IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
FIRST APPEAL NO. 704 OF 2006
The New India Assurance Company Ltd.,
through the Regional Manager,
Regional Office,the New India Assurance
Company Ltd., Dr. Baba Saheb Ambedkar Bhawan,
M.E.C.L.Building, Seminary Hills,
Nagpur-440 006.
APPELLANT
Versus
(1) Reshmabai w/o Madan Gawai,
Aged about 46 years, Occu: Household.
(2) Madan Kadatu Gawai,
Aged about 56 years, Occu: Agriculturist
And owner of the Tractor and Trolley,
Both R/o Jawalkhed, Tq. Deulgaon Raja,
Dist. Buldhana.
RESPONDENT
Shri A.J. Pophaly, Counsel for Appellant.
Shri A.M. Deo, Counsel for Respondents.
CORAM :- DR. SMT.SHALINI PHANSALKAR-JOSHI,J
DATE :- 15TH JUNE 2017
ORAL JUDGMENT
1. In the Motor Accident Claims Petition No.
142/2000, the owner and the driver of the offending
vehicle, alongwith the appellant Insurance Company, are
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held jointly and severally, liable to pay the
compensation of Rs. 1,57,000/- with interest at the
rate of 6% per annum from the date of filing of claim
petition till its realization. This order of the Motor
Accident Claim Tribunal Buldhana passed on 20th April
2006 is the subject matter of challenge, in this
appeal, which is preferred by the Insurance Company,
seeking exoneration from the liability to pay the
compensation.
2. Factsof the appeal are to the effect that the deceased Jitendra was the son of the Respondent No. 1 and respondent no. 2. At the time of accident he was sitting in the Tractor, which was owned by Respondent no.2. Due to the rash and negligent driving of the said tractor, deceased Jitendra lost balance; fell down from the tractor and succumbed to the injuries. Respondent No. 1 who is the mother of the deceased, approached the learned Motor Accident Claim Tribunal seeking compensation of Rs. 1,00,000/- from appellant the insurance and respondent no.2 who was her husband and the owner of the truck.
Appellant Insurance Company resisted the said petition by contending inter-alia that the tractor was insured for Act only policy. Moreover the tractor was having the capacity or permit of only one person. Hence ::: Uploaded on - 22/06/2017 ::: Downloaded on - 23/06/2017 00:04:38 ::: -3- the liability for the death of the deceased who was sitting therein, in addition to the driver, is not covered therein. Insurance company is therefore not liable to pay any amount of compensation and it should be therefore exonerated from the said liability.
3. Learned Tribunal however, held that at the relevant time tractor was being used for agricultural purpose and hence there was no breach of the Insurance Policy. Learned tribunal therefore held insurance company also liable, jointly and severally, alongwith Respondent No.2, the owner of the tractor, to pay the compensation amount of Rs. 1,57,500/- to the claimant, Respondent No.1, the mother of the deceased.
4. The only point which is raised for my determination in this appeal, is whether the risk of the deceased is covered by the insurance policy, in respect of the said vehicle ?.
5. It is deposed by the claimant that deceased Jitendra working as cleaner on tractor trolly of the Respondent No.2. Therefore it is admitted fact that he was not driver of the said tractor. The registration certificate of the said tractor (Exh.34) goes to show that it was having the sitting capacity of ::: Uploaded on - 22/06/2017 ::: Downloaded on - 23/06/2017 00:04:38 ::: -4- only one person, including the Driver. The cover note of the Insurance Policy (Exh.33) also goes to show that sitting capacity of the vehicle was only one passenger and it was only Act Risk Policy . In such situation, it cannot be said that risk of the deceased was covered by the insurance policy.
The law on this aspect, is fairly well settled and laid down in the various decisions of the Apex Court. One of such decisions relied upon by learned counsel for the appellant is that of United India Insurance company V/s Serjerao and others [I (2009) ACC 434 (SC)] wherein placing reliance its decision in Oriental Insurance Company V/s Brijmohan and others [2007 (7) 753] it was held by Hon ble Supreme Court that, since the tractor is a goods carrier, the insurance company can not be held statutorily liable to pay compensation for the death of any gratuitous passenger sitting therein. It was held that claimants would be entitled to get compensation from the vehicle owner alone and the Tribunal has committed an error in holding appellant Insurance company liable to make the payment of compensation.
In the present case therefore, the owner of the vehicle respondent no.2, who is father of the deceased, alone can be held liable to compensate his ::: Uploaded on - 22/06/2017 ::: Downloaded on - 23/06/2017 00:04:39 ::: -5- wife, Respondent no.1, the claimant. It is pertinent to note that in this case, the driver of the tractor was also not joined in the petition before the Tribunal or in this appeal. The owner is the husband of the claimant and the father of the deceased. Hence the order against the respondent no.2, the owner, who has not challenged need not be disturbed.
In the result Appeal is Allowed.
6. The judgment and order passed by the Tribunal as against the appellant insurance company is hereby quashed and set aside. Appellant is absolved from the liability of paying compensation amount to Respondent No.1.
7. As appellant insurance company has already deposited entire amount in this Court, the same is be permitted to be withdrawn with interest, if any accrued thereon.
Appeal stands disposed off in the above terms.
JUDGE Nandurkar ::: Uploaded on - 22/06/2017 ::: Downloaded on - 23/06/2017 00:04:39 :::