IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL JURISDICTION CIVIL APPLICATION NO.655 OF 2009 IN CIVIL APPLICATION NO.4966 OF 2008 IN FIRST APPEAL ST. NO.22449 OF 2008 Divisional Manager, National Insurance Co. Ltd. ...Applicant. v. Aruna D. Devre & Ors ...Respondents. Mr. N.G.Ghotekar, adv. For the Applicant. CORAM : J.H. BHATIA, J. DATED : 29th August , 2009 P.C. 1 Civil Application No.4966 of 2008 for condonation of delay in filing the first appeal was dismissed on the appellant/applicant failing to file the affidavit as per the order dated 26th November, 2008. Now the learned counsel for the applicant seeks to tender the affidavit. For the reasons given in the application, present application is allowed and the Civil Application No.4966 of 2008 is restored to the file. 2 Application stands disposed off. (J.H. BHATIA,J.) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL JURISDICTION CIVIL APPLICATION NO.4966 OF 2008 IN FIRST APPEAL ST. NO.22449 OF 2008 Divisional Manager, National Insurance Co. Ltd. ...Applicant. v. Aruna D. Devre & Ors ...Respondents. Mr. N.G.Ghotekar, adv. For the Applicant. CORAM : J.H. BHATIA, J. DATED : 29th August , 2009 P.C. 1 This application is today restored to the file as per separate order in Civil Application No.655 of 2009. The learned counsel for the applicant has tendered the affidavit of one Ravi S. Bangera authorised signatory of the applicant explaining delay of 109 days in filing the appeal. As per the affidavit, award was passed on 18.12.2007 and application for certified copy was made on 20.12.2007. Certified copy was ready on 26.2.2008. Thereafter, legal opinion of the concerned advocate was sought. That opinion was available on 31.3.2008. Thereafter, on 9.4.2008 note of the Divisional Office, Nashik was sent to Pune Regional Office to prefer appeal. Note reached the Pune Office on 28.4.2008. Thereafter, one of the committee members of the original - 2 - Committee was on leave. Decision was taken on 27.5.2008 to prefer an appeal. Note to that effect was sent to Pune Regional Manager on 27.5.2008. Thereafter, the file reached to Mumbai Regional Office on 16.6.2008. After the final decision, matter was referred to an advocate for filing the appeal. He gave a note to issue cheque for mandatory deposit of Rs.25,000/-. Cheque was issued on 14.7.2008. Then sometime was taken for English translation of original Marathi order and finally on 23.9.2008, the appeal was filed. Excluding the period of limitation and the period taken in obtaining certified copy of the impugned order, there was delay of 109 days. Taking into consideration the explanation given in the affidavit, delay is condoned. 2 Application stands disposed off. (J.H.Bhatia, J.) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL JURISDICTION FIRST APPEAL ST. NO.22449 OF 2008 WITH CIVIL APPLICATION NO.4967 OF 2008 Divisional Manager, National Insurance Co. Ltd. ...Appellant. v. Aruna D. Devre & Ors ...Respondents. Mr. N.G.Ghotekar, adv. For the Applicant. CORAM : J.H. BHATIA, J. DATED : 29th August , 2009 P.C. 1 The appeal be registered. Heard Mr. Ghotekar the learned counsel for the appellant/Insurance Company. The respondent Nos.1 and 2 had filed claim petition no.694 of 2000 (Old No.194/2000) seeking compensation of Rs.1 lakh under Section 166 of the Motor Vehicle Act for the death of their daughter Monica in the motor accident. Monica was aged about 6 years at the time of her death on 8.8.1999. It was contended that while she was going by the left side of Mumbai-Agra Road within the limits of village Umrane, Opponent No.1 Bharatsingh drove tempo bearing no. MH-18-M-162 in rash and negligent manner and dashed against Monica and caused her death. Vehicle was owned by the opponent no.2 and insured with the opponent no.3. Opponent No.1 did - 2 - not appear in spite of the service of summons. Respondent no. 2/Opponent No.2 could not be served and, therefore, claim against the respondent no.2 came to be dismissed for want of service. Opponent No. 3 National Insurance Company filed written statement Exhibit 24 and denied that vehicle was insured with it. It was also denied that accident had taken place due to the rash and negligent driving or that the vehicle was involved in that accident. 2 Several issues were framed. After hearing the parties, the learned Member of the Tribunal came to conclusion that the accident had taken place with the said vehicle due to rash and negligent driving and it resulted in death of Monica, daughter of the claimants. The learned Member also came to conclusion that vehicle was insured with the opponent no.3 Insurance Company. The learned Member passed the award holding the opponent no.1 and 3 jointly and severally liable to pay compensation of Rs.50,000/- with interest at the rate of 6% p.a. That amount was including compensation on the principal of ‘No Fault Liability’ under Section 140 of the Motor Vehicle Act. That order has been challenged by the Opponent No.3 3 The learned counsel for the Insurance Company mainly - 3 - contended that when the claim has been dismissed against owner of the vehicle and he had not produced any document to show that the vehicle was insured with the insurance company, no liability can be fastened on the Insurance Company. On perusal of the judgment of the learned Member of the M.A.C.T., it appears that on behalf of the claimants, a witness was examined from the office of the R.T.O., who produced relevant documents and proved that as per the record of the R.T.O., said vehicle was insured with the Opponent No.3/appellant vide policy no.206496 for a period from 24.6.1999 to 25.4.2000. Accident had taken place on 8.8.1999, i.e., during the period when the insurance policy was in force. The learned Member noted that on behalf of the Insurance Company, no evidence was led to rebut the claim of the claimants that the offending vehicle was insured with the opponent no.3. In view of the evidence led by the claimants, if still the insurance company was of the view of that the vehicle was not insured with it, some witness should have been examined to rebut the same. However, no such attempt was made. In view of this, there was no reason to reject the evidence coming from the office of the R.T.O. to prove that vehicle was insured with the opponent no.3. Therefore, no fault can be found with the learned Member of the M.A.C.T. in holding that the vehicle was insured. - 4 - 4 Once, it is proved that the vehicle was insured with the present appellant, the present appellant had statutory liability to pay compensation to third party. Incidentally, in this case, total compensation awarded is only Rs.50,000/- which is also minimum liability of the Insurance Company to pay in case of death because of use of the vehicle insured with it under the principle of No Fault Liability. Therefore, I find no fault with the impugned order nor I find any substance in the present appeal. 5 Therefore, the appeal stands dismissed. 6 Rs.25,000/- , which is already deposited with this Court be remitted back to the trial Court, where execution petition is pending. 7 As the appeal itself is dismissed, Civil Application No.4967 of 2008 for stay does not survive and stands disposed off accordingly. (J.H.Bhatia, J.) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL JURISDICTION CIVIL APPLICATION NO.50 OF 2008 IN FIRST APPEAL ST. NO.22449 OF 2008 Divisional Manager, National Insurance Co. Ltd. ...Applicant. v. Aruna D. Devre & Ors ...Respondents. Mr. N.G.Ghotekar, adv. For the Applicant. CORAM : J.H. BHATIA, J. DATED : 29th August , 2009 P.C. 1 For the reasons given in the application, application allowed and delay is condoned. (J.H.Bhatia, J)