1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 437 OF 2009 in CLAIM APPLICATION NO. 338 OF 2003 The Oriental Insurance Co. Ltd. ) 40/25, Bhonde Colony, ) Opp. Alurkar Music, Karve Road, ) Pune-4. ).. Appellant (Orig. Opponent No.2) Vs. 1. Saleel Mangalkumar Tatke ) Age 29 years, Occ: Srvice, ) R/at 4 Vidyavikas Society, 995 ) Shvaji Nagar, Pune-16. ) 2. Mr. Rajaram I. Bingi. ) Age 60, Occ. Profession, ) R/at 985 Sadashiv Peth, ) Bhupati Coomplex, Mumbai-30 ).. Respondents Mr. N.G.Ghotekar, Advocate, for the appellant. Mr.M.G.Barve,Advocate, for the respondent No.1. CORAM: J.H.BHATIA,J. DATE: 30th July, 2009. JUDGMENT: 1. Heard the learned Counsel for the parties. 2 2. To state in brief, the respondent No.1 was driving the Car bearing No. MH-12-BG-2507 belonging to respondent No.2 and insured with the present appellant. The son of respondent No.2, the claimant and one Afroz Khan were travelling by car. On 25.4.2002 at about 5 a.m. the accident took place. The car dashed against the road divider on the Mumbai-Pune Express Highway and in that accident, the respondent No.1 – Saleel and Afroz Khan were serious injured. Respondent No.1 filed Claim Application No.338 of 2003 seeking compensation. The owner of the vehicle i.e. Respondent No.2 did not appear. The Insurance Company contested the matter and admitted that the vehicle was insured with it. It was contended that the claimant himself was rash and negligent in driving the vehicle and he had failed to observe the traffic rules and regulations due to which the accident had taken place. The claim was denied in toto. Issues were framed and the trial Court held that the claimant had suffered injuries and permanent disability in the said motor accident and he is entitled to damages. Accordingly, award was passed granting compensation of Rs.3,91,515/- for which the owner of the vehicle and the insurance company were held jointly and severally liable. Against that judgment, the present Appeal is filed. 3. The learned Counsel for the appellant – Insurance Company 3 contends that the claimant had deposed that when a stone came across in front of the car, he tried to control the vehicle by applying the brake but brakes of the car failed and the accident had taken place. The learned Counsel contends that no plea of non-maintenance of the car was taken and therefore, the claim could not have been granted on the basis of the oral evidence. There appears no substance in this argument because the brakes depend on the rubber brake liners and it is possible that even though the vehicle is properly maintained, sometimes rubber parts may fail to perform due to wear or tear or any reason which may not be even known to the owner of the vehicle. The fact remains that when the vehicle was being driven by the claimant, the accident took place and he explained the circumstances leading to the accident. 4. The learned Counsel for the claimant-respondent no.1 points out that Afroz Khan had also filed a claim petition No.1504 of 2002 before the M.A.C.T., Pune, wherein he had contended that accident had taken place due to the rash and negligent driving, but in the proceeding, the Tribunal came to conclusion that accident had not taken place due to rash and negligent driving. However, the compensation was granted as he had suffered injuries in that accident. It is conceded by the learned Counsel for the Insurance company that against that judgment no appeal was preferred by the Insurance Company or by 4 the insured. Thus, that finding has become final. As such, it is clear that there was no fault on the part of the claimant and the accident had taken place during the use of the vehicle for one or the other reason, may be due to failure of the brakes,even then the owner of the vehicle is liable to pay compensation and the Insurance Company is liable to indemnify the insured. In view of these circumstances, even though it is First Appeal, I am not inclined to entertain the same. 5. For the aforesaid reaons, the Appeal stands dismissed. 6. C.A. No.1893 of 2008 seeking stay to the impugned order does not survive due to disposal of the Appeal. The Application stands disposed of. 7. The learned Counsel for the appellant makes a statement that full compensation amount has been deposited with the Tribunal and besides that an amount of Rs.25,000/- was also deposited with this Court at the time of filing the Appeal and therefore the said amount of Rs.25,000/- may be refunded to the Insurance Company. However, the learned Counsel for the respondent No.1 contends that full compensation amount and the costs are not deposited. Therefore, the amount of Rs.25,000/-, which was deposited in this Court, shall 5 be remitted to the M.A.C.T., Pune and that amount shall also be adjusted against the compensation and costs awarded. If any excess amount still remains, that may be refunded to the Insurance Company. (J.H.BHATIA,J.)