Smt. Anita Bajinath Gupta v. United India Insurance Company Limited

Shephali

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 320 OF 2015 WITH CIVIL APPLICATION NO. 1984 OF 2014 AND CIVIL APPLICATION NO. 1128 OF 2015 United India Insurance Co Ltd ...Appellant

Versus

Anita Baijnath Gupta & Ors

...Respondents

Mr R Mehta, i/b KMC Legal Venture, for the Appellant.

Mr RS Chahal, for Respondent No. 1.

CORAM: G.S. PATEL, J DATED:

PC:- 1.

By consent, the Appeal is taken up for hearing and final disposal forthwith. The R&P is dispensed with. Parties are agreed that the present compilation is sufficient.

2.

The Appeal is directed against an order dated 20th August 2013 of the Motor Accidents Claim Tribunal, Thane. The claim was under Section 166 of the Motor Vehicles Act 1988.

3.

The Claimants are the heirs and family members of one Baijnath Gupta. The claim was that on 22nd February 2009 at about 6.00 am, Baijnath Gupta was travelling from Vashi Vegetable Market in a tempo No. MH-04-BG-7802. The tempo overturned because it was being driven at a very high speed. Gupta sustained injuries in the accident and died on 25th February 2009. It was claimed he was doing business, paying income tax and had an annual income of Rs. 1,70,000/-. The claim filed was for Rs. 20 lakhs. The claim was that the driver of the vehicle, Respondent No. 1 to the plaint, Umashankar Satyanarayan Gupta, was negligent. The vehicle was insured with the Appellant, and owned by Umashankar Gupta. 4.

The vehicle owner did not contest the proceedings; the insurer did. It claimed that there was a breach of the insurance policy since a goods vehicle was being used to transport passengers. This ground is noted in paragraph 15 the impugned order. The insurer company led the evidence of one Mr Rakesh Rathod in support of this contention.

5.

The impugned Award, however, granted a claim in the amount of Rs. 4,54,000/- against Respondents Nos. 1 and 2 jointly and severally.

6.

There is no contest to the insurance company's claim and indeed there cannot be, that there was a breach of the policy conditions. The only party who can contest this, the owner, chose to stay away. The Claimant could hardly contest this, the deceased himself a passenger travelling unauthorizedly in a goods vehicle.

7.

In my view, the Tribunal could not and should not have made an award jointly and severally against both Respondents. It should, instead, have issued rendered a finding that the liability was of the owner, and at most it might have directed the insurer to pay and then recover the amount from the insured owner including in execution proceedings before the MACT. This is all that is required to be done. There is no real dispute as to quantum. 8.

The Appeal is, therefore, partly allowed. The insurer has already deposited the amount awarded. Hence, the order is modified to permit the Insurance Company/Appellant to recover the amount awarded from the insured owner. The original applicants are at liberty to withdraw the amount deposited with all accrued interest. The amount of Rs. 25,000/- deposited in this Court is to be transferred to the MACT, Thane and may also be allowed to be withdrawn by the original applicants.

9.

In view of this, the accompanying Civil Applications are infructuous, do not survive and are disposed of accordingly. (G. S. PATEL, J.)