1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. FIRST APPEAL NO.306 OF 1995 IN MOTOR ACCIDENT CLAIM PETITION NO.208 OF 1991 United India Insurance Company Ltd. Through its Branch Manager, Gandhari Chowk, Jalna. .... APPELLANT. VERSUS 1) Kirankumar s/o Dahayalal Shaha, Age-31 years, Occu:Business, R/o-Ambad, Dist-Jalna. 2) Maharashtra State Road Transport Corporation through its Divisional Controller, Osmanabad. 3) Shivaji s/o Asaram Bharajkar, Age-35 years, Occu: Business, Shivshakti Tractor Garage, Ambad, Dist-Jalna. .... RESPONDENTS. WITH FIRST APPEAL NO.310 OF 1995 IN MOTOR ACCIDENT CLAIM PETITION NO.18 OF 1992 United India Insurance Company Ltd. Through its Branch Manager, Gandhari Chowk, Jalna. .... APPELLANT. 2 VERSUS 1) Brajbala w/o Kirankumar Shaha, Age-30 years, Occu:Household, R/o-Ambad, Tq-Ambad, Dist-Jalna. 2) Maharashtra State Road Transport Corporation through its Divisional Controller, Osmanabad. 3) Shivaji s/o Asaram Bharajkar, Age-35 years, Occu: Business, Shivshakti Tractor Garage, Ambad, Dist-Jalna. .... RESPONDENTS. WITH FIRST APPEAL NO.311 OF 1995 IN MOTOR ACCIDENT CLAIM PETITION NO.209 OF 1991 United India Insurance Company Ltd. Through its Branch Manager, Gandhari Chowk, Jalna. .... APPELLANT. VERSUS 1) Kirankumar s/o Dayalal Shaha, Age-35 years, Occu:Business, R/o-Ambad, Tq-Ambad, Dist-Jalna. 2) Maharashtra State Road Transport Corporation through its Divisional Controller, Osmanabad. 3) Shivaji s/o Asaram Bharajkar, Age-35 years, Occu: Business, Shivshakti Tractor Garage, Ambad, Dist-Jalna. .... RESPONDENTS. 3 WITH FIRST APPEAL NO.312 OF 1995 IN MOTOR ACCIDENT CLAIM PETITION NO.19 OF 1992 United India Insurance Company Ltd. Through its Branch Manager, Gandhari Chowk, Jalna. .... APPELLANT. VERSUS 1) Kirankumar s/o Dahyalal Shaha, Age-35 years, Occu:Business, R/o-Ambad, Dist-Jalna. 2) Maharashtra State Road Transport Corporation through its Divisional Controller, Osmanabad. 3) Shivaji s/o Asaram Bharajkar, Age-35 years, Occu: Business, Shivshakti Tractor Garage, Ambad, Dist-Jalna. .... RESPONDENTS. WITH FIRST APPEAL NO.313 OF 1995 IN MOTOR ACCIDENT CLAIM PETITION NO.17 OF 1992 United India Insurance Company Ltd. Through its Branch Manager, Gandhari Chowk, Jalna. .... APPELLANT. 4 VERSUS 1) Dhaval Kumar s/o Kirankumar Shaha, under the guardianship of Kirankumar Dahayalal Shaha, Age-31 years, Occu:Business, R/o-Ambad, Dist-Jalna. (minor son). 2) Maharashtra State Road Transport Corporation through its Divisional Controller, Osmanabad. 3) Shivaji s/o Asaram Bharajkar, Age-35 years, Occu: Business, Shivshakti Tractor Garage, Ambad, Dist-Jalna. .... RESPONDENTS. ... Mr.D.V. Soman Advocate for the Appellant in all the Appeals. Mr.M.M. Patil (Beedkar Advocate for Respondent No.1 in all the Appeals. Mr.Y.M. Barhate Advocate h/f. Mr. A.B. Dhongade Advocate for Respondent No.2 in all the Appeals. Mr.M.D. Shinde Advocate for Respondent No.3 in all the Appeals (Absent). ... CORAM: K.K. TATED, J. DATE : 18TH JULY, 2009. ORAL JUDGMENT: 1. All these First Appeals are preferred by 5 United India Insurance Company Ltd. - original Respondent No.3 challenging the common Judgment and award dated 29th May, 1995 passed by Member, Motor Accident Claims Tribunal, Osmanabad. All these First Appeals can be disposed of by common Judgment because out of one and the same accident, these Applications were filed for compensation. A few facts of the present case are as under: 2. An accident took place on 30th August, 1991 at about 8.30 a.m. near Alani Fata on Aurangabad - Osmanabad Road in which Ichaben and Jeenalben died. In the same accident, Dhavalkumar, Kirankumar and Brajbala were injured. On 30th August, 1991 one Mr. Kirankumar Shaha along with his wife Brajbala and children including Jeenalben and Dhavalkumar, his mother Ichaben were proceeding to Tuljapur and Pandharpur by securing a friend's Jeep No.MXV 7730. One Atul Wahab Mannu Miya was driver on that Jeep. At about 8.30 a.m. when Jeep reached near Alani Fata on Aurangabad - Osmanabad Road, S.T. Bus No. MCA 8277 came from opposite direction and the accident took place. 6 3. Learned counsel appearing on behalf of the Appellant Insurance Company submitted that the Appellant is challenging the Judgment and decree passed by the Tribunal on following grounds only: "i) The driver of the Jeep was not negligent. ii) The Jeep was hired by the claimants. iii) Quantum of compensation." 