1 fa67.07
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
FIRST APPEAL NO.67 OF 2007
United India Insurance Company,
Wardha Branch, through its Regional
Manager, Nagpur Regional Office,
Shankar Nagar Square, Nagpur. ... Appellant
- Versus -
1) Mrs. Draupada w/o Shankar Rathod,
aged about 25 years, occupation :
labourer,
2) Shankar s/o Nathu Rathod, aged
about 30 years, occupation : labourer,
both r/o Hivalni, P.O. Adgaon,
Tahsil Pusad, District Yavatmal
(Original Petitioners).
3) Manoj @ Mahindra s/o Punjab Yawale
(deleted).
4) Shri Bhaurao s/o Shankar Balsurat, since
deceased, through legal representatives -
(a) Smt. Sumati wd/o Bhaurao Balsaraf,
aged 58 years,
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(b) Shri Prashant s/o Bhaurao Balsaraf,
aged 36 years,
(c) Shri Nitin s/o Bhaurao Balsaraf,
aged 34 years,
All 4(a) to 4(c) r/o Pratap Nagar,
near Shitala Mata Mandir, old
R.T.O. Office, Wardha-442001. ... Respondents
-----------------
Shri B. Lahiri, Advocate for appellant.
Shri Bharat Vora, Advocate for respondent nos.1 and 2.
------------------
Date of reserving the judgment : 22/11/2017
Date of pronouncing the judgment : 12/12/2017
CORAM : P.N. DESHMUKH, J.
DATED : DECEMBER 12, 2017
JUDGMENT :
Heard Shri Lahiri, learned Counsel for appellant and Shri Vora, learned Counsel for respondent nos.1 and 2.
2) This appeal takes exception to the judgment and award dated 21/7/2004 passed by the Motor Accident Claims Tribunal, Wardha in Motor Accident Claim Petition ::: Uploaded on - 14/12/2017 ::: Downloaded on - 15/12/2017 01:54:05 ::: 3 fa67.07 No.150/2001 whereby respondent nos.1 and 2 are granted amount of Rs.90,000/- as compensation inclusive of no fault liability to be payable by appellant and owner of vehicle jointly and severally.
3) Facts giving rise to the appeal can be narrated as follows :
Respondent nos.1 and 2/claimants are parents of deceased Devkrushna, who met with accident on 3/3/2001 at the age of three years in a field involving tractor bearing Registration No. MH 32/A 5650 owned by respondent no.4, as he came to be crushed under said vehicle after having fallen down from it. Respondent nos.1 and 2 have thus filed claim petition for grant of compensation of Rs.1,00,000/-, which was partially allowed by learned Tribunal awarding Rs.90,000/- with interest at the rate of 9% per annum.
4) Before Tribunal, respondent no.4/owner of the vehicle filed written statement (Exh.14) and did not dispute the ::: Uploaded on - 14/12/2017 ::: Downloaded on - 15/12/2017 01:54:05 ::: 4 fa67.07 relation of petitioners with deceased nor age of deceased, however, denied that accident had occurred due to negligence of tractor Driver. According to the case of respondent no.4, accident took place due to negligence of petitioners, who had negligently kept their small child on the tractor without taking proper care when tractor was likely to be taken to field by its Driver and as such, while tractor moved, the boy fell down and met with accident wherein he suffered fatal injury and succumbed to it while on way to Hospital. Thus, it is the case of owner of vehicle that no liability can be fastened upon him as Driver of the vehicle is in no way concerned with the cause of accident.
5) Appellant/original respondent no.3/Insurer resisted the claim petition on the ground of breach of policy condition contending that tractor Driver was not possessing a valid driving licence and that no liability can be fastened on it in view of the fact that deceased was a gratuitous passenger and as such, was not covered under the policy, which was limited only for its use ::: Uploaded on - 14/12/2017 ::: Downloaded on - 15/12/2017 01:54:05 ::: 5 fa67.07 for agricultural purpose. Respondent no.1, father of deceased, examined himself and placed on record documents.
