1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD FIRST APPEAL NO. 470 OF 1996 New India Assurance Company Ltd. having its registered office at New India Assurance Building,87, M.G. Marg, Fort, Bombay-1 and having Divisional office at Appellant/ Aurangabad and Branch Office at ori.Resp. Latur. No.3. versus 01. Pandurang Bhawantrao Mundhe, age 44 years, occup. Agril. and business, r/of Latur Road,Latur. 02. Maheboon Tolansab Sheikh, age 52 years, occupation driver, r/of Chawandanagar, Ahmedpur, District Latur. 03. Ramniwas Mohanlal Purohit, Age major, occupation business, Truck Owner, r/of Sirur Tajband, District Latur. 04. Gurling Bandu Swami, age 28 years, occupation driver, r/of Chakur, District Latur. 2 05. Baburao Shivappa Kavthale, Resps./No.1 ori age 49 years, occup.business, claimant. Nos.2 r/of Sakol, Taluka Nilanga, to 4 ori.resp. District Latur. Nos.1,2,4 & 5. ------------------------------------------------------ Shri D. S. Kulkarni, Advocate, for the appellant. Shri V. C. Patil Advocate, holding for Shri U.B. Bondar, Advocate for Respondent No.1. Shri B.R.Sontakke Patil, Advocate for Respondent No.3. Respondent Nos. 2, 4 and 5 served and absent. ------------------------------------------------------ Coram : P.R. Borkar, J. Date : April 12, 2010 ORAL JUDGMENT 01. This first appeal is preferred by the Insurance Company-original respondent No.3 against the judgment and award passed by the learned District Judge - Ex-Officiao Member, Motor Accident Claims Tribunal, Latur in Motor Accident Claim Petition No.92 of 1992 decided on 23.1.1996, whereby original Respondent Nos.1 to 3 were directed to pay to original claimant compensation of Rs.18,178/= with 12 per cent interest per annum thereon towards damage caused to his vehicle which is insured with appellant-original Respondent No. 3. 3 02. Briefly stated, facts are that Respondent No.1 Pandurang Mundhe is the owner of Jeep bearing No.BMC-8557. He had purchased the said vehicle on 25.7.1991. However, when the accident took place the vehicle was not yet transferred in his name, but it was in the name of Respondent No.5 before the Tribunal who was original owner as per R.T.O. record. 03. On 30.10.1991 at about 9.30 p.m., Respondent No.4 was driving jeep on Latur Road and proceeding towards Latur. It is said that the jeep was in moderate speed and was being driven on left side of the road. At that time, truck bearing No. MH-24/8650 came from opposite direction in high speed. It was being driven in rash and negligent manner. The driver of the said truck could not control the speed of the truck and the truck gave dash to the jeep of Respondent No.1-claimant. As a result, cleaner of the jeep died on the spot and there was damage to the jeep to the extent of Rs.18,1787/=. Present Respondent Nos. 2 and 3 (original Respondent Nos. 1 and 2) were the owner and driver respectively of the truck and present appellant is the insurer of the truck. 4 04. Original Respondent Nos. 1 and 2 filed joint written statement at Exhibit 32 and denied that the truck was driven rashly and negligently. According to them, the accident took place due to negligence of Respondent No.4 who was driving the said jeep. Insurance Company (present Appellant-orig. respondent No.3) by written statement at Exhibit 12 took the same defence. 05. The learned Member of the Tribunal came to the conclusion that accident had taken place due to rash and negligent driving of the truck and he accepted evidence of claimant-present respondent No.1 that he incurred Rs.18,178/= over repairs of the jeep and consequently directed original Respondent Nos. 1 to 3 to pay to the claimant the said amount. 06. Heard Shri D. S. Kulkarni, Advocate, for the appellant, Shri V. C. Patil Advocate, holding for Shri U.B. Bondar, Advocate for Respondent No.1 and Shri B.R.Sontakke Patil, Advocate for Respondent No.3. Respondent Nos. 2, 4 and 5 although served are absent. 5 07. One of the main defences taken by the appellant-Insurance company is that its liability is limited only to the extent of Rs.6,000/= and as such it is not liable to pay more amount. The learned Member of the Tribunal has discussed evidence regarding negligence in paragraphs 6 to 9 of his judgment. Claimant-present respondent No.1 is examined at Exhibit 35. He also examined Respondent No.4-driver of the jeep at Exhibit 39. On the other hand, Respondent No.2 who was the driver of the truck in question is examined at Exhibit 47. 08. After discussing the evidence, it is noted by the learned Member of the Tribunal in paragraph 9 of his judgment that the truck had proceeded 135 ft. ahead from the spot of the incident where blood and flesh were lying. This clearly shows the extent of excessive speed of the truck and the fact that the driver of the truck was unable to control the vehicle. It has also come in the evidence that considering the spot panchanama, evidence of the jeep driver was more probable and it was accepted. 6 09. So far as main defence of the appellant- insurance company regarding its limited liability is concerned, it does not appear from the record that policy was produced on record to show that the liability of the insurance company was limited. In absence of such policy such defence cannot be accepted and hence appeal cannot be allowed on the ground. 10. In the result, first appeal is dismissed. pnd/fa470.96 (P.R.BORKAR, J.)