1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO.866/2010 M/S NEW INDIA ASSURNCE CO LTD. Appellant. having its regd.head office at 87,M.G.Road, Mumbai 440001 branch office at Beed and Divisional Office No.1 Ajay Eng Compound Adalat Road, Aurangabad 431005 through its Sr. Divisional Manager and duly constituted Attorney Vishwas Bansi Gaikwad aged about 50 years. VERSUS ARVIND RANGANATHRAO KUTE Respondent. age 36 years, Occ. Agriculture r/o Pimpalgaon Kute. Tq. Basmath Dist. Hingoli. Advocate(s) for Petitioner: V N Upadhye R/sole Served ===== CORAM : R.M.BORDE, J. DATE : 27 th JUNE, 2011. ORAL JUDGMENT : 1. Heard. ADMIT. 2. The appellant-Insurance company is challenging the order passed below Exhibit No.5 in MACP No.27/2007, decided on 14.10.2008. 2 Inspite of service of notice, none appears for respondent. While directing issuance of notice, it was informed to the respondent/original claimant that the appeal would be heard finally at admission stage. 3. The claimants contends that he sustained permanent disability in vehicular accident which occurred on 14.10.2006. The claimant himself is the owner of the vehicle and while driving the vehicle i.e. Jeep he lost control and jeep gave dash to a stationary object. As a result of accident, the claimant suffered fracture of right hand humerus, midshaft with brachial art transaction median nerve transaction etc. The claimant was admitted to the Civil hospital. After his discharge from hospital, the claimant presented claim petition claiming compensation against the insurance company under section 166 of Motor Vehicles Act. An application Exh.5 claiming compensation on account of 'No Fault Liability' to the tune of Rs.25,000/- was also presented. 4. The Insurer presented written statement and objected the entertainability of the application. According to the insurance company, the risk of the owner, who was driving the vehicle in question at the time of occurrence of the accident is not covered. Trial Court, however, on considering the contentions raised by respective parties, was pleased to allow the application and directed the insurer to pay a sum of RS.25,000/- 3 towards 'No Fault Liability' to the claimant within 45 days from the passing of the order. 5. I have perused the order passed by the Member, Motor Accident Claims Tribunal, Parbhani. Shri Upadhye learned counsel appearing for the insurer pointed out the Rules and Regulations framed by the Tarrif Advisory Committee in the matter of grant reimbursement in respect of the accident claims. It is recorded in paragraph No.15 of the regulations that the risk in respect of an accident of a vehicle at the instance of owner is covered only in the event of loss of one limb or sight of one eye and scale of compensation permissible is 50%. In case of loss of two limbs or sight of two eyes or one limb and sight of one eye scale of compensation permissible is 100%. It is also pointed out that in case of permanent total disablement as a result of the injuries, other than injuries specified above, scale of compensation permissible is 100%. It is thus the contention of the insurer that in the event of any loss which is out side the purview of paragraph N.15 of the guidelines, the insurance company is not liable for payment of compensation to the claimant. In the instant case, the loss suffered by the claimant is to the extent of 20% and is on account of fracturing of bone. He does not appear to have sustained any injury as specified in paragraph No.15 of the guideline. 4 5. Since the respondent is served and did not cause appearance in the matter and since application under section 166 is stated to be pending before the Tribunal, I do not deem it appropriate to record any finding on the objection raised by the insurer in this appeal. The ends of the justice would be meet, if the question raised by the insurer in this appeal is kept open and the Tribunal is directed to decide the issues while disposing of the claim petition under section 166 of the Motor Vehicles Act, presented by the claimants. Appeal can be disposed of by directing the Tribunal to decide the issues raised in the instant appeal, while disposing of claim petition presented by claimant under section 166 of Motor Vehicles Act. The amount deposited by the insurance company in this Court shall be transmitted to Motor Accident Claims Tribunal and District Judge -2 Parbhani. The entitlement of claimant to receive the amount would be subject to final out come of the claim petition presented by the claimant under section 166 of the Act. Trial Court is directed to decide the claim application presented by the claimants under section 166 of the Motor Vehicles Act and consider all the objections raised by the Insurance Company including the objections raised in the instant appeal. With these directions, instant appeal stand disposed of. In the facts and circumstances of the case, there shall be no order as to costs. In view of 5 the disposal of appeal, pending civil application, if any, does not survive and stand disposed of. Record and proceeding be sent back to the concerned Tribunal forthwith. ( R.M.BORDE ) JUDGE aaa/866.10 ...