6) The learned Tribunal on considering the evidence and documents on record held that deceased died as a result of accident involving tractor on 3/3/2001 due to rash and negligent driving by its Driver and claimants are entitled for compensation of Rs.90,000/- along with interest at the rate of 9% per annum from the date of claim petition to be payable by appellant and owner of tractor jointly and severally. Hence, this appeal by original respondent no.3.
7) In view of facts involved in the appeal as aforesaid, point which requires consideration is : if deceased boy occupying tractor was unauthorised passenger as per policy condition, whether appellant can be held responsible for grant of compensation or direction can be issued to appellant to pay the amount of compensation to claimants first and then to recover the same from owner of tractor ?
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6 fa67.07 8) Shri Lahiri, learned Counsel for appellant, has
submitted that deceased boy should be treated as unauthorised and gratuitous passenger in view of the admitted fact that he was traveling in a tractor, which is a goods vehicle and essentially not meant for public transport and thus, was not covered by the policy of insurance (Exh.27). The insurer, however, has not disputed that the tractor involved in the present case was duly insured vide cover note No.62970 dated 20/11/2000 from 20/11/2000 to 19/11/2001 on the date of accident, which had taken place on 3/1/2001 and as such, was insured. Thus, the only contention raised on behalf of appellant is that since deceased was an authorised passenger traveling in a goods vehicle, he was certainly not fare paying passenger and as such, no liability can be saddled upon the insurer inasmuch as even the policy (Exh.27) establishes that Driver of the tractor alone is covered by the policy.
9) Though in the written statement appellant had also
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raised ground of breach of policy condition stating that on the day of accident, tractor Driver was not possessing a valid driving licence, claimants have placed on record at Exh. 28 driving licence wherefrom it is established that on the day of accident, tractor Driver was issued with valid licence entitling him to drive light motor vehicle (tractor). There is no other evidence brought on record on this aspect. It is, therefore, found that on the day of accident, tractor Driver was possessing a valid driving licence and as such, there is no breach of policy condition on this ground.
10) Shri Lahiri, learned Counsel for appellant, during the course of arguments has relied upon judgments of Hon'ble Apex Court in the case of -
(I) Oriental Insurance Co. Ltd. vs. Devireddy Konda Reddy and others (2003 ACJ 468) wherein it is held that no liability can be fastened upon Insurance Company when passenger is traveling gratuitously or unauthorisedly in a goods vehicle involved in the accident.
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8 fa67.07 (II) Oriental Insurance Company Ltd. vs. Brij Mohan
and others (2007 (3) T.A.C. 20) wherein trolley attached to the tractor involved in the accident was not insured in which labourer engaged for digging earth to be carried in a tractor/ trolley for manufacture of brick kiln was traveling and as such, was not held entitled for compensation from insured for the injuries sustained by him and relying on the decision in New India Assurance Co. Ltd. vs. Asha Rani and others {(2003) 2 SCC 223} and on exercising its extraordinary jurisdiction, directed Insurance Company to first satisfy award and then realise the amount from the owner of tractor and trolley by further observing that Insurance Company would not be required to initiate any separate proceedings for recovery of amount.
In view of submissions as aforesaid, thus it is contended on behalf of appellant that appellant Insurance Company be exonerated from paying compensation.
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11) In the backdrop of facts in the appeal, it is found
necessary to refer to the case of Nati
onal Insurance Co. Ltd.
