Bombay High Court
Gosuji S/O Waktuji Dongarwar & Anr vs Lalita Wd/O Bhaudas Goswami & Ors on 13 August, 2015
Bench: A.P. Bhangale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
FIRST APPEAL NO.267 OF 2005
1. Gosuji s/o. Waktuji Dongarwar,
Aged adult, Occ. Agrilst.
2. Bhagwat s/o. Gosuji Dongarwar,
Aged Adult, Occ. Agrilst.
Appellant Nos. 1 and 2 are the
resident of Village Rengepar, Tq.
Sadak Arjuni, District Gondia. .......... APPELLANTS
// VERSUS //
1. Smt. Lalita wd/o. Bhaudas Goswami,
Aged Adult, Occ. Not known.
2. Master Ajay s/o. Bhanudas Goswami,
Aged 9 years, Student.
3. Miss Pallavi d/o. Bhaudas Goswami,
Aged 5 years, Student.
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Respondent Nos. 2 and 3 being
minors are represented by their
mother i.e. respondent no.1.
4. Kisan s/o. Juga Goswami,
Aged Adult, Occ. Not known.
Respondent Nos. 1 to 4 are the
residents of village Shenda, Tq.
Sadak Arjuni, Distt. Gondia.
5. The National Insurance Company
Ltd., Shree Talkies Road, Gondia........ RESPONDENTS
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Mr.R.D.Bhuibhar, Adv. for the Appellants.
Mr.N.H.Shams, Adv. for Respondent No.5.
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Date of reserving the Judgment : 27.7.2015.
Date of pronouncing the Judgment : 13.8.2015.
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CORAM : A.P.BHANGALE, J.
JUDGMENT :
1. The Appeal questions validity and legality of the
Judgment and Order dt.29-1-2005 passed by Motor
Accident Claims Tribunal, Bhandara in M.A.C.P. No.154 of
2002. Compensation was claimed in the sum of Rs. two
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Lakhs. It was ordered to be paid by respondents nos.1 to 4
(appellants herein) together with interest at the rate of
Rs.9% p.a. from the date of the petition till realisation
inclusive of the 'no fault liability' under Section 140 of the
Motor Vehicles Act, 1988. Respondent no.5/Insurance
company was exonerated.
2. Facts briefly stated are as under :-
On 26-4-2002, at about 1.30 to 2.00 p.m., Bhanudas
Kisan Goswami, aged about 34 years, a labourer by
occupation resident of village Shenda, Tahasil Sadak Arjuni,
District Gondia started on Tractor bearing registration no.
MH-35/5666 attached with Trolley from Village Surtoli to
Shenda. It was driven by Bhagwat Gosuji Dongarwar rashly
and negligently in a high speed within limits of village
Shenda. Bhanudas fell down from tractor trolley and died on
the spot. Insurer/Company had denied it's liability to pay
compensation contending that the deceased was not a
labourer at the relevant time and that the driver of the tractor
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trolley was not holding valid driving license. It was
contended that Toliram Kapgate was driving the tractor
-trolley from Surtoli to Pandharwani with 15 to 20 gratuitous
passengers boarded without permission of the driver.
Deceased had taken a jump from the trolley, fell on the road,
sustained brain haemorrhage and died on the spot and that it
was not the case of driver's negligence. Alternatively, it is
submitted that the Insurer/Company is liable to pay the sum
of compensation. National Insurance Company resisted the
claim and denied liability to compensate. It is contended that
the driver of the Tractor-trolley was not having valid driving
licence at the time of the accident.
3. The Tribunal believed the evidence of Dipak Shankarrao
Bante (PW-2) at Exh.44, who deposed that the Tractor was
driven in a high speed on an uneven road resulting in
Bhanudas falling down from the tractor-trolley. The witness
resident of the spot hardly 100 meter away from the accident
spot was found natural and probable and his evidence was
consistent with the Morgue intimation/report (Exh.36).
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Evidence of Respondent no.3 (DW-2) was found
untrustworthy and post-occurrence version in respect of
Bhanudas jumping down from the Tractor trolley as he
admitted in his examination-in-chief shows that his attention
was attracted when the inmates raised the cries. The Tribunal
found that victim Bhanudas died in vehicular accident due to
rash and negligent driving of the tractor-trolley motor vehicle
bearing registration no. Mh-35/B-8842 and trolley bearing
registration no. MH-35/5666 and compensation was awarded
in the sum of Rs. Two Lakhs together with 9% interest from
the date of the claim application till realisation.
4. As to the quantum of compensation, income of
Bhanudas was assumed as Rs.1500/- per month = Rs
18,000/- per year, deducting one-third amount towards self-
expenses, loss of dependency was Rs.12,000/- per year x 17
as multiplier = Rs.2,04,000/- for the dependents as he was a
labourer by occupation. The Tribunal awarded funeral and
transporting expenses in the sum of Rs.4000/- and loss of
consortium as Rs.5000/- and towards loss of affection to
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claimants in the sum of Rs 4000/-. Thus, total sum of
Rs.2,17,000/- was awarded as compensation together with
interest at the rate of Rs 9% per annum.
5. Driver as well as owner of the offending motor vehicle
Tractor-Trolley were held jointly and severally liable to
compensate the claimants in view of vicarious liability of
owner. Though the offending motor vehicle were insured as
per Exh.43/policy, it did not cover the risk to Bhanudas, who
was one of the person from the marriage party travelling by
the Tractor-Trolley at the time of the accident. When several
persons are allowed to board the Tractor-Trolley and travel
as a marriage party, the risk is that of the owner and driver of
the offending motor vehicle to compensate the victim if the
accident occurs. Insurer in such case of unlawful user is not
liable for an act done in clear breach of the Insurance policy-
contract.
6. No grievance was made about the quantum of
compensation nor was any cross objection raised by cross-
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appeal on behalf of the claimants-dependents of the
victim. Impugned Judgment and award is sustainable. No
interference is warranted in the impugned Judgment and
Award. Hence the appeal is dismissed with costs.
JUDGE
jaiswal
