High Court
Legal Reasoning
Review Appln.(Stamp) No.8260/2023 inFirst Appeal No.55/2007:: 1 ::IN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADREVIEW APPLICATION (STAMP) NO.20071 OF 2023 INFIRST APPEAL NO.55 OF 2007 WITHCIVIL APPLICATION NO.8260 OF 2023Rukhmabai w/o Nimba Patil & ors. … APPELLANTS VERSUSSahebrao Chaitram Patil & ors.… RESPONDENTS.......Shri S.S. Jadhavar, Advocate for applicants Shri Girish Rane, Advocate for respondent No.1.Shri A.B. Gatne, Advocate for respondent No.3. ....... CORAM : R. G. AVACHAT, J. DATE : 30th NOVEMBER, 2023O R D E R :Heard. Civil Application No.8260/2023 is allowed.Delay condoned. 2.This is an application for review of the order dated13/10/2021, passed by this Court in First Appeal No.55/2007.By the said order, the appeal came to be allowed, granting theappellants enhancement in compensation. It was an appealpreferred against the judgment and award dated 25/7/2006, Review Appln.(Stamp) No.8260/2023 inFirst Appeal No.55/2007:: 2 ::passed by learned Member, Motor Accident Claims Tribunal,Dhule in Motor Accident Claim Petition No.516/2001. It was adeath claim. The claimants were legal heirs of deceasedNimba Patil, who died on 3/5/2001 in a vehicular accidentwhich occurred on 24/4/2001. It was an accident betweenthe two vehicles, namely truck bearing Registration No.MH-19/J-3738 and motorcycle bearing Registration No.MH-18/5204. The deceased was riding pillion.3.The learned Member, Motor Accident ClaimsTribunal, Dhule, by his judgment and award dated 25/7/2006,partly allowed the claim petition, granting compensation ofRs.53,500/- with interest @ 7.5% p.a. thereon. The awardwas passed against the driver and owner of the truck, originalrespondents No.1 and 2. The respondent No.3 in the claimpetition was the Insurance Company, which had admittedlygranted insurance cover to the truck involved in the accident.The Tribunal held the Insurance Company to be not liable topay any compensation for the following reasons :“11.Now, the only question that arises as towhether the L.Rs. of deceased who was pillionrider on the motorcycle on the date of accidentare entitled to claim compensation from the Review Appln.(Stamp) No.8260/2023 inFirst Appeal No.55/2007:: 3 ::respondent No.3. My answer to this point wouldbe in negative. In this connection, I may refer tothe decision of the Apex Court in the case ofUnited India Insurance Co. Ltd., Vs. Tilak Singhand Ors., reported in 2006(5) SRJ 513. The ApexCourt referring its earlier decision in the case ofPushpabai and Ors. Vs. M/sRanjit Ginning andPressing Co. (P) Ltd. & anr., reported in (1977) 2SC 745, T.V. Jose Vs. Chako P.M. AliasThankachane and others reported in (2001) 8SCC 748, New India Insurance Co. Vs. AshaRani and others reported in (2003) 2 SCC 223,held that the law on the subject is clear that athird party policy does not cover liability togratuitous passengers who are not carried for hireor reward, consequently the Insurance Companywas held not liable to pay the compensation.Since the deceased Nimba was travelling onmotorcycle of deceased Subhash Damu, as apillion rider, his risk was not covered under thepolicy of the offending truck. Consequently therespondent No.3 cannot be held liable to pay thecompensation to the L.Rs. of deceased Nimba.”4.The original claimants/ petitioners preferred theFirst Appeal for enhancement of compensation and holdingthe Insurance Company liable to pay the same. It appearsthat, pending the First Appeal, the truck owner passed away.His L.Rs. were not brought on record. It further appears that,while the First Appeal was decided on its own merits, noobjection was raised on the ground of failure to bring onrecord legal representatives of the owner of the truck. Review Appln.(Stamp) No.8260/2023 inFirst Appeal No.55/2007:: 4 ::5.This Court partly allowed the appeal in terms ofthe following order : (i)The impugned award granting compensation ofRs.1,03,500/- is enhanced to Rs.3,06,000/-.(ii)The respondents No.1 and 2 shall pay interest @ 7.5%p.a. on the amount of Rs.1,86,000/- from the date ofthe claim petition to the date of payment of the entireamount.(iii)The respondents shall pay interest @ 7.5% p.a. on thesum of Rs.1,20,000/- from the date of this order to thedate of payment of the said amount.(iv)Due adjustment be given to the amount already paid/deposited by the respondent – Insurance Company.6.Heard. According to the learned counsel for theapplicants, this Court committed error in not directing therespondent No.3 Insurance Company to pay thecompensation. According to him, the Insurance Company didnot raise any defence in the claim petition itself, which wouldhave exonerated it from its liability or even order in thenature of pay and recover could have been passed. Accordingto the learned counsel, when the respondent No.2 wasdeleted from the array of appeal memo, necessarily the
Legal Reasoning
