in the interest of justice now to remit the matter back forEthape ( 11 ) FA-433-2014fresh trial as it would unnecessarily deprive the claimant, who hasalready succeeded in the trial, of compensation for a further period. 17.Considering all these facts, I pass the following order: ORDER(i)First Appeal stands rejected.(ii)The opponent No.4, Insurance Company shall paythe compensation to the claimant.(iii)The 50 % of the liability of the interest amount is tobe borne by the appellant himself and 50 % by theInsurance Company. The compensation amount and theinterest part of each of the parties be deposited in theoffice of this Court within eight weeks from today.Amount to carry interest @ 6% p.a. (iv)In case there is default on the part of any of theparties, the liability for the interest shall be shifted totallyon such defaulting party. Ethape ( 12 ) FA-433-2014(v)After the amount is deposited, the orig. claimant ispermitted to withdraw the amount from the office of thisCourt without requiring any formal application. (vi)With this, first appeal stands disposed off.(vii)In view of disposal of First Appeal, pending CivilApplications, if any, do not survive and same standdisposed off. [KISHORE C. SANT, J.]Ethape