Bombay High Court
Begumbai Ramdas Torde And Ors vs Oriental Insurance Co.Ltd And Ors on 4 April, 2016
Bench: V.K. Jadhav
1 FA 400 OF 2002.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 400 OF 2002
1. Begumbai w/o Ramdas Torde,
age 48 years, Occ. Household,
2. Balu Ramdas Torde,
age 24 years, Occ. Labour
3. Bhau Ramdas Torde,
age 21 yrs, Occ. Labour,
All r/o Kamathi,
Tq. Shrigonda Dist. Ahmednagar. ..Appellants..
(orig. applicants)
VERSUS
1. The Oriental Insurance Co. Ltd.,
D.O.No.I, Ansal Industrial Estate,
G.T. Kamal Road, Azadpur, Delhi-33.
2. Bhagwansingh Ropsingh,
age 41 years, Occ. Service,
R/o D.B.T.R. Transport,
New Delhi No.7. ..Deleted..
3. Satnamsingh Jogindarsingh,
age major, Occ. Business, R.R.
New Delhi No.7. ..Respondents..
(Res No.1 orig resp
No.1. And Resp 2,3 Orig
resp No.1 and 2)
...
Advocate for Appellants : Mr A M Gholap
Advocate for Respondent 1 : Mr A S Deshpande
R/3 Dismissed, R/2 Deleted.
...
::: Uploaded on - 05/04/2016 ::: Downloaded on - 29/07/2016 20:59:01 :::
2 FA 400 OF 2002.odt
...
CORAM : V.K. JADHAV, J.
Dated: April 04, 2016
...
ORAL JUDGMENT :-
1. Being aggrieved by the Judgment and Award dated
19.6.2001, passed by the Chairman Motor Accident
Claims Tribunal, Ahmednagar, the original claimants
have preferred this appeal to the extent that the
Tribunal has exonerated the respondent-insurer from
the liability to pay the compensation.
2. Brief facts giving rise to the present appeal are as
under :-
a] Vehicular accident had taken place on 19.1.1992
within the limits of village Guha on Ahmednagar-
Manmad Road. On 17.1.1992 day, deceased Ramdas
alongwith other business man was returning to his
village Kamathi from Sandawn. He was carrying with
him luggage of boxes of eggs and other goods. He
loaded said luggage in a truck bearing registration No.
DIG-7297 at Sandawn. On 19.1.1992, the truck was
running by Manmad-Ahmednagar Road when reached
3 FA 400 OF 2002.odt
within the limits of village Guha, the truck dashed
against a railing of bridge and fell down below the
bridge. At the time of accident, driver of the truck was
driving it in a rash and negligent manner and therefore,
the accident had taken place. In consequence of which,
deceased Ramdas and his colleague were seriously
injured. Deceased Ramdas was thereafter shifted Civil
Hospital, at Ahmednagar, however, on 20.1.1992 he
succumbed to the injuries in the hospital. The legal
representatives of deceased Ramdas preferred claim
petition bearing No.581 of 1992 before the Motor
Accident Claims Tribunal, Ahmednagar.
b] Though, respondents no.1 and 2 i.e. the owner and
driver of the vehicle involved in the accident has not
contested the claim, respondent no.3-the Insurer
resisted the claim petition by filing written statement.
Respondent No.3-the Insurer has taken a specific
defence that, deceased alongwith one more person was
travelling in the vehicle as a fare paying passenger and
thus, there is breach of conditions of the insurance
policy. Learned Chairman of the Tribunal, by its
4 FA 400 OF 2002.odt
impugned Judgment and Award dated 19.6.2001 partly
allowed the claim petition and thereby directed
respondent no.2-owner to pay the compensation of
Rs.2.00 lacs (inclusive of 'NFL' amount) with interest to
the claimant. Claim petition as against respondent
no.3-Insurer was dismissed. Hence, this appeal to the
extent of dismissal of claim petition as against
respondent no.3 Insurer.
3. Learned counsel for the appellant submits that,
deceased Ramdas was travelling in the goods vehicle
alongwith his goods. The learned counsel submits that,
the Tribunal has not considered the same, but
considered the defence raised by respondent no.3-
Insurer that deceased Ramdas was travelling in a goods
vehicle as a fare paying passenger on the basis of
certain admissions given by the claimant. Learned
counsel submits that, claimant no.1 has deposed before
the tribunal that her husband deceased Ramdas was
bringing two wheat bags, basket of hens and trays of
eggs in the said truck. Learned counsel submits that,
she has no where admitted in her cross examination
5 FA 400 OF 2002.odt
that her husband deceased Ramdas was travelling in a
goods vehicle by paying fare. Learned counsel submits
that, even in the spot panchnama, which is duly
exhibited before the Tribunal, it is specifically
mentioned that after the accident some wheat bags and
tray of eggs found in scattered condition. Learned
counsel submits that, there is no basis to draw a
conclusion that deceased was travelling in a goods
vehicle as fare paying passenger. Learned counsel
submits that, the Tribunal has thus erroneously
exonerated the respondent-insurer from the liability to
pay the compensation.
