Bombay High Court
Nagpur Bench: Nagpur vs Unknown on 1 October, 2012
Bench: M.N. Gilani
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY:
NAGPUR BENCH: NAGPUR
FIRST APPEAL NO.305/2003
APPELLANT:
United India Insurance Company Limited, Branch at Akola,
through its Divisional Manager, Old Cotton Market, Akola,
Tq and Dist. Akola [Original respondent no.2 on R.A.
VERSUS
RESPONDENTS:
1] Sou Meharunisa Sk. Mehboob aged about 42 years, occ :
Household
2] Sk. Mehboob Sk. Reheman, aged about 47 years,
occupation : labour work
Respondents no.1 to 2 residents of Satkabad, behind P.S.
Telhara, tq. Telhara, District : Akola.
[original claimants on R.A.]
3] Sharad @ Pintu s/o Kishore Chopade, aged about 22 years,
r/o Indira Awas, Telhara, Tq. Telhara, dist. Akola.
4] Gopal s/o Satyanarayan Agrawal, at and post Dahigaon, Tq.
Telhara, dist. Akola
[original respondents no.1 & 2 on R.A.]
===============================================
Mr. S.N. Dhanagare, advocate for appellant
Mr. Bharat Vora, advocate for respondent no.1 & 2.
===============================================
WITH
FIRST APPEAL NO.318/2003
APPELLANT:
United India Insurance Company Limited, Branch at Akola,
through its Divisional Manager, Old Cotton Market, Akola,
tq and Dist. Akola [original respondent on.3 on R.A.]
VERSUS
RESPONDENTS:
1] Sau. Safiyabi wd/o Isaf Shah, aged about 30 years, occ :
household work
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2] Mustak Shah Isaf Shah, aged about 11 years, Minor occ :
education
3] Ashpak Shah Isaf Shaha, aged 9 years, minor, occ:
education
4] Shabiya Shaha Isaf Shaha, aged 7 years, Minor occ:
Education
5] Naushad Shaha Isaf Shaha, aged 6 years, minor, occ:
Education
6] Sakinabi wd/o Ajim Shaha, aged about 62 years, occ : Nil
Respondents no.2 to 5 being minor represented by Natural
Guardian Mother - Safiyabi wd/o Isaf Shaha - Respondent
no.1
[Original applicants on R.A.]
7] Sharad @ Pintu s/o Kishore Chopade, aged about 22 years,
r/o India Awas, Telhara, Tq Telhara, Distt. Akola
8] Gopal s/o Satyanarayan Agrawal, at and post Dahigaon Tq.
Telhara, dist. Akola.
[Sr. No. 7 & 8 original respondent no.1 & 2 on R.A.]
===============================================
Mr. S.N. Dhanagare, advocate for appellant
Mr. Bharat Vora, advocate for respondent no.1 & 2.
===============================================
CORAM: M.N. GILANI, J.
DATE: 1/10/2012
ORAL JUDGMENT.
1] Both these appeals arise out of the judgments and
awards dated 1.2.2003 passed in M.A.C.P. No.8/2001 and
M.A.C.P. 7/2001, however, arising out of same accident occurred
on 26.8.2000 involving the Matador MH 30/A 9238.
2] In M.A.C.P. No.7/2001 widow, minor children and
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mother of the deceased claimed compensation of Rs.3,50,000/-. In
M.A.C.P. 8/2001 parents of the deceased claimed compensation
of Rs.2,70,000/-. The learned Tribunal held that because of rash
and negligent driving of the offending vehicle, accident occurred.
After considering the age and income of the deceased in M.A.C.P.
No.7/2001 compensation of Rs.1,97,000/- was awarded, whereas,
in Claim Petition No.8/2001, compensation of Rs.84,200/- was
awarded.
3] Both these appeals have been filed by the insurer on
the ground that there was breach of terms of insurance policy. Mr.
Dhanagare, learned counsel appearing for the appellant contended
that matador - the offending vehicle was a goods carriage vehicle,
as such deceased in both the cases were not covered under the
insurance policy.
4] In Claim Petition No.7/2001 evidence was given to
the effect that the deceased was working as a labourer and on the
day of incident, he had gone to load bananas in the ill-fated
vehicle. In the cross-examination the witness again reiterated that
deceased was doing labour work mainly of loading bananas in the
truck.
5] In Claim Petition No.8/2001 the mother of the
deceased entered the witness box and deposed that on the date of
accident deceased had worked as labourer on the offending
vehicle. Although, she has been cross-examined at length no
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suggestion was put to her that deceased was not working as a
coolie on the offending vehicle. On the contrary the witness
reiterated that deceased was working as labourer/ coolie on the
truck carrying bananas. This being state of evidence in both the
petitions, the Tribunal was justified in holding that the deceased
was travelling in an offending vehicle in the capacity of coolie /
labourers.
6] On behalf of the appellants - Madhukar Borkar was
examined. He produced on record the policy of insurance. In
cross-examination he admitted that liability of insurance company
is unlimited subject to conditions in the policy. Exhibit 47 is the
policy. It shows that the liability of fair paying passengers and
liability towards the person employed in connection with the
operation and / or loading - unloading of the vehicle, was also
covered.
7] The learned Tribunal while referring to the evidence
of Madhukar Borkar and after considering the terms and
conditions of the policy observed thus:
"However, in cross-examination he is admitting
that as per the policy, the risk of Insurance
Company is unlimited and even labourers and
collies are covered by the Insurance policy as per
the conditions of policy, but added that such
persons are covered, if the vehicle is used in the
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city area. However, during arguments, no such
clause in the insurance policy restricting the use of
vehicle in the city area is pointed out to me nor I
could lay my hands on it in the insurance policy as
well as its terms and conditions filed at Ex-47. On
the contrary, bare perusal of insurance policy shows
that apart from premium of Rs.2597/- on 'own
damage basis'. The owner of vehicle i.e. respondent
no.2 had also paid additional premium of Rs.3042/-
for covering the risk of non fare paying passengers,
for passengers employed in connection with
operation and / or loading unloading of motor
vehicle etc. The conditions in the insurance policy
and particularly IMT 13 and IMT 14 reveal
covering of the risk of Charterer or the
representative of Charterer of the truck, any other
person not being carried for hire or reward and any
other person directly connected with the journey
etc. In the present case, the deceased along with
others was travelling in that vehicle for loading
Bananas in that goods carriage. Hence the
Insurance company can not be absolved from the
liability to pay the compensation to claimants."
8] Above conclusion rendered by the Tribunal is supported by
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the material placed on record. I therefore, find no merit in these
appeals.
They are dismissed accordingly with no order as to costs.
JUDGE
SMP.
