New India Assurance Company Ltd vs Baby Nanda Wd/O Devidas Salunke & 7 ...
2015 Latest Caselaw 201 Bom

                                                                             fa509.04

                                        1

     IN THE HIGH COURT OF JUDICATURE AT BOMBAY, 




                                                                            
                NAGPUR BENCH, NAGPUR




                                                    
                     FIRAT APPEAL NO.509 OF 2004

    New India Assurance Company Ltd.




                                                   
    Having its office at Old Cotton Market,
    Akola, Taluka and District Akola.
    Through its Divisional Manager,
    Having its office at "Udhyam"




                                           
    Building, West High Court Road,
    Shankar Nagar Chowk, Nagpur.                            ..... Appellants..
                           ig   ::  VERSUS  ::
                         
    1.  Baby Nanda Wd/o Devidas Salunke,
    Aged - Major, 
    Occupation Household.
      

    2. Kum. Jaya D/o Devidas Salunke,
    Aged about 14 years, 
   



    Occupation Student Education.

    3. Gajanan S/o Devidas Salunke,
    Aged about 10 years,





    Occupation Student Education,

    Respondent Nos.2 and 3 are minors,
    By their natural guardian - mother





    Respondent No.1.

    4. Tulshiram S/o Vithobha Salunke,
    Aged about 74 years,
    Occupation Not Known.



                                                                              .....2/-




                                                    ::: Downloaded on - 24/08/2015 23:56:41 :::
                                                                              fa509.04

                                        2

    5. Sarlabai W/o Tulshiram Salunke,




                                                                            
    Aged about 70 years,
    Occupation Household.




                                                    
    All R/o Sirsoli, Tahsil Telhara, 
    District Akola.




                                                   
    6. Anis Ahamad Karimuddin,
    Aged Major, 
    Occupation Owner of the Vehicle,
    R/o Shaukatali Chowk,




                                           
    Akot District Akola.
                         
    7. Madhukar S/o Faktuji Tayde (Deleted),
    Aged about 50 years,
    Occupation Driver,
                        
    R/o Umra, Tahsil Akola, District Akola.


    8. Vipinkumar S/o Bharatlal Pete,
      


    R/o Rajda Plots, Akot, District Akola.          ..... Respondents.
   



    ================================================================
              Shri A.J. Pophaly, Counsel for the Appellant.
              Shri R.C. Joshi, Counsel for R-6.
    ================================================================





    CORAM : A. P. BHANGALE, J.  

DATE OF RESERVING JUDGMENT : August 11, 2015 DATE OF PRONOUNCING JUDGMENT : August 21, 2015

ORAL JUDGMENT

1. By this appeal, the appellant-Insurance Company has

sought to challenge judgment and award dated 27.8.2002, passed

.....3/-

fa509.04

by learned Member of the Motor Accident Claims Tribunal, Akola,

in Motor Accident Claim Petition No.113 of 1998, whereby the

petition filed by the claimants legal representatives of deceased

Devidas Salunke; was allowed holding that the driver/owner of the

offending motor vehicle and insurance company shall jointly and

severally deposit with the Tribunal amount of Rs.2.00 Lacs towards

compensation along with interest at the rate of nine percent per

annum from the date of claim petition till realization of the

amount.

2. The facts of the case in a nut shell are stated, thus :

That deceased Devidas Salunke, by profession, was

"Cobbler" and an agricultural labourer, we well. He had gone to

attend the marriage ceremony at village Kawatha from village

Shirsoli, District Akola. On 1.6.1997 while deceased Devidas was

returning back to his village Shirsoli by a motor vehicle Matadoor

bearing Registration No.MH-28/9713, the accident occurred on

Risod-Malegaon Road, Near Jamthi Phata within the local

.....4/-

fa509.04

jurisdiction of Shripur Police Station, Sub Division, Washim due to

rash and negligent driving by the driver of the said offending motor

vehicle. The vehicle turned turtle and fell down below the bridge at

Jamthi Phata as a result of which Devidas suffered multiple

injuries and died on the spot.

3. The incident was reported to the Shirpur Police Station

and the Police had registered the crime as C.R.No.71 of 1997.

