Bombay High Court
The Reliance General Insurance ... vs Savita [email protected] Jadhav ... on 16 April, 2016
Bench: P.R. Bora
1 FA NO.1044 of 2013
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO.1044 OF 2013
The Reliance General Insurance Company,
Through It's Manager,
C-9-10, 2nd Floor,
aurangabad Business Center,
Adalat Road, Aurangabad.
...APPELLANTS
(Org. Resp. No.3)
VERSUS
1. Savita Wd/o. Vishal @ Pandurang Jadhav,
2.
Age : 25 years, Occu: Household.
Nandini Vishal @ Pandurrang Jadhav,
Age : 3 years, Occ: Nil,
Under Guardianship of Respdt. No.1 mother,
Both R/o. Kanchanwadi, Tq. & Dist. Aurangabad.
3. Geetanjali Roadlines,
Proprietor Ujwala Patil,
Age: Major, Occu. Business,
R/o. House No.716, Janki,
At Palm Post Navapur,
Tq. Palghar Boisar, District Thane.
4. Gopal Waghambar Dhomse,
Age : Major, Occu. Driver,
R/o. At Present Wanjarkheda,
Tal. Shirur, Dist. Latur.
5. Tarabai Vikram Jadhav,
Age : 62 years, Occu. Household,
R/o. Newasa Phata, Near Water Tank,
Indiranagar, Tq. Newasa,
Dist. Ahmednagar.
...RESPONDENTS
(Respdt Nos. 1 and 2 - Org. Claimants
Respdt Nos. 3 to 5 - Org. Respdt. No.1, 2 & 4)
...
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2 FA NO.1044 of 2013
Mr. S.G.Chapalgaonkar, Advocate, for appellants
Mr. T.S.Lodhe, Advocate h/f Mr. S.S.Shete, Advocate for
Respondent No.5.
...
CORAM: P.R.BORA, J.
Date of reserving the judgment: 05th April, 2016
Date of pronouncing the judgment: 16th April,2016
...
JUDGMENT:
1. The appellant Insurance Company has filed the
present appeal challenging the judgment and award passed in
M.A.C.P.No.301/2010 on 6.8.2011 by the Motor Accident Claims
Tribunal at Aurangabad. The aforesaid claim petition was filed
by respondent nos.1 and 2 herein, claiming compensation of
Rs.7,00,000/- (Rs. seven lacs) on account of death of Vishal @
Pandurang Jadhav who died in a vehicular accident having
involvement of a tempo bearing Registration No.MH-04-DS-
8088 owned by respondent no.3 herein and insured with the
present appellant.
2. Respondent no.1 is the widow, Respondent No.2 is
the daughter, whereas respondent no.5 is the mother of
deceased Vishal. The claim petition was filed by respondent
nos. 1 and 2 herein and respondent no.5 was respondent no.4
in the claim petition. Respondent nos. 1, 2 and 5 are
hereinafter referred to as the claimants.
3 FA NO.1044 of 2013
3. It was the case of the claimants before the Tribunal
that, at the relevant time, deceased Vishwal was proceeding in
the aforesaid Tempo from village Shilapur to Yeola along with
the household goods. It was the further contention of the
claimants that the driver of the offending Tempo was driving
the same in a rash and negligent manner and that ultimately
resulted in occurrence of the alleged accident. As stated in the
petition, at the time of his death, deceased Vishal was aged
about 23 years and was earning Rs.10,000/- per month from
his employment with a toll plaza as a Supervisor. It was
contended by the claimants before the Tribunal that they were
depending on the income of deceased Vishal and have,
therefore, claimed the compensation amounting to
Rs.7,00,000/- from the owner and insurer of the offending
tempo.
4. The appellant Insurance Company resisted the claim
petition on several grounds. According to the appellant since
deceased Vishal was a gratuitous passenger in a goods
carrying vehicle, his risk was not covered under the policy of
insurance. The appellant had also taken a plea that the driver
of the offending tempo was not holding a valid and effective
4 FA NO.1044 of 2013
license on the date of the accident. On these two counts, the
appellant Insurance Company had prayed for exonerating it
from the liability of paying compensation to the claimants.