4. Learned counsel for respondent no.1-Insurer
submits that, even assuming that the respondent
Insurer had failed to prove that deceased Ramdas was
travelling in a goods truck as a fare paying passenger,
the risk of the owner of the goods, travelling in the
goods vehicle was not covered prior to the amendment
to Section 147 of the Motor Vehicles Act. Learned
counsel submits that, said amendment to Section 147
(1) (i) was carried out with effect from 14.11.1994. The
6 FA 400 OF 2002.odt
learned counsel submits that, the Supreme Court in a
case of New India Assurance Co. Ltd., Vs. Asha Rani
and others, Reported in AIR 2003 Supreme Court 607
(1) held that, the view taken in a case of New India
Assurance Company Limited Vs. Satpal Singh and
others reported in AIR 2000 Supreme Court 235 (1),
is not a good law. Learned counsel further submits
that, in a case of Smt. Mallawwa Vs. Oriental Insurance
Co. Ltd., reported in AIR 1999 Supreme Court 589,
considered the provisions of Section 95 (1) proviso (ii) as
it was prior to the amendment, the Supreme Court held
that, if there is a death of the owner of the goods
carrying in goods vehicle, the insurer is not liable to pay
the compensation.
5. It appears from the impugned judgment and
Award that the Tribunal has not appreciated the oral as
well as documentary evidence in its proper perspective.
The claimant no.1 has deposed that her husband was
travelling in a goods vehicle with his goods and even the
contents of the panchnama supports the case of the
claimants to that extent. It also appears that the
7 FA 400 OF 2002.odt
claimant has not admitted in her cross examination that
her husband deceased Ramdas was travelling in a goods
vehicle as a fare paying passenger. However, even
though, respondent-insurer has failed to prove its
defence, the legal position would remain as it is.
6. As per the pleadings of the claimant, deceased
Ramdas was travelling in a goods vehicle alongwith his
goods. Said accident had taken place prior to
14.11.1994. The claimant has also deposed before the
Court in terms of her pleadings that her husband
deceased Ramdas was travelling in goods vehicle
alongwith his goods. Prior to 14.11.1994 in view of the
provisions of Section 147 of the Motor Vehicles Act, the
death of the owner of the goods travelling in a goods
vehicle was not covered and the Insurer was not liable to
pay the compensation. The amendment with effect from
14.11.1994 in clause (i) of Section 1 of Section 147 death
of the owner is thereafter covered if he is travelling
alongwith his goods in goods carrying vehicle.
7. In case New India Assurance Vs. Sat Pal Singh
8 FA 400 OF 2002.odt
(supra) in paragraph No.11 of the Judgment Supreme
Court has observed as under :-
"11. The result is that under the new Act an
insurance policy covering third party risk is
not required to exclude gratuitous passengers
in a vehicle, no matter that the vehicle is of
any type or class. Hence, the decisions
rendered under the old Act vis-a-vis
gratuitous passengers are of no avail while
considering the liability of the insurance
company in respect of any accident which
occurred or would occur after the new Act
came into force."
8. In a case New India Assurance Company Vs. Asha
Rani (supra), relied upon by the learned counsel for the
insurer, the Supreme Court has overruled the decision
rendered in Satpal Sing's case (supra) by the
observations made in paragraph No.29 of the Judgment.
Paragraph No.29 of the Judgment, reads thus :-
"29. We may consider the matter for another
angle. Section 149 (2) of the 1988 Act enables
the insurers to raise defences against the
claim of the claimants. In terms of Clause © of
sub-section (2) of Section 149 of the Act, one of
the defences which is available to the insurer
is that the vehicle in question has been used
9 FA 400 OF 2002.odt
for a purpose not allowed by the permit under
which the vehicle was used. Such a statutory
defence available to the insurer would be
obliterated in view of the decision of this Court
in Satpal Singh's case (supra).
9. In view of the above legal position, though the
learned Chairman of the Tribunal has not correctly
appreciated the evidence on record about the status of
deceased Ramdas while travelling in a goods vehicle, the
respondent-insurer cannot be held liable to pay the
compensation. In view of this, no interference is called
for. Hence, following order is passed.
O R D E R
I. First Appeal is hereby dismissed.
II. In the circumstances, there shall be no order
as to costs.
sd/-
( V.K. JADHAV, J. )
....
aaa/-