4. Learned counsel for the Appellant Insurance Company submitted that Brijbala - claimant in Motor Accident Claim Petition No.18 of 1992 stated in Complaint at Exhibit 50 that they had hired the Jeep and therefore the Insurance Company was not liable to pay any compensation to the original claimants. Learned counsel for the Appellant Insurance Company submitted that there is a breach of terms and conditions of the insurance policy and therefore the owner of the Jeep alone was liable to pay the 7 compensation and not the Insurance Company. In support of his contention, learned counsel for the Appellant relied on the insurance policy issued by them in respect of the Jeep. He submitted that in view of breach of terms and conditions of the said insurance policy, the Insurance Company was not liable to pay any compensation. 5. On the other hand, learned counsel appearing on behalf of the Respondents - original claimants submitted that the insurance policy issued by the Appellant was comprehensive and therefore the Appellants were liable to pay the compensation. He further submitted that the accident took place because of negligence on the part of the jeep driver. Learned counsel appearing on behalf of the original claimants pointed out that Kirankumar, the head of the family in his deposition at Exhibit 48, specifically stated in cross-examination that the Jeep was procured for going to Pandharpur from original Respondent No.2. It is to be noted that statement at Exhibit 50 relied by the learned counsel for the Appellant was recorded by the police authorities when Brijbala was admitted in the 8 hospital. It appears that the police authority who recorded the statement of Brajbala, used the word "hired", while Brajbala in the vernacular stated that the Jeep was obtained or procured without mentioning that it was obtained against payment of some charges for its use. In the Concise Oxford Dictionary VII Edition, the one of the meanings of the word "hire" has been given "procure". Therefore from the use of word "hired" by police officer while transcribing the statement given by Brajbala in vernacular, it cannot be gathered that the vehicle was obtained or procured on payment of some charges. Had it been so, the Appellants in the cross-examination of Brajbala, could have got the matter clarified by asking her whether the owner was paid for procuring the vehicle. But this has not been done. In any case, being head of the family, Kirankumar know how he arranged the vehicle for their trip and he does not say that owner of the vehicle had charged any amount for the use thereof. The Tribunal considered these facts in Para 23 of the Judgment and held that Brijbala was not confronted on that point by the Appellant Insurance Company. Considering Exhibit 50 and evidence of PW1 Kirankumar, 9 I do not find any merit in the contention raised by the learned counsel for the Appellant Insurance Company that the original claimants hired the Jeep on payment of charges for their trip and therefore the Insurance company was not liable to pay any compensation. 6. Learned counsel for the Appellant submitted that deposition of PW1 as well as PW2 showed that the accident took place due to negligence on the part of the driver of the Bus. He pointed out that in the deposition PW1 Kirankumar, specifically stated that S.T. Bus gave dash to their Jeep. In similar way, Brijbala, in her cross-examination stated that: "It is not true that the accident occurred due to the error on the part of the Jeep driver." . On the basis of these admissions on the part of PW1 and PW2, learned counsel for the Appellant submitted that the accident took place due to rash and negligent driving on the part of the bus driver and therefore the Appellants were not liable to pay any 10 compensation to the Respondents - original claimants. In support of his submissions, learned counsel for the Appellant Insurance Company relied on the Authority in the matter of Himachal Paradesh Road Transport Corporation vs. Usha Kharbanda and others, reported in 1981 A.C.J. Page 72. In that case the High Court of Himachal Pradesh, considering the facts and circumstances of that