5. Learned Tribunal on its assessment of the oral and
documentary evidence brought before it partly allowed the
claim petition and awarded the compensation of Rs.5,74,000/-
inclusive of the amount of no fault liability to the claimants
jointly or severally from respondent nos. 1 to 3 i.e. the present
appellant and present respondent nos. 3 and 4. Aggrieved
thereby, present appeal is being preferred by the Insurance
Company.
6. Shri S.G.Chapalgaonkar, learned Counsel appearing
for the appellant Insurance Company submitted that the
Tribunal has grossly erred in not holding deceased Vishal as
gratuitous passenger in the offending tempo. Learned Counsel
submitted that though it was the case of the claimants that at
the relevant time, deceased Vishal was traveling through the
offending tempo along with his goods, no such evidence has
been brought on record by the claimants showing that deceased
Vishal was, in fact, carrying the household goods along with
him in the offending tempo. Learned Counsel submitted that
5 FA NO.1044 of 2013
the FIR does not disclose that deceased Vishal boarded in the
said tempo with the goods i.e. cupboard, etc. Learned Counsel
submitted that, admittedly, the offending tempo was a goods
carrying vehicle and was not permitted to carry any passenger
therein. Learned Counsel submitted that the learned Tribunal
has not considered that deceased Vishal being gratuitous
passenger in the offending tempo, his risk was not covered
under the policy of Insurance. Learned Counsel, therefore,
prayed for allowing the appeal and to quash and set aside the
judgment and award against the present appellant.
7. Learned Counsel appearing for the original
claimants supported the impugned judgment and award.
8. After having heard the learned Counsel for the
parties, and after having gone through the impugned judgment
and record of the case, the only question which requires to be
determined in the present appeal is: "whether or not the risk of
the deceased was covered under the policy of insurance
pertaining to the tempo involved in the alleged accident."
9. The material on record reveals that the cover note
of the insurance in respect of the offending tempo was filed on
6 FA NO.1044 of 2013
record at Exh.52. The correctness and contents of the said
cover note were admitted by the witness examined by the
appellant Insurance Company before the Tribunal. One Shri
Kishor Patil, working as Branch Manager, was examined as its
witness by the appellant Insurance Company. It has come in
the cross examination of said Kishor Patil that the offending
tempo was insured with the appellant Insurance Company
under a comprehensive policy which covers the risk of own
damages as well as the third party. As has been discussed by
the Tribunal, in paragraph no.24 of its judgment, said Kishor
Patil has admitted that the owner of the tempo had paid
Rs.100/- as a premium for covering the risk of the unnamed
passengers. Said Kishor Patil has also admitted that the
Insurance policy has to be issued in terms of the proposal
incorporated in the cover note and the Insurance Company
cannot make any change in the proposal while issuing
Insurance Policy.
10. In view of the evidence as above, though it was
sought to be canvassed by the appellant Insurance Company
that the Insurance policy which was at Exh.57 does not cover
the risk of unknown passenger, said contention has been
rejected by the Tribunal. I do not find any error in the finding
7 FA NO.1044 of 2013
so recorded and the conclusion arrived at by the Tribunal.
From the evidence on record, it is fully established that the
owner of the tempo had paid the additional premium of
Rs.100/- so as to cover the risk of the unnamed passengers.
In the circumstances, even if we keep aside the controversy
whether deceased Vishal was the owner of the goods being
carried in the said tempo or was a gratuitous passenger, his
risk was certainly covered.
The appeal is devoid of any substance and hence the
following order:
ORDER
a) The appeal is dismissed with costs.
b) The claimants are permitted to withdraw the
amount, if any, deposited by the Insurance Company in the
present appeal.
(P.R.BORA)
JUDGE
...
AGP/1044-13fa