Review Appln.(Stamp) No.8260/2023 inFirst Appeal No.55/2007:: 5 ::respondent No.3 Insurance Company became respondentNo.2, and this Court impliedly directed both, the driver of thetruck and the Insurance Company to pay the amount ofcompensation. According to him, while the award was beingprepared, the office raised objection that the InsuranceCompany remained to be respondent No.3 and it has not beenspecifically directed to pay the amount of compensation. Thisnecessitated the original claimants/ appellants to prefer thepresent application. He, therefore, urged for correction in theoperative order passed in the First Appeal No.55/2007.7.Learned counsel for the respondent InsuranceCompany raised the objection on the ground of LegalRepresentatives of the deceased truck owner to have not beenbrought on record in appeal and this application as well.According to the learned counsel, the review application is,therefore, not maintainable against the Insurance Companywhich is not directly liable to pay the compensation to theapplicants, since it was a contract of an indemnity betweenthe truck owner and the Insurance Company. Unless thetruck owner is held liable, liability of the Insurance Companywould not be there. The learned counsel also urged fordirections to the applicants to pay the requisite court fee Review Appln.(Stamp) No.8260/2023 inFirst Appeal No.55/2007:: 6 ::stamp on this review application.8.Considered the submissions advanced. Perusedthe judgment and award passed by the Tribunal. Also gonethrough the order passed by this Court in the First Appeal.Close reading of the pleadings and the evidence wouldundoubtedly suggest that the respondent Insurance Companydid not raise any defence either to have no liability to pay thecompensation or making out a case for passing order in thenature of Insurance Company first to pay the amount ofcompensation and then recover the same from the owner ofthe truck involved in the accident. The reasons given by theTribunal for dismissing the claim petition against theInsurance Company were erroneous.9.In First Appeal preferred against the award passedin the claim petition, the owner of the truck was one of therespondents (Respondent No.2). He passed away pending theappeal. Instead of bringing on record his legalrepresentatives, the appellants preferred to delete him fromthe array of the petition. That time no objection was raisedon account of his legal representatives being necessaryparties. This Court ought to have directed the respondent Review Appln.(Stamp) No.8260/2023 inFirst Appeal No.55/2007:: 7 ::Insurance Company to be liable to pay the amount ofcompensation. Passing not such order was a gross error onthe part of this Court. The same needs to be rectified. True,the legal representatives of the truck owner ought to havebeen brought on record in the First Appeal and in thisapplication as well. Since the First Appeal was allowed to bedecided without there being any objection in this regard, thisCourt now do not find it fit to direct the applicants to firstbring on record the legal representatives of the deceasedtruck owner in this application. This Court had initiallydirected to do so, but after having gone through the facts andcircumstances of the case, especially it being a death claimpertaining to the accident that took place way back in April2001, this Court did not propose to have legal representativesof the deceased truck owner to be brought on record first andthen decide the present application.10.Clause (iv) of the operative order dated13/10/2021 undoubtedly indicate that this Court was not withthe findings recorded by the Tribunal exonerating theInsurance Company from the liability to pay thecompensation. Review Appln.(Stamp) No.8260/2023 inFirst Appeal No.55/2007:: 8 ::11.For all the aforesaid reasons, the ReviewApplication is allowed modifying the order dated 13/10/2021passed in First Appeal No.55/2007 as under : O R D E R(i)The impugned award granting compensation ofRs.1,03,500/- is enhanced to Rs.3,06,000/-.(ii)The respondent No.1 – Sahebrao Chaitram Patiland respondent No.3 – The United India Insurance CompanyLtd. shall pay interest @ 7.5% p.a. on the amount ofRs.1,86,000/- from the date of the claim petition to the dateof payment of the entire amount.(iii)The respondent No.1 – Sahebrao Chaitram Patiland respondent No.3 – The United India Insurance CompanyLtd. shall pay interest @ 7.5% p.a. on the sum ofRs.1,20,000/- from the date of this order to the date ofpayment of the said amount.(iv)The entire amount under the award shall be paidby respondents No.1 and 3 – Insurance Company jointly andseverally. Review Appln.(Stamp) No.8260/2023 inFirst Appeal No.55/2007:: 9 ::(v)Due adjustment be given to the amount alreadypaid/ deposited by the respondent No.3 – The United IndiaInsurance Company Ltd.(vi)The applicants to pay requisite Court Fee on thisapplication for review.The Review Application stands disposed of.( R. G. AVACHAT ) JUDGEfmp/-