case, held that the truck driver was guilty of rash and negligent driving. The decision in that case is distinguishable on facts. Learned counsel for the Appellant also relied on the Authority in the matter of Dr. T.V. Jose vs. Chacko P.M. alias Thankachan and others, reported in 2001 A.I.R. S.C.W. Page 3910. In that case the Apex Court held that insurer was not liable to pay compensation to the gratuitous passengers and third party policy did not cover liability to gratuitous passengers who were not carried for hire or reward. After going through the said Authority, I find that same is not applicable to the facts and circumstances of the present case. 7. On the other hand, learned counsel appearing on behalf of Maharashtra State Road Transport 11 Corporation stated that the accident took place because of rash and negligent driving of the Jeep driver. 8. Learned counsel for the original claimants submitted that the plea of rash and negligent driving as well as contributory negligence is not at all available to the Appellant Insurance Company at this stage. He submitted that the Insurance Company failed to apply for leave under Section 170 of the Motor Vehicles Act, 1988. Learned counsel for the Appellant also admitted that the Insurance Company has not filed any application under Section 170 of the Motor Vehicles Act, 1988 for leave to defend the case on all counts. Learned counsel for the Respondents - original claimants submitted that for want of leave under Section 170 of the Motor Vehicles Act, 1988, this issue could not be considered at all at this stage. In support of his submission, learned counsel for Respondents - original claimants relied on the Judgment in the matter of M/s. United India Insurance Co. Ltd. vs. Sow. Nirmala w/o Babulal Khairajani and others, reported in 2007 (4) ALL. M.R. Page 261. In 12 that case, the Division Bench of the Bombay High Court held that Insurance Company was not permitted to file an appeal questioning the quantum of compensation as well as finding as regards negligence or contributory negligence of the offending vehicle unless the conditions precedent specified in Section 170 of the Act were satisfied. He relied on Para 7 and 8 of this Authority, which read as under: "7. Taking into consideration the ratio laid down by the Supreme Court, insurance company could not have contested the claim before the Tribunal on all the defences available to the owner such as contributory negligence or quantum of the compensation awardable. Since there is no prayer in the written statement, even by suggestive sentences that in view of absence of owner and driver inspite of service, insurance company may be allowed to raise all the defences, it can not presumed even by implications that appellant insurance company is granted permission to raise all the defences as required by Section 170. In fact, as can be seen from the text of Section 170 and the ratio laid down by 13 the Supreme Court, the Tribunal is required to record a reasoned order before allowing the insurance company to raise all the defences beyond the scope of Section 149(2) of M.V. Act, 1988, as are available to the owner and driver of the vehicle. This is a case wherein present insurance company could not have been allowed to raise any other defences except the one regarding the driver of the truck not holding driving licence, which was raised in the concluding sentence in the written statement. Consequently, appeal, if any, by the insurance company could have been only on this ground. Advocate Shri. Upadhye has tried to meet the argument raised by Advocate Shri. Darak against the maintainability of the appeal by referring to Division Bench judgment of Bombay High Court reported at 1990 ACJ 60 - Oriental Fire & General Insurance Company Ltd. Vs. Rajrani Surendrakumar Sharma & others. He has relied upon contents in para 9, which read thus: "Therefore, if the person against whom the claim is made has failed to contest the claim, the insurer gets a right to contest the claim 14 on all or any of the ground that are available to the person against whom the claim has been made. Section 110-C(2-A) provides that in such a case if the insurer is not a party, the court may, for reasons to be recorded by it in writing, direct that the insurer who may be made liable in respect of such a claim shall be impleaded as a party. The insurer so impleaded thereupon gets the right to contest the claim on all grounds available to the person against whom the claim is made." "8. We are afraid, the Division Bench view of Bombay High Court can not be sustained or followed in the light of ratio laid down by the Supreme Court. The Supreme Court has mandated that in order that the insurance company may contest the claim on all grounds available to the owner, must satisfy the requirements of Section 170 of the Motor Vehicles Act, 1988. In the matter at hands, although owner and driver and not contested the claim and, thus, clause (b) of Section 170 was satisfied, the insurance company had raised one technical defence and 15 although they had raised other defences in the written statement, those were raised without permission from the Tribunal by an application u/s. 170, for the reasons to be recorded in writing by the Tribunal." 9. Learned counsel for the Respondents - original claimants further relied on the Judgment in the matter of National Insurance Co. Ltd. Chandigard vs. Nicolletta Rahtagi and others, reported in 2002 (4) ALL M.R. Page 874 (S.C.). In that case the Apex Court held that insurer had no right of appeal unless conditions prescribed under Section 170 were fulfilled. Para 25 of the Judgment reads as under: "25. We have earlier noticed that motor vehicle accident claim is a tortious claim directed against tortfeasors who are the insured and the driver of the vehicle and the insurer comes to the scene as a result of statutory liability created under the Motor Vehicles Act. The legislature has ensured by enacting Section 149 of the Act that the victims of motor vehicle are fully compensated and protected. It is for that reason the insurer cannot 16 escape from its liability to pay compensation on any exclusionary clause in the insurance policy except those specified in Section 1249 (2) of the Act or where the condition precedent specified in Section 170 is satisfied." 10. In view of the above law propounded by the Apex Court, it is crystal clear that for want of leave under Section 170 of the Motor Vehicles Act, 1988, Insurance Company cannot raise objection to the quantum of compensation as well as findings as regards negligence or contributory negligence of the offending vehicles. Therefore, it is not necessary to discuss in detail the objection raised by the learned counsel for the Appellant about negligence on the part of the bus driver. 11. The third contention raised by the learned counsel for the Appellant Insurance Company is about the quantum of compensation. Considering the facts and circumstances of the case and evidence on record, it is crystal clear that the Tribunal has granted compensation on lower side only. In the present case, Kirankumar was admitted in the hospital for one month 17 and thereafter he was attending the hospital at Ambajogai for two months as outdoor patient. In his Petition, the Tribunal has awarded compensation of Rs. 60,000/- with interest at the rate of 12% per annum from the date of Petition till the date of realization. In similar way, Brijbala deposed in her evidence that she was indoor patient in the hospital for about 25 to 30 days and thereafter she was required to attend the hospital at Ambajogai for one month for physiotherapy. In her case, the Tribunal has awarded Rs.70,000/- by way of compensation. In this way, the Tribunal has considered the whole evidence on record and awarded reasonable compensation to the original claimants. Therefore, I do not find any substance in the submissions made by learned counsel for the Appellant - Insurance Company that the Tribunal has awarded the compensation on a higher side. 12. In the result, there is no substance in the Appeal and it is dismissed with no order as to costs. 13. Learned counsel for original claimants 18 submitted that the Insurance Company deposited certain amount in this Court and the same is invested in Fixed Deposits, the said amount to be released to the respective claimants. Office is directed to release the said amount along with accrued interest, if any, to the respective claimants, after the Appeal period is over. [K.K. TATED, J.] asb/JULY09/fa306.95