FUTURE GENERALI INDIA INS. CO. Vs. SANTOSHI

JUDGEMENT

(1.) This common order shall govern disposal of M.A.No.732 of 2018 (Future Generali India Ins. co. Vs. Smt. Santoshi and Others) and M.A.No.1566 of 2018 (Sabir & Shriman Vs. Future General Insurance Co.Ltd & Others) filed under Sec. 173(1)/173 of the Motor Vehicle Act, arising out of common award dtd. 30/11/2017 passed by 1st Additional Motor Accident Claims Tribunal, Lakhnadaun, District-Seoni in MACC No.49/2014.

(2.) M.A.No.732/2018 has been filed by Insurance Company, whereas, M.A.No.1566/2018 has been filed by owner/driver of offending vehicle. Both these appeals have been filed for setting aside award/exoneration from liability to pay the compensation/reduction of compensation.

(3.) Learned counsel for the appellant Insurance company, after referring to impugned award as well as relying upon Chairman, Rajasthan State Road Transport Corporation and Others Vs. Santosh and Others (2013) 7 SCC 94, submits that in the instant case, offending vehicle does come within the definition of Motor Vehicle as defined in Sec. 2(28) of Motor Vehicle Act. Further, after referring to para-8 of New India Assurance Company Limited Vs. Balu Banjara & Others, 2008 (2) MPHT 252, it is submitted that Principle laid down in Balu Banjara (Supra) does not apply to the facts of the case as in Balu Banjara, J.C. machine was having four wheels, whereas in the instant case, offending vehicle is a chain mounted caterpillar machine. It is also urged that in view of Ss. 165 and 166 of the Motor Vehicles Act, claim petition under Sec. 166 of Motor Vehicles Act (hereinafter referred to as "Act") is maintainable only when accident occurs from use of motor vehicle and in the instant case, offending vehicle is not "motor vehicle", it is a chain mounted caterpillar vehicle. Therefore, respondent claimant's claim under Sec. 166 of Act is not maintainable.