1 F.A..No. 2513 of 2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD FIRST APPEAL NO. 2513 OF 2011 The New India Assurance Company Ltd., a subsidiary of the General Insurance Corporation of India and a company Incorporated under the Companies Act having one of its Divisional office at Adalat Road, Aurangabad Through its Manager (Legal Hub) & Authorized signatory, Shri Sanjeev S/o Ramrao Gaisamudre, Age 52 yrs., occ. Service at The New India Assurance Co. D.O. No.1 Adalat Road, Aurangabad ..APPELLANT (Ori. Resp.No.2) VERSUS 1. Sunil s/o Sampath Gidane, Age 35 yrs., occ.nil, r/o Chitegaon, Tk. Paithan, District Aurangabad [Claimant] 2. Shaikh Majid Shaikh Ahmad, Age 40 yrs., occ.Driver-owner, R/o Kannad, Tk. Kannad District Aurangabad (Owner – driver) ..RESPONDENTS (R.No.1 : Orig.Claimant, R.No.2 : Orig.R.No.1) Mr Ajit B. Kadethankar, Advocate for the appellant; Mr Pramod F. Patni, Advocate for respondent no.1 CORAM : MRS MRIDULA BHATKAR, J. DATE : 12th October, 2011 2 F.A..No. 2513 of 2011 ORAL JUDGMENT Admit. With the consent of learned Counsel for the parties, this appeal is heard finally at the stage of admission. 2. This appeal is directed against the judgment and award, dated 19.1.2011, passed by the Member, Motor Accident Claims Tribunal, Aurangabad in the injury claim filed by respondent no.1, namely M.A.C.P. No.572 of 2008. Respondent no.2 in the appeal is owner and Driver of the jeep. The accident took place on 10.3.2008 on Paithan – Aurangabad road. The claimant was travelling in jeep bearing No.MH-28-2741. Respondent no.2, who was driving the vehicle lost control as he was driving rash and negligently and the vehicle dashed to the tree. The claimant sustained injuries. His left leg was fractured. He incurred expenses on the treatment. He filed claim petition under section 166 of the Motor Vehicles Act seeking compensation of Rs.2,00,000/-. The said claim was contested by the insurance company who was respondent no.2 in the claim petition. The claimant examined himself and also a Doctor, who treated him and issued injury certificate. After assessment of the evidence, learned Member of the Tribunal allowed the claim and granted compensation to the extent of Rs.94,120/- with interest at the rate of 9% per annum from the date of filing of the claim petition. Being aggrieved by the said judgment and award, the insurance has preferred this appeal. 3 F.A..No. 2513 of 2011 3. Learned Counsel for the appellant - insurance company submits that before the Tribunal neither insurance company filed the policy nor the claimant or owner/driver of the vehicle produced insurance policy. He points out the copy of the policy which is produced along with the appeal memo, which covers the claim of the passengers in the jeep upto Rs.1,00,000/- per person. Policy was valid at the relevant time. Learned Counsel submits that as the policy was not produced, the Member held that the amount is to be paid by the insurance company. Though the driver and owner is held liable, the insurance company was directed to pay the entire amount and that can be recoverred from owner and driver. He further pointed out that in the judgment the Tribunal has observed that there is a breach of policy as the injured claimant was a gratuitous passenger and the risk of the gratuitous passenger is not covered under the policy. He submits that the matter may be remanded. 4. This appeal involves a very short issue. It is an admitted fact that the policy which is produced in appeal is a valid policy wherein the risk of the passenger is covered upto Rs.1,00,000/- per person. The Tribunal has granted compensation upto Rs.94,120/-, which is well within the limit covered in the policy. 5. The vehicle involved is a jeep, which is not a vehicle transporting the passengers and there is no question that payment or travelling paid passenger. To that extent the finding of the Tribunal is incorrect. 4 F.A..No. 2513 of 2011 However, as the policy was not produced by either of the parties, the Tribunal has rightly held that it is a case covered under pay and recover and directed the insurance company to deposit the entire amount of the award. As the policy is now produced and the risk is covered upto Rs. 1,00,000/-, there is no other challenge by the insurance company on any issue before the Tribunal, there is no need to remand the matter and no need to interfere in the judgment and award passed by the Tribunal. Thus, the appeal fails and is accordingly dismissed. 6. Learned Counsel for respondent no.1 claimant submits that as the insurance company has deposited the entire amount of the award, he be allowed to withdraw the same. Respondent no.1 - original claimant is allowed to withdraw the amount which is deposited by the insurance company and the interest accumulated thereon from this Court. ( MRS MRIDULA BHATKAR, J.) amj/fa2513.11