The New India Assurance Co.Ltd. vs Manda Bharat Gawane And Ors.

CNR No : HCBM010203072006

2026:BHC-AS:44435
7-FA-1458-06.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.1458 OF 2006
The New India Assurance Co.Ltd.
Sharda Center, Karve Road, Pune ...Appellant
Vs.
1. Manda Bharat Gawane
Age 36 years. Occ. Housewife
2. Rupali Bharat Gawane
Age 17 yres. Occu: Student
3. Archana Bharat Gawane
Age 15 yrs. Occu: Student
4. Ganesh Bharat Gawane
Age 13 yrs., Occu: Student
5. Subham Bharat Gawane
Age 9 yrs. Occu: Student
(Applicant Nos.2 to 5 being minors,
through their natural guardian-mother-
applicant No.1)
6. Smt. Yashoda Bansi Gawane
Age 61yrs. Occu: Nil
(All residing at Koregaon-Bhima,
Tal. Shirur, Dist. Pune)
7. Mr. Prabhakar B. Sonawane
Age- Adult, Occ. Business,
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Residing at Sone Sanghvi, Tal.
Shirur, Dist. Pune ...Respondents
*
Mrs. Jyoti Bajpayee a/w. Advocate for the Appellant.
Ms. Renuka Yadav
Mr.Abhaykumar Apte Advocate for Respondents.
*
CORAM : S. M. MODAK, J.
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DATE : 26 OCTOBER 2026
ORAL JUDGMENT :-
1. Heard Mrs. Bajpayee, learned advocate for the appellant- insurer
and learned advocate for the opponent Nos.1 to 6. Opponent No.7 is
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the owner of the motorcycle driven by the deceased. On 5 October
2026, I have heard learned advocate for the insurer, no one was present
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on behalf of the claimants. On 12 October 2026 Mrs. Bajpayee,
learned advocate for the appellant relied upon few judgments. Matter
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was adjourned and kept on 19 October 2026. Learned advocate for
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claimants was available on 21 October 2026. Again I have heard both
sides and also crystalized the issues. That is how today the matter is
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kept. However, when the matter is called out no one is present on
behalf of the claimants. Hence I have no choice but to decide the
appeal on the basis of arguments which are already advanced. Mr. Apte,
appeared later on.
2. The deceased Bharat Gavane expired in a vehicular accident
which took place on 2 May 2004. He was driving a Hero-Honda
motorcycle No. MH 12 XA 9515. This was owned by respondent No.7
and insured with the present appellant. The deceased was hit by one
Tata Sumo. It was a unknown vehicle. Offence is registered against him
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with Shikarapur Police Station on 11 May 2004 for the offences
punishable under section 304A, 279, 427 of IPC and under Section
304A, 279, 427 of IPC and under section 184, 144 of the Motor
Vehicles Act, 1988 (the MV Act). The identity of the offending vehicle
could not be identified and hence legal representatives of deceased
have filed a claim petition under Section 163A of the Act before the
Tribunal at Pune. Deceased was working in Ispat Profiles India Limited
and earning net salary of Rs.5,841/- p.m and as such it is more than
Rs.40,000/- p.a.
3. The claim was resisted by insurer for the reason that there is cap
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of Rs.40,000/- pa. and his salary income exceeds salary of Rs.40,000/-
p.a. claim under Section 163A of the MV Act is not maintainable.
4. On behalf of the claimants one Manda, a widow has given
evidence. She has also examined Nandkumar Rajmane who is
employee of Ispat Company. Insurer has not examined any witness.
The Tribunal has restricted the income of the deceased to Rs.40,000/-
and that is how deducted 1/3rd from Rs.40,000/- and considered the
dependency to the extent of Rs.26,667/- pa. and accordingly calculated
compensation on other heads and quantified the compensation to the
extent of Rs.4,12,005/-. The insurer and insured were asked to pay
compensation.
5. The present appeal is filed on behalf of the insurer. Already the
Tribunal has restricted the income to Rs.40,000/- p.a. So the only issue
arisen is whether the deceased can be considered to be a third party.
