NEW INDIA ASSURANE COMPNAY LTD. Vs SMT VATSALABAI ABHIMANYU SOMKUVAR & OTHERS.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH : NAGPUR

First Appeal No. 126 of 2004 Appellant : New India Assurance Company Limited, through its' Divisional Office, Amravati.

Versus

Respondents: 1. Smt. Vatsalabai Wd/o Abhimanyu Somkuvar, aged major, occupation - household work.

2. Vijay @ Pramod S/o Abhimanyu Somkuvar, aged major, occupation - not known

3. Kum. Archana D/o Abhimanyu Somkuvar, aged major, occupation - not known

4. Kum. Ranjana D/o Abhimanyu Somkuvar, aged major, occupation - not known All Residents of Thanegaon

Tahsil - Karanja, District - Wardha.

5. Wasudeo S/o Mahadeorao Jawane, aged major, occupation - driver, R/o Jalalkheda, Tahsil - Narkhed, Dist. Nagpur.

6. Sau. Kusumbai W/o Gidrdhar Vardkar, aged major, owner of vehicle, R/o Near Bus Stop, Jalalkheda, Tahsil - Narkhed, Dist. Nagpur.

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Mr A. J. Pophly, Adv for appellant Mr M. B. Naidu, Advocate for respondents no. 1 to 4 Ms U. A. Patil, Advocate for respondent no. 5

Coram : A. P. Bhangale, J Dated : 5^th August 2013 Oral Judgment

1. Being aggrieved by the judgment and Award dated 28^th August 2003 passed by the Member Motor Accident Claims Tribunal, Wardha in Claim Petition No. 131 of 1998 granting compensation of Rs. 2,09,000/- (inclusive of no-fault claim) to be paid by present appellant and respondents no. 5 and 6 to the original claimants.

2. Facts in brief are that Abhimanyu, husband of respondent no. 1 and father of respondents no. 2 to 4 was travelling in a good vehicle viz. Metador bearing registration No. MH-31/N-6148 on 4^thJune 1998 from Khairgaon to Jalalkheda to bring grocery items. Respondent no. 5 was driver while respondent no. 6 was owner of the Metador in question. Vehicle met with an accident resulting into death of Abhimanyu.

3. Learned counsel for appellant contends that deceased Abhimanyu was travelling in a goods vehicle as a gratuitous passenger at his own risk and appellant insurer should not have been held liable for payment of compensation along with driver and owner of the vehicle. He contends that the Tribunal committed an error of law in not applying the ratio laid down by the Apex Court in National Insurance v. Kaushalya

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Devi & ors reported in I (2009) ACC 52 (SC).

4. I have perused impugned judgment and award together with oral and documentary evidence on record. The Tribunal did not apply the judgment in National Insurance v. Kaushalya Devi & ors (supra), because deceased Abhimanyu was not found to be a gratuitous passenger. It was gathered from the evidence led on record that he was going to Khairgaon to bring grocery items for marriage of his relative's daughter to be performed on 5.6.1998. There is thus no reason to interfere with the impugned judgment and award since no other point was argued.

5. With the development of law, liability of the Insurance Company has been made strict to the third party even if there is no negligence or even if defences to the insurance company are available. As a result of judicial precedents, insurer is entitled to recover the compensation amount paid to third party from the owner of offending motor vehicle. This recovery can be made by mere filing of an execution application and not by a separate civil suit.

6. In the result, appeal is dismissed with no order as to costs. Liberty to the appellant to adopt remedy in the light of observations in paragraph 5 above if so advised. Amount deposited by appellant in this

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Court be transferred to the Tribunal for the purpose of execution of Award.

A. P. BHANGALE, J

joshi