1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.506 OF 1997 Dilwar P. Shaikh .. Appellant versus Mr.Nanjibhai Panchabhai & Ors. .. Respondents Ms. Shubhangi Deshmukh for the appellant. CORAM : A.S.OKA, J. DATE : 23rd November 2009. JUDGMENT: . Heard learned counsel appearing for the appellant who is the claimant in a Claim Petition filed under section 166 of the Motor Vehicles Act, 1988. 2. The appellant is the owner of a truck bearing registration No.CNL 7707. The 1st respondent is the owner of truck No.GRP 4245. The accident occurred on 31st August 1989. The case of the appellant is that the truck owned by the 1st respondent was being driven in rash and negligent manner as a result of which the said truck gave a dash to the truck owned by the appellant. The 2nd respondent is insurer of the truck of the 1st respondent. 2 3. The 2nd respondent filed a written statement contending that the truck owned by the appellant was also insured with the 2nd respondent. It was contended that a claim was lodged by the appellant with the 2nd respondent on the basis of the policy of insurance of the truck owned by him. It is contended that out of the claim of Rs.40,000/-, the 2nd respondent paid a sum of Rs.19,800/- to the appellant which was accepted by the appellant under protest. It was, therefore, submitted that the claim petition made by the appellant was not maintainable. The 2nd respondent did not dispute the fact that the truck owned by the 1st respondent was insured with it on the date of the accident. The issues were framed by the Tribunal on 12th September 1996. The learned Member of the Tribunal by order dated 30th December 1996 directed that the issue No.2 be tried as a preliminary issue. The said issue No.2 reads thus: “2. Whether the applicant is entitled to file present claim petition in view of earlier settlement of claim at Rs.20,000/- under `Own Damage’ or whether his claim petition is not maintainable as he is estopped from claiming more as that settlement was full and final?” 4. The learned Member of the Tribunal while passing the impugned order relied upon receipt issued by the appellant in the sum of Rs.19,800/- in favour of the 2nd respondent recording that the amount has been received in full and final discharge of the claim made by the appellant. The learned Member of the Tribunal, therefore, proceed to hold that the claim petition filed by the appellant was not maintainable. 3 5. The learned counsel appearing for the appellant submitted that the claim petition was filed by the appellant on the basis of allegation that the truck owned by the 1st respondent was being driven in rash and negligent manner as a result of which accident occurred and the truck owned by the appellant suffered damage to the extent of Rs.40,000/-. Incidentally, the insurer of both vehicles is same. The submission of the learned counsel appearing for the appellant is that if negligence on the part of the driver of the 1st respondent was established, the 2nd respondent was liable to pay compensation as the insurer of the vehicle owned by the 1st respondent. The learned counsel therefore submitted that the Tribunal has committed a gross error. 6. I have carefully considered the submissions. The claim made by the appellant was on account of damage caused to the truck owned by him as a result of the dash given by the truck of the 1st respondent. The claim was of Rs.40,000/- which included a claim of Rs.5,000/- on account of loss of business. It was contended that the repairing charges of Rs.35,000/- have been incurred by the appellant. 7. Incidentally, the vehicle owned by the appellant was also insured with the 2nd respondent and the claim made by the appellant with the 2nd respondent was on the basis of the policy of insurance of the truck owned by 4 the appellant. Assuming that only a part of the claim was sanctioned by the insurance company which was accepted by the appellant, the same will not prevent the appellant from proceeding against the 1st respondent who was the owner of the alleged offending truck. If negligence on the part of the driver of the said truck is established and if an award is made against the 1st respondent, the 2nd respondent will have to honour said award as the insurer of the vehicle owned by the 1st respondent. It is pertinent to note that before the Tribunal the learned counsel appearing for the appellant relied upon a decision of Division Bench of this Court in the case of Oriental Insurance Company Ltd Vs. Mahabaleshwar Sinai Salekar (1989 ACJ 425). The Division Bench observed that mere co-incidence that the insurer of both the vehicles is the same will not change the colour of the controversy. The Division Bench observed that if the claimant settled the claim with his own insurer, it will not amount to the claimant giving up his claim against the owner of the offending vehicle. 8. The finding of the learned Member of the Tribunal that the claim petition was not maintainable is completely erroneous. At highest, what can be said is while arriving at the quantum of compensation, the amount received by the appellant from the 2nd respondent in his capacity as his own insurer will have to be taken into account. 9. Therefore, the impugned order will have to be quashed and set aside 5 and Tribunal will have to be directed to hear and decide the claim petition on its own merits. 10. Hence, I pass the following order: : O R D E R : (a) The impugned judgment and award dated 6th February 1997 is quashed and set aside. (b) The preliminary issue framed by the Tribunal is answered against the 2nd respondent. (c) The Tribunal will proceed with the hearing of the claim petition and decide the same as expeditiously as possible and preferably within a period of six months from the date on which writ of this order is received by the Tribunal. (d) Appeal is partly allowed in above terms with no orders as to costs. (A.S.OKA,J)