vs. Baljit Kaur and others {(2004) 2 SCC 1) where in para 21 of its judgment it is held by Hon'ble Apex Court as follows :
"21. The upshot of the aforementioned discussions is that instead and in place of the insurer, the owner of the vehicle shall be liable to satisfy the decree. The question, however, would be as to whether keeping in view the fact that the law was not clear so long such a direction would be fair and equitable. We do not think so. We, therefore, clarify the legal position which shall have prospective effect. The Tribunal as also the High Court had proceeded in terms of the decision of this Court in Satpal Singh. The said decision has been overruled only in Asha Rani. We, therefore, are of the opinion that the interest of justice will be subserved if the appellant herein is directed to satisfy the award amount in favour of the claimant, if not already satisfied and recover the same from the owner of the vehicle. For the purpose of such recovery, it would not be necessary for the insurer to file a separate suit but it may initiate a proceeding before the executing Court as if the dispute between the insurer and the owner was the subject matter of determination before the Tribunal and the issue is decided against the owner ::: Uploaded on - 14/12/2017 ::: Downloaded on - 15/12/2017 01:54:05 ::: 10 fa67.07 and in favour of the insurer. We have issued the aforementioned directions having regard to the scope and purport of Section 168 of the Motor Vehicles Act, 1988, in terms whereof, it is not only entitled to determine the amount of claim as put forth by the claimant for recovery thereof from the insurer, owner or driver of the vehicle jointly or severally but also the dispute between the insurer on the one hand and the owner or driver of the vehicle owned in the accident inasmuch as can be resolved by the Tribunal in such a proceeding."
12) From the above pronouncement, it is thus noted that law laid down is that Insurance Company would first satisfy the award and then recover the amount from owner of the vehicle by filing execution application before the Court without requiring to file separate suit. In that view of the matter, though in that case Insurance Company was not held liable to the suit claim, it was required to first satisfy the suit claim and then recover the amount from the owner of vehicle.
13) In view of the fact that at the time of accident deceased boy was admittedly three years old, claimants are in ::: Uploaded on - 14/12/2017 ::: Downloaded on - 15/12/2017 01:54:05 ::: 11 fa67.07 any way entitled to amount of Rs.50,000/- on no fault liability. The amount of compensation awarded is to the extent of Rs.75,000/-, Rs.10,000/- for loss of love and affection and Rs.5000/- towards funeral charges and accordingly claimants are held entitled for just compensation of Rs.90,000/-. Considering the facts as revealed from the impugned award that the child had not entered the vehicle, but got hit by the tractor and fell down and met with an accident, he cannot be said to be a gratuitous passenger traveling unauthorisedly but can be termed as a third party. Under Clause (g) of Section 145 of the Motor Vehicles Act, 1988 "third party" is defined and includes the Government. The definition is inclusive definition and is capable of wider import and thus, covers persons between whom there is no privity of contract. In that view of the matter and since already stated above, though it is the case of appellant that Driver of offending tractor was not possessing effective driving licence and in spite of claimants placing on record driving licence of tractor Driver establishing him to possess valid driving licence on the day of accident, ::: Uploaded on - 14/12/2017 ::: Downloaded on - 15/12/2017 01:54:05 ::: 12 fa67.07 since no steps are taken by appellant to dislodge such evidence, petition cannot be dismissed for breach of policy condition. Similarly, having considered the age of minor boy, it is only the tractor Driver, who from the evidence of petitioner no.1 is found negligent in not taking due care of minor child while he was in the tractor. In that view of the matter and since it is admitted that the tractor was duly insured on the day of accident, claimants are held to be entitled for the compensation as awarded by the learned Tribunal, which even otherwise does not appear to be on higher side. Thus, the contention of appellant that it is not liable to make payment of compensation cannot be accepted.
14) Even otherwise, it is worth to mention that the Legislature has insisted and made it incumbent on the user of a motor vehicle to be armed with an insurance policy covering third party risks, which is in conformity with the provisions enacted by the Legislature. It is so provided in order to ensure that the injured victims of automobile accidents or the ::: Uploaded on - 14/12/2017 ::: Downloaded on - 15/12/2017 01:54:05 ::: 13 fa67.07 dependents of the victims of fatal accidents are really compensated in terms of money and not in terms of promise. Such a benign provision enacted by the Legislature having regard to the fact that in the modern age the use of motor vehicles notwithstanding the attendant hazards, has become an inescapable fact of life, has to be interpreted in a meaningful manner, which serves rather than defeats the purpose of the legislation. The provision has, therefore, to be interpreted in the twilight of the aforesaid perspective.
15) Having considered above facts and circumstances, there appears no substance in the appeal and same is, therefore, dismissed. No order as to costs.
JUDGE khj ::: Uploaded on - 14/12/2017 ::: Downloaded on - 15/12/2017 01:54:05 :::