Bombay High Court
United India Insurance Co. Ltd., ... vs Mrs. Pushpa W/O Haribhau Gaikwad ... on 25 April, 2016
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL NO.665 OF 2014
United India Insurance Co. Ltd.,
Nagpur Regional Office,
19, Dharampeth Extension,
4th Floor, Shankar Nagar Square,
Nagpur. ....... APPELLANT
...V E R S U S...
1]
Mrs. Pushpa w/o Haribhau Gaikwad,
Aged about 55 years, Occ: Housewife,
R/o Plot No.720, New Subhedar Layout,
Nagpur.
2] Shri Pranay s/o Sudhir Fulzele,
Appeal has been
dismissed against
Aged about 25 years, Occ: Not known,
R-2 vide Reg. (J) R/o Near Subhedar Layout, Nagpur.
order dtd. (Driver of offending vehicle).
10.2.15.
3] Shri Haribhau s/o Wamanrao Gaikwad,
Aged about 60 years, Occ: Retired,
R/o New Subhedar Layout, Nagpur.
(Owner of offending vehicle). ....... RESPONDENTS
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Shri D.N. Kukday, Advocate for Appellant.
Smt. S.A. Vyas, Advocate for Respondent No.1.
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CORAM: R.K. DESHPANDE, J.
th APRIL, 2016.
DATE: 25
ORAL JUDGMENT
1] In Claim Petition No.1137 of 2007 filed under Section 166
of the Motor Vehicles Act, the Motor Accident Claims Tribunal at Nagpur
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has passed an award on 01.02.2013 holding that the appellant along
with the owner and the driver of the offending vehicle i.e. Motorcycle
Yamaha No.MH-31 AV-8999 along with the appellant - Insurance
Company has jointly and severally liable to pay the compensation of
Rs.3,39,000/- inclusive of no fault liability along with interest at the rate
of 7.5% per annum from the date of filing of the petition till its
realization.
2]
The undisputed factual position is that the deceased was a
pillion rider on the Motorcycle bearing No.MH-31 AV-8999 and the
respondent No.2 - Pranay s/o Sudhir Fulzele was the rider of the
offending vehicle which was owned by respondent No.3 - Haribhau s/o
Wamanrao Gaikwad. The offending vehicle dashed the cyclist on the
road, as a result the pillion rider fell down and suffered serious injuries
to which he succumbed. The motorcycle in question was undisputedly
insured with the appellant - Insurance Company on the date of
occurrence of accident on 12.08.2007 and the respondent No.2 at the
relevant time was riding the motorcycle and possessed the valid driving
licence.
3] The point for determination is as under:
Whether the risk of the deceased pillion rider was
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covered by the policy at Exhibit 32 of the appellant -
Insurance Company?
4] Undisputedly, the appeal is dismissed against the
respondent No.2 - Pranay s/o Sudhir Fulzele the rider of the motorcycle.
However, the owner of the motorcycle, who is vicariously liable for the
act of the respondent No.2 has been served in the matter and no one
appears for him and on the last occasion, it was made clear that as per
the order passed by this Court for final disposal of the matter on
28.10.2014, the matter shall be heard on its own merits. Accordingly, the
learned counsels have placed on record copy of the insurance policy at
Exhibit 32.
5] Perusal of the insurance policy shows that it is an Act policy
covering the risk and liability of the third party in respect of the vehicle
i.e. Motorcycle No.MH-31-AV-8999. The policy is not the comprehensive
and the risk of the pillion rider is not covered by it. The Tribunal has
therefore, committed an error in holding that the Insurance Company is
jointly and severally liable to pay the compensation along with the driver
and the owner of the offending vehicle. To cover the risk of the pillion
rider, there has to be a contract for indemnification to the owner. In the
absence of such contract, the liability of the pillion rider shall not be
covered by the Act policy. The Tribunal has therefore, committed an
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error in holding that the appellant - Insurance Company is jointly and
severally liable to pay the amount and then to recover it from the owner
of the offending vehicle. The order to that extent is without jurisdiction
and cannot be sustained.
6] In the result, the appeal is allowed and the following order
is passed:
[i]
The judgment and award dated 01.02.2013 passed by the
Motor Accident Claims Tribunal at Nagpur in Claim Petition
No.1137 of 2007 to the extent it holds the appellant -
Insurance Company jointly and severally liable to pay the
amount of compensation along with the interest is hereby
quashed and set aside. The Claim Petition No.1137 of 2007
is dismissed against the appellant - Insurance Company.
Rest of the award is not assailed by the owner of the vehicle,
and hence, the same remains intact.
[ii] The appellant - Insurance Company has deposited the entire
decretal amount which is permitted to be withdrawn by the
appellant - Insurance Company along with the interest, if
any, accrued thereon.
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[iii] The claimant shall be at liberty to enforce the award against
the owner of the vehicle.
[iv] Civil application for withdrawal of amount does not survive
and therefore, the same stands disposed of.
ig JUDGE
NSN