According to respondent No.6 - Anis Ahamad Karimuddin/previous

owner of the offending motor vehicle, he had transferred

Matadoor bearing Registration No.MH-28/9713 to respondent

No.8 - Vipinkumar S/o Bharatlal Pete.

4. Shri A.J. Pophaly, learned counsel for the appellant -

Insurance Company, submits that since the insured offending

goods vehicle was used for carrying the passengers to attend the

marriage, the Insurance Company is not liable to pay any

compensation as it breaches the conditions of Policy and Permit of

.....5/-

fa509.04

the vehicle. Whereas, owner of the offending motor vehicle, who

resisted the claim, submits that the Insurance Company cannot

absolve itself from indemnifying the owner of the vehicle.

5. Learned Member of the Motor Accident Claims Tribunal

found that when the fatal accident occurred on 1.6.1997 at about

03:45 am on Risod Malegaon Road, Near Jamthi Phata, Devidas

died as a result of the rash and negligent driving by the driver of

the offending motor vehicle viz. Matadoor bearing Registration

No.MH-28/9713. The offending motor vehicle previously owned by

respondent No.1 - Anis Ahamad Karimuddin was sold to

respondent No.8 - Vipinkumar Bharatlal Pete. The Tribunal, as

regards liability of the appellant - Insurance Company, held that

sum of Rs.2.00 Lacs as determined just and proper compensation

be paid by respondent Nos.2 to 4, in the claim petition, jointly and

severally together with interest at the rate of nine percent per

annum from the date of claim petition till realization of the

amount.

.....6/-

fa509.04

6. Learned Member of the Motor Accident Claims Tribunal

while making reference to the rulings in the cases of New India

Assurance Company ..vs.. Satpal Singh and others, reported

at 2000(1) All MR 346 (SC) and Ramesh Kumar ..vs.. National

Insurance Company Limited and others, reported at 2001(4)

All MR 512 (SC) held that the Insurance Company is liable to pay

the compensation to the owner of the goods, his representatives,

and also gratuitous passengers travelling in the goods vehicle

observing that such persons need to be treated as third party. It

was further held that since deceased was gratuitous passenger in

the goods vehicle, the Insurance Company is bound to pay the

compensation. Learned Member of the Tribunal also observed that

Insurance Company did not prove the breach of conditions of the

Insurance Policy and distinguished the fact of driving vehicle

without holding valid driving licence from the fact of carrying

passengers or gratuitous persons in a goods vehicle while

considering the ruling in the case of New India Assurance

.....7/-

fa509.04

Company Limited ..vs.. Kamla and others reported at (2001)

SC 342.

7. Shri Pophaly, learned counsel for the appellant -

Insurance Company, submits that the Insurance Policy does not

cover the names of the passengers in a goods vehicle. He further

submits that since the goods vehicle cannot be permitted to carry

passengers, the insurer would not liable to pay any compensation

in view of the ruling in the case of New India Assurance

Company Limited ..vs.. Asha Rani and others, reported at

(2003)2 SCC 222.

In pursuant to above submissions, learned counsel for

the respondent submits that the insurer is primarily liable to

compensate the claimant/s of the victim of the vehicular accident. It

is further submitted that if, according to the Insurance Company it

is not liable to compensate claimant/s of the victim of the vehicular

accident, the Insurance Company is at liberty to move the Tribunal

under the Motor Vehicles Act, 1988 so as to recover the amount

.....8/-

fa509.04

already paid to the claimant/s of the victim of the vehicular

accident from the owner/driver of the offending motor vehicle.

8. Having heard the above submissions made on behalf of

the rival parties and gone through the rulings cited (supra), I find

that post 1988 i.e. after the amendment of Motor Vehicles Act, 1988

as contra distinguished from the Motor Vehicles Act, 1939 the

object to compensate the victim of the motor vehicular accident

adequately to restore his/her dependents back to the position as

prior to the accident as far as possible.

9. Considering the view taken by the Motor Accident

Claims Tribunal, Akola with reference to the rulings of the Apex

Court, no interference is warranted in the judgment and award

impugned in this first appeal. Hence, the first appeal is dismissed

with costs.

JUDGE !! BRW !!

...../-