1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO.117 OF 1996 New India Assurance Co.Ltd., having its registered office at New India Assurance Building, 87, M.G.Marg, Fort, Bombay-400 001, and having Divisional Office at Aurangabad, Ahmednagar and Branch Office at Nasik. Appellant Versus 1 Smt.Veena Krishnappa Poojary, widow of Admeer Krishnappa Poojari, age: 40 years; 2 Vishal Krishnappa Poojary, age: 16 years; 3 Rohan Krishnappa Poojary, age: 12 years; All residing at D-3 Shri Kumar Cooperative Housing Society, near Military Camp, Santacruz East, Bombay. 4 Gorakshnath Pandharinath Joondhale, residing at Pahare, Tq.Sinnar, District Nasik. 5 Meenanath Pandharinath Jondhale, major, residing at Bahadarabad, Kopargaon, Dist.Ahmednagar. Respondents Mr.S.L.Kulkarni, advocate for the appellant. Respondents No.1 to 3 served. 2 Mr.C.V.Korhalkar, advocate for Respondents No.4 & 5.. CORAM: R.M.BORDE, J. DATE : 12th January, 2010. JUDGMENT: 1 This is an appeal by Insurance Company – original opponent no.3 raising exception to the judgment and award passed by Member, Motor Accident Claims Tribunal, Ahmednagar, on 13.12.1994 in Motor Accident Claims Petition No.89 of 1987. 2 Claimants claimed compensation on account of loss of life of one Admar Poojary in an accident which took place on 03.10.1986 near Shirdi Temple on Lasalgaon Road at 10.30 a.m. Claimants, who are heirs of deceased, in the claim petition, contended that deceased along with four others were proceeding to Shirdi on the fateful day in a Fiat Car bearing Registration No.MRF-5178. At the relevant time, a tempo bearing Registration No.MWN-1483, which was being driven by original opponent no.2 came from opposite direction. The tempo was being driven in a rash and negligent manner and was having excessive speed. It is contended that driver of the tempo lost control of the vehicle and gave dash to the Car which was being driven by deceased Admar Poojary. As a result of dash given by offending vehicle, deceased succumbed to the injuries, whereas, other inmates of the vehicle sustained injuries. It is the contention of claimants that after the accident in question, opponent no.2 – driver of the offending vehicle, left the spot without rendering any help or assistance to the injured. The passers bye rendered assistance and moved injured to the hospital. The driver of Fiat Car i.e. husband of claimant no.1 and father of claimants no.2 and 3 succumbed 3 to the injuries in the hospital. It is further contended that Opponent No.2, who was native of village Shirdi, managed police officials and was successful in recording false and fictitious panchanama. The First Information Report lodged by opponent no.2 also does not reflect proper picture and thus same also gives distorted facts. Claimants contend that deceased was securing monthly income of Rs.2500/- by way of salary, which was applied for maintenance of claimants. The offending vehicle i.e. tempo was insured with original opponent no.3. Claimants, as such, claimed compensation to the tune of Rs.4,00,000/- recoverable from opponents. 3 Opponents no.2 and 3 presented their written statements and controverted the contentions raised in the Claim Petition. They denied the contention that tempo in question was being driven in a rash and negligent manner. According to them, the vehicle driven by deceased was so driven in a negligent manner. It is contended that the vehicle in question involved in the accident came from wrong direction and gave dash to the tempo which was being driven by opponent no.2. It is alleged that driver of the vehicle i.e. Fiat Car was under the influence of liquor and said vehicle was driven in excessive speed. Opponents, as such, disowned their liability. Opponent no. 2 has admitted that offending vehicle was insured with Insurance Company, however, opponents denied their liability in respect of payment of compensation. 4 The Tribunal, after recording evidence of the parties, came to the conclusion that driver of Fiat Car i.e. deceased has contributed in the occurrence of accident. The Tribunal also recorded a finding that driver of offending vehicle i.e. opponent no.2 also cannot escape his liability as he was also responsible to certain extent in causing accident. The Tribunal 4 attributed liability to the extent of 60% for negligence on deceased, whereas, liability attributed to original opponent no.2 in respect of occurrence of accident is to the extent of 40%. The Tribunal, after ascertaining relevant circumstances, came to the conclusion that claimants would be entitled to receive compensation to the tune of Rs.2,00,000/-. However, taking into account liability in respect of causing accident attributable to the deceased being 60%, opponent no.2 was held liable to contribute the amount only to the extent of 40% and as such, opponents no.1 to 3 were jointly and severally held liable to pay compensation to the tune of Rs.80,000/-. It was found that amount of Rs.15,000/- has already been paid to the claimants towards no fault liability and as such, the Tribunal has directed original opponents to pay compensation to the tune of Rs.65,000/- along with interest at the rate of 12% p.a. from the date of filing of the application till realisation of amount. 5 The Insurance Company has raised challenge to the findings recorded by the tribunal in respect of fixing the liability on the Insurance Company to pay the amount of compensation. It is vehemently contended by Counsel appearing for appellant-Insurance Company that the Tribunal ought not to have held responsible Insurance Company for paying the compensation amount along with owner of offending vehicle. It is contended that liability of opponent-Insurance Company is limited to Rs. 1,50,000/- as per terms and conditions incorporated in the insurance policy and in this view of the matter, the Tribunal ought not to have fixed liability in respect of payment of compensation to the tune of Rs.Two lakhs. It is the contention of Insurance Company that the Tribunal was not justified in fixing total liability in respect of compensation attributable to all parties over and above Rs.1,50,000/-. In this view of the matter, even if Insurance Company is required to be held liable to pay compensation, it shall be 40% of limited 5 liability as per terms and conditions incorporated in the Insurance Policy, which would be less than Rs.80,000/-. 7 The arguments advanced by appellant is not at all acceptable. The powers of the Tribunal to grant compensation more than the limits of liability prescribed under the terms of Insurance Policy cannot be questioned by the appellant. The only limit in respect of fixing liability on the Insurance Company shall have to be determined in accordance with the terms of policy. The argument is totally misconceived and is not at all acceptable. The Tribunal has considered all aspects of the matter and has determined amount of compensation payable by the opponents properly. No other points are raised by appellant questioning validity of judgment and award passed by the Tribunal. Appeal is devoid of merit and, therefore, is liable to be dismissed. 8 Appeal, therefore, stands dismissed with costs. (R.M.BORDE) JUDGE ******* adb/fa11796