Bombay High Court
New India Assurance Company Ltd., ... vs Nagorao Rangrao Ghogre And Others on 26 August, 2016
Bench: A.V. Nirgude
1 FA 2640/2015
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
APPELLATE SIDE, BENCH AT AURANGABAD
FIRST APPEAL 2640 NO. OF 2015
New India Assurance Company Ltd., APPELLANT
Through its Branch Manager, Gayatri Krupa,
Chandranagar, Ukka Mark, Latur, Through its
Divisional Manager, Adalat Road,
Aurangabad
V E R S U S
1 Nagorao S/o Rangrao Ghogre, Aged 54 RESPONDENTS
Years, Occupation Agriculture, Resident of
Takalgaon (Kam), Taluka Ahmedpur, District
Latur
2 Balaji S/o Digamber Kedar, Aged 29 Years,
Occupation Driver, Resident of Takalgaon,
Taluka Ahmedpur, District Latur
3 Murlidhar S/o Maroti Mundhe, Aged Major,
Occupation Business, Resident of Shelmoha,
Taluka Parali, District Beed
Mr. S.G. Chapalgaonkar, Advocate for the Appellant
Mr. V.D. Gunale, Advocate for Respondent No.1
CORAM : A.V. NIRGUDE, J.
DATE : 26th August, 2016
2 FA 2640/2015
ORAL JUDGMENT :
1. Heard.
2. Admit.
3. By consent, taken up for final hearing. Heard the learned
counsel for the Appellant and for Respondent No.1.
4.
This is Insurance Company's Appeal challenging the
Judgment and Award dated 26th November, 2013, passed in Motor
Accident Claim Petition No. 51 of 2011.
5. The facts leading to this litigation are as under :-
On 2nd July, 2009 at about 11.00 a.m., respondent - claimant
boarded an Auto-Rikshaw, -a pickup Van- at his village Takalgaon to go
towards Chakur. On the way, the Auto-Rikshaw met with an accident
causing grievous injuries to the respondent-claimant. He sustained
fracture to his limbs and thereafter he was hospitalized. Due to the
injuries, he sustained 48% permanent disability. He lodged this claim-
petition against the owner and driver of the pickup Van and the Insurance
Company. Appellant - Insurance Company opposed the claim and denied
their liability on the premise that being a Goods career, the owner and
driver were not permitted to carry passengers.
3 FA 2640/2015
6. This objection was overruled by the learned Member. He
came to the conclusion that as per the policy 'cover-note', there is a
mention of words "1+1 passenger" in such vehicle, and therefore, he
thought that a passanger would get compensated.
7. The learned counsel for the Appellant asserted that the
contract of Insurance, which is an admitted document must be read in the
light of Section 147 of the Motor Vehicles Act, 1988. There is no doubt that
this Goods-vehicle was permitted to carry two passengers; one obviously
was the driver and other could be an employee of owner or a owner or
representative of goods carried in such vehicle. Section 147 of the Motor
Vehicles Act, 1988 reads as under :-
"147. Requirements of policies and limits of liability :- (1) In
order to comply with the requirements of this Chapter, a policy of
insurance must be a policy which -
(a) is issued by a person who is an authorised
insurer; and
(b) insures the person or classes of persons
specified in the policy to the extent specified in sub-section (2) -
(i) against any liability which may be incurred by
him in respect of the death of or bodily injury to any person,
including owner of the goods or his authorised representative
carried in the vehicle or damage to any property of a third party
caused by or arising out of the use of the vehicle in a public place;
(ii) Against the death of or bodily injury to any
passenger of a public service vehicle caused by or arising out of the
use of the vehicle in a public place;
Provided that a policy shall not be required-
(i) to cover liability in respect of the death, arising out of
and in the course of his employment, of the employee of a person
insured by the policy or in respect of bodily injury sustained by such
an employee arising out of and in the course of his employment
other than a liability arising under the Workmen's Compensation
4 FA 2640/2015
Act, 1923 (8 of 1923), in respect of the death of, or bodily injury to
any such employee -
(a) engaged in driving the vehicle, or
(b) if it is a public service vehicle, engaged as a
conductor of the vehicle or in examining tickets on the vehicle, or
(c) if it is a goods carriage, being carried in the vehicle,
or
(ii) To cover any contractual liability.
(2) Subject to the proviso to sub-section (1), a policy of
insurance referred to in sub-section (1), shall cover any liability
incurred in respect of any accident, up to the following limits,
namely:-
(a) Save as provided in clause (b), the amount of
liability incurred.
(b) in respect of damage to any property of a third
party, a limit of rupees six thousand:
Provided that any policy of insurance issued with any limited
liability and in force, immediately before the commencement of this
Act, shall continue to be effective for a period of four months after
such commencement or till the date of expiry of such policy
whichever is earlier.
(3) A policy shall be of no effect for the purposes of this
Chapter unless and until there is issued by the insurer in favour of
the person by whom the policy is effected a certificate of insurance
in the prescribed form and containing the prescribed particulars of
any condition subject to which the policy is issued and of any other
prescribed matters; and different forms, particulars and matters may
be prescribed in different cases.
(4) Where a cover note issued by the insurer under the
provisions of this Chapter or the rules made thereunder is not
followed by a policy of insurance within a prescribed time, the
insurer shall, within seven days of the expiry of the period of the
validity of the cover note, notify the fact to the registering authority in
whose records the vehicle to which the cover note relates has been
registered or to such other authority as the State Government may
prescribe.
(5) Notwithstanding anything contained in any law for
the time being in force, an insurer issuing a policy of insurance
under this section shall be liable to indemnify the person or classes
of persons specified in the policy in respect of any liability which the
5 FA 2640/2015
policy purports to cover in the case of that person or those classes
of persons."
8. It is clear from the above provisions that an Insurance Policy
would cover death or bodily injury to any passenger of public service
vehicle. The proviso categorically states that driver or conductor of public
service vehicle or employees carried in the Goods-Vehicle would be
limited to the liability under the Workmens Compensation Act. It does not
make any mention about any passenger in a Goods carriage. The words
"any person" appearing in Section 147 of the Act has thus a context of
another term used in the provision namely 'a third party'. In view of this, in
a Goods-career, the owner can allow either his employee or owner or
representative of goods carried in the vehicle. Such passengers are
covered by the Insurance Policy in addition to a third party (obviously out
side the vehicle) who might sustain injury etc. due to driving of such
vehicle. Section 147 of the Act further clarifies that even the owner of a
passenger Car is under obligation to pay additional premium from covering
the risk of his passengers. In other words, even a passenger in a Car may
not be covered by the Insurance Policy if no premium is paid for covering
such risk. The present case admittedly is of a Goods-career. Respondent
No. 3 - owner of the vehicle thus is not protected by the Insurance Policy.
9. The Appeal to the extent of present Appellant should
succeed. Hence, the following order :-
(Contd.. Page No. 6)
6 FA 2640/2015
O R D E R
(1) First Appeal stands allowed.
(2) The Judgment and Award dated 26th November, 2013, in
Motor Accident Claim Petition No. 51 of 2011 passed against
the Appellant shall stand set aside.
The rest of the said Judgment shall remain intact.
(4) The amount deposited in the Court shall be handed over to
the Appellant.
Civil Application No. 11792 of 2015 stands dismissed.
( A.V. NIRGUDE, J. )
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