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CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.172 OF 2019
IN
FIRST APPEAL NO.172 OF 2019
1) SMT. MANISHA SANJAY NIKAM )
Age 39 years, Occ : Household )
)
2) SHRADDHA SANJAY NIKAM )
Age 20 years, Occ : Education )
)
3) MAYURI SANJAY NIKAM )
Age 15 years, Occ : Education )
)
4) JAY SANJAY NIKAM )
Nos. 3 & 4 are minors through ) guardian Mother i.e. Applicant No.1 )
)
5) SHANTABAI BALASO NIKAM (Deceased) )
Through L.R’s i.e. Applicant Nos.1 to 4 )
All above R/at : Vadoli Bhikeshwar, )
Taluka – Karad, District – Satara. )...APPLICANTS
IN THE MATTER BETWEEN
1) THE NEW INDIA ASSURANCE CO. LTD. )
Through Mumbai Legal Hub Branch )
No.151701, Near Kamani Haud, Satara, )
Taluka & District Satara, 1036-E, )
Rajaram Road, Kolhapur. )
4th
Floor, Maker Tower – E, Near )
World Trade Centre, Cuffe Parade, )
Mumbai – 400005 )...APPELLANT
Age 39 years, Occ : Household )
)
2) SHRADDHA SANJAY NIKAM )
)
3) MAYURI SANJAY NIKAM )
Age 15 years, Occ : Education )
)
4) JAY SANJAY NIKAM )
Nos. 3 & 4 are minors through ) guardian Mother i.e. Applicant No.1 )
)
5) SHANTABAI BALASO NIKAM (Deceased) )
Through L.R’s i.e. Applicant Nos.1 to 4 )
All above R/at : Vadoli Bhikeshwar, )
Taluka – Karad, District – Satara. )
)
6) MAHINDRAKUMAR MANSUKHLAL SHAH )
Age 39 years, Occ : Business )
R/at : 33, Ajinkya Co-op. Housing )
Society, Sadarbazar, Satara, )
Taluka & District Satara. )
)
7) PRASHANT BHAGWAN SHIDTURE )
Age : Adult, Occ : )
R/at : Jalgaon, Taluka – Koregaon )
District – Satara (DELETED) )...RESPONDENTS
2021.
Mr.D.S.Joshi, Advocate for the Respondent in I.A.No.765 of 2021 and Appellant in F.A.No.172 of 2019.
JUDGMENT
1 This first appeal is preferred by the New India Assurance Company Limited (original respondent) against the judgment and order dated 13th April 2018 passed in M.A.C.P. No.62 of 2013 by the learned Member, M.A.C.P., Karad thereby directing the appellant and others to pay jointly and severally to the claimant a sum of Rs.7,11,000/- towards compensation together with simple interest thereon at rate of 6% p.a. from the date of petition till realization of entire amount within two months from the passing of the judgment and order.
2 I have heard both the parties. The learned counsel for appellant has raised a very short issue. As far as the amount of award is concerned, it is not disputed. However, according to the learned counsel for appellant, the learned Tribunal ought to have considered that on the date of accident, the driver was not holding a valid driving license and in such circumstances, it ought to have ordered that the appellant is entitled to recover the amount of award from the owner of the vehicle of the offending truck, which was rejected by the learned Member.
3 I have also heard the learned counsel for the respondent / claimant who also admits the position of law and has no objection if it is so ordered by this Court.
4 On going through the record it is seen that respondent no.6 - owner of the offending truck though duly served through private notice i.e. through Registered A.D./ Speed Post (Flag B) but remained absent. It is also seen from the record that during the pendency of the present appeal, the driver of the said offending truck i.e. respondent no.7 came to be deleted, in view of pursis (Exhibit 21) filed before the M.A.C.T.
5 Perused the impugned judgment and order.
6 Though learned trial Court noted that on the date of accident the driver of the offending vehicle was having no driving license, but made following observations at paragraph 21:
6 In Parminder Singh vs. New India Assurance Company Ltd. & Ors.1, the Hon'ble Apex Court has held as under:
7 In Shamanna and Another vs. Divisional Manager, Oriental Insurance Company Limited and Others[2], the Hon'ble Apex Court has has held as under:
8 From the impugned judgment and order at hand it is more than clear that on the date of accident the driver of the offending vehicle was having no valid driving license. This being so, the learned Member, M.A.C.T., could not have overlooked that infirmity while fixing the responsibility of the respondents. It seems that the learned Member also did not keep in mind the above dictum of the Hon'ble Apex Court and for that simple reason the finding of the learned Member is not sustainable in law.
9 In the result, the impugned judgment and order of the learned Member of the M.A.C.T., in so far as amount of award is concerned, the same is affirmed. Further, in so far as direction given to the appellant directing the appellant to pay the sum of Rs.7,11,000/- towards compensation together with simple interest is concerned, is set aside, and the appeal is partly allowed. In view of above, pending Interim Application 765 of 2021 also stands disposed off.
10 I direct that the appellant Insurance Company shall pay the compensation to the respondents/claimants along with accrued interest and the appellant Insurance Company shall recover the same from the owner of the vehicle i.e. respondent no.6. No costs. (V. G. BISHT, J.)