: 1 : SD IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.118 OF 1995 FIRST APPEAL NO.118 OF 1995 FIRST APPEAL NO.118 OF 1995 New India Assurance Co. Ltd., . Satara & Anr. ...Appellants V/s. Rajekhan Khadabaksha Mulla ...Respondent WITH WITH WITH FIRST APPEAL NO.117 OF 1995 FIRST APPEAL NO.117 OF 1995 FIRST APPEAL NO.117 OF 1995 New India Assurance Co. Ltd., . Satara & Anr. ...Appellants V/s. Rajekhan Khadabaksha Mulla & Anr. ...Respondents Mr.Dilip Bodke, Advocate, for Appellant No.2. Mr.G.H. Keluskar, Advocate, for Respondent No.1. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. DATE : 20TH FEBRUARY, 2008. DATE : 20TH FEBRUARY, 2008. DATE : 20TH FEBRUARY, 2008. JUDGMENT: JUDGMENT: JUDGMENT: 1. Heard Advocates appearing for the parties. Both the Appeals can be disposed of by a common Judgment as the same arise out of Judgments and Awards made by the learned Member of the Motor Accident Claims Tribunal in claims arising out of the same accident. 2. In First Appeal No.117 of 1995, the respondents are the claimants who filed the Petition for compensation on account of demise of one : 2 : Noorjaimab who was the wife of the 1st respondent. First Appeal No.118 of 1995 arised out of the claim filed by the respondent on account of demise of his minor son in the accident. 3. The 1st respondent in First Appeal No.117 of 1995 was driving the scooter. His wife, his minor son and daughter were sitting on the scooter at that time. The truck owned by the 2nd appellant gave a dash to the scooter. As a result, the wife of the 1st respondent and his son suffered injuries and ultimately succumbed to the said injuries. 4. The 1st appellant in both the First Appeals is the insurer of the truck and the 2nd appellant is the owner of the truck involved in the accident. The Appeals stand dismissed for non-prosecution in sofar as 1st appellant-Insurance Company is concerned as after service of Court service notice to the 1st appellant, none has appeared for the 1st appellant. 5. The learned Advocate for the 2nd appellant submitted that there was no negligence on the part of the driver of the 2nd appellant. The submission is that the 1st appellant did not file written statement and therefore the 1st appellant accepted the claim of : 3 : the original claimants. His submission is that the 1st appellant cannot recover compensation amount from the 2nd appellant. 6. I have considered the submissions. The 1st respondent in First Appeal No.117 of 1995 stepped into witness box and deposed as to how the accident occurred. He has stated that he was driving the scooter by left side of the road in a moderate speed when the truck owned by the 2nd appellant gave a dash to him. The 2nd appellant did not examine the driver and did not lead the evidence to challenge the evidence led by the 1st respondent. After appreciation of the evidence, the Tribunal rightly found that the negligence is on the part of the driver of the truck owned by the 2nd appellant. Therefore, no fault can be found with the finding of the Tribunal on the aspect of negligence. 7. The learned Member of the Tribunal held that the offending truck was validly insured on the date of the accident with the 1st appellant. In fact, a clear finding has been recorded by the Tribunal in paragraph No.11 of the Judgment which reads thus:- "Similarly, the truck was insured with : 4 : the opponent No.3, New India Assurance Company. Hence, the opponent No.3 is liable to re-imburse the said amount." 8. After recording the said finding, the learned Member of the Tribunal held the 2nd appellant herein liable to pay compensation jointly with the insurance company i.e. the 1st appellant. 9. Once it is held that there was a valid policy of insurance on the date of the accident, it is obvious that both under the contract of the policy and under the statute, the 1st appellant is liable to satisfy the Award made against the 2nd appellant. Therefore, there is no merit in the submission of the Advocate for the 2nd appellant that on the basis of the Award, the 1st appellant may initiate proceedings for recovery against the 2nd appellant. As pointed out earlier, in this case, there is a clear finding recorded that the truck was validly insured with the 1st appellant on the date of the accident. 10. Hence, there is no merit in the Appeals and subject to what is observed above, the Appeals are accordingly dismissed with no order as to costs. : 5 : [ABHAY S. OKA, J.] [ABHAY S. OKA, J.] [ABHAY S. OKA, J.]