6. As per the provisions of Section 147 of the MV Act , third party
risk is covered. In various judgments Supreme Court has interpreted
the meaning of the third party. In this case the first party is the owner
of the vehicle/insured , second party is the appellant-insurer and third
party will be a person other than above said two persons.
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7. In order to canvas her point she relied upon the following
judgments:
1. Ningamma and Anr. vs. United India Insurance
1
Company Limited,
2. Ramkhiladi and Anr. vs. United India Insurance
2
Company and Anr.
3. Deepal Girishbhai Soni and Ors. Vs. United India
3
Insurance Company, Baroda,
8. Mr. Apte, learned advocate gone through the judgments and
according to him the deceased cannot fall in the shoes of the owner of
the vehicle/insured. With their assistance I have gone through all these
judgments.
9. It is true that in case of Ningamma (supra) motorcycle has
dashed to a bullock cart only one vehicle was involved. It was held
that claim petition under Section 163A of the Act is not maintainable
because the deceased has stepped into the shoes of the owner of the
vehicle. Whereas in the case of Ramkhiladi (supra) two motorcycles
1
(2009) 13 Supreme Court Cases 710
2
(2020) 2 Supreme Court Cases 550
3
(2004) 5 Supreme Court Cases 385
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were involved. The deceased was driver of one motorcycle having
registration No.RJ 02 SA 7811 and he has borrowed it from the owner
and FIR is registered against driver of another motorcycle bearing
registration No.RJ 29 2A 9223 Still claim petition is filed against the
owner and insurer of the motorcycle bearing No. RJ 02 SA 7811 on
which the deceased was travelling as a driver. It is argued that the
deceased was employee of the owner of that motorcycle. After
considering the evidence and the judgments, Hon’ble Supreme Court
has held that the deceased had fallen into the shoes of the owner and as
such claim petition under Section 163A of the Act is not maintainable.
Whereas the observations in Deepal (supra) are in respect whether a
cap for Rs.40,000./- p.a. is applicable under Section 163A of the Act.
10. After going through these judgments it can very well be said that
the deceased had fallen into the shoes of the owner of the motorcycle.
With their assistance I have gone through the observations in the
impugned judgment. The judgment proceeds on the line that the cap
of Rs.40,000/- is applicable however the Tribunal has not discussed
the issue whether the deceased can be a third party. In fact it is a pivotal
issue which is to be decided by the Tribunal. This issue is decided by
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the Hon’ble Supreme Court in the case of Ramkhiladi (supra) and is
binding on us and hence the Tribunal has committed fault in directing
the insurer and insured to pay compensation to the claimant. The said
finding needs to be set aside. At the same time with their assistance I
have gone through the contents of the policy which was in force from
th th nd
26 May 2003 up to 25 May 2004. Date of accident 2 May 2004 is
covered.
11. In that copy there is reference of third party premium and
compulsory personal accident to owner and driver to the extent of
Rs.1,00,000/- and premium is Rs.50/-. As such the insurer can be
asked to pay Rs.1,00,000/- towards the claimants on account of death
of the deceased. In view of that judgment needs modification. Hence
following order is passed:
ORDER
(a) The Appeal is allowed.
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(b) The Award dated 28 February 2006 passed by the
Motor Accident Claim Tribunal–Pune is modified as
follows:-
i. The appellant-insurer and respondent No.7-insured
are directed to pay amount of Rs.1 lakh along with interest
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8% p.a. from the date of filing of petition till the amount is
deposited.
ii. The Tribunal to disburse that amount to the claimants.
iii. If the amount is deposited before the Tribunal, in that
case MACT, Pune is directed to pass order for refund of
amount which is in excess of Rs.1 lakh. That direction be
given to the claimants.
iv. In case claimants have withdrawn, claimants are
directed to re-deposit the said amount before the Tribunal so
that it can be returned to the appellant after adjustment.
v. Let statutory deposit along with interest be transferred
to the Tribunal.
12. In the light of the above observations, the Appeal is disposed of.
13. Pending Applications, if any, also stand disposed of.
[S. M. MODAK, J.]
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