Bombay High Court

New India Assurance Co Ltd vs Abhiman Walji Kadhare And Others on 20 December, 2016

Bench: P.R. Bora

                                               1               FA NO.2105 OF 2014

           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      BENCH AT AURANGABAD




                                                                              
                        FIRST APPEAL NO.2105 OF 2014




                                                      
               New India Assurance Co.Ltd.
               Branch Manager, airport Road, Yerwada, Pune,
               Through its authorized signatory,




                                                     
               Asst.Manager, Legal Hub,
               New India Assurance Co. Ltd., R/o. Aurangabad.

                                                    ...APPELLANT/
                                                   Orig.Resp.No.3




                                            
                       VERSUS

      1.
                             
               Abhiman Walji Kadhare,
               Age 48 yrs.,, Occ. Labour.
                            
      2.       Sou.Bebabai Abhiman Kadhare
               Age 44 yrs. Occ. Household.

               Both R/o. Japi, Tq. Dist. Dhule.
      


                                                   ...ORIG.CLAIMANTS
   



      3.       Gulam Ahmad Bale Mohammad
               Age 53 yrs. Occ. Vehicle Owner
               R/o. Indama Zopadpatti, Malegaon,
               Tq. Malegaon, Dist. Nasik.





      4.       Smt. Latabai Amrut Dhivare
               Age 47 yrs. Occ. Vehicle Owner
               R/o. Sangameshwar Ward, Ambedkar Nagar
               Malegaon, Tq. Malegaon, Dist. Nashik.





      (5.      Shahaji Janardan Shinde,
               Age 51 yrs. Occ. