FIRST APPEAL NO. 539 OF 2018

21st January 2020

Petitioner Counsel: Shri H. N. Verma
Respondent Counsel: Shri S. Alaspurkar
Act Name: Motor Vehicles Act, 1988

Section :
Section 149 Motor Vehicles Act, 1988

JUDGEMENT

1. Heard.

2. Admit.

3. Heard finally with the consent of learned Advocates appearing for the parties.

4. This appeal is against the judgment of Motor Accident Claims Tribunal, Amravati in M.A.C.P. No. 265/2013.

5. On 8-6-2013 at about 5.00 p.m., deceased Pradip Lonare was going on motorcycle bearing No. MH-27-T-6047 from Badnera towards Akola as a pillion rider with Atul Solanke and Vaibhav Deshmukh. When they reached near “Y” point at new bye-pass road Badnera, that time, offending truck bearing no. WB-23-B-9212 came from opposite side in high speed in rash and negligent manner and gave dash to motorcycle. Due to said violent dash of truck, deceased Pradip sustained serious fatal injuries. He was taken to General Hospital, Amravati. He died during the treatment.

6. Legal heirs of deceased filed claim petition claiming compensation of Rs. 20,25,000/- The respondent no. 3 i.e. appellant appeared and filed written statement at Exhibit 12. Respondent nos. 1 and 2 i.e. owner and driver remained absent though served, therefore, the petition proceeded ex-parte against them. Issues were framed at Exhibit 22. The claimant no. 1 examined herself to prove her contentions. After hearing the claimants and respondent no. 3, Claim Tribunal partly allowed the petition and granted compensation of Rs. 13,55,200/- along with interest at the rate of 9% from the date of filing of petition till realization of the entire amount. Hence, the present appeal before this Court by the Insurance Company.

7. Learned Advocate Shri Verma for the appellant has submitted that deceased along with two others were going on two wheeler. It is in contravention of the provisions of the Motor Vehicles Act. Only two persons are allowed on two wheeler. The driver of the motorcycle lost control and, therefore, accident took place. It was a contributory negligence. Learned Advocate has submitted that the driver of offending truck was not having valid licence, therefore, the respondent – Insurance Company is not liable to pay any compensation. Hence, appellant be directed to pay the amount of compensation and may recover the same from the owner of the offending vehicle. Learned Advocate has pointed out judgments of the Apex Court in the case of (1) National Insurance Co. Ltd. Vs. Vidhyadhar Mahariwala and ors. [AIR 2009 SC 208] and (2) M.S. Middle High School Vs. HDFC Ergo General Insurance Co. Ltd. & Ors. in Petition (s) for Special leave to Appeal (C) No (S). 31406/2017 dated 22-11-2017.

8. Learned Advocate Shri Alaspurkar for the claimants/ respondent nos. 1 to 5 has pointed out the judgments of Apex Court in the case of (1) Shamanna and another Vs. Divisional Manager, Oriental Insurance Company Limited and others [(2018) 9 SCC 650] and (2) United India Insurance Co. Ltd. Vs. Lehru and others [(2003) 3 SCC 338] and submitted that in case of third party victim of motor vehicles accidents, the insurance company is bound to comply the award and may recover the amount from the owner of offending vehicle.

9. There is no dispute that deceased was third party. There is no dispute that offending vehicle was insured by the appellant. There is breach of policy condition as held by the Tribunal. The judgments cited by learned Advocate for the appellant are of the year 2008 and 2017 whereas the judgment of the Apex Court cited by learned Advocate for the claimants in the case of Shamanna and another Vs. Divisional Manager, Oriental Insurance Company Limited and others (supra) is of the year 2018. Hon’ble Apex Court in the case of Shamanna and another Vs. Divisional Manager, Oriental Insurance Company Limited and others has held that if the victim is third party, then insurance company is duty bound to satisfy the award. Learned Tribunal has rightly directed the appellant and owner of offending vehicle to pay the amount of compensation. It was directed that appellant may recover the same from owner. Section 149 of the Motor Vehicles Act itself is very clear. The Insurance Company has to satisfy the award first and then may recover the amount from the owner of the vehicle. In view of the judgment of Hon’ble Apex Court in the case of Shamanna and another Vs. Divisional Manager, Oriental Insurance Company Limited and others (supra), the appeal is devoid of merit, hence, it is dismissed with no order as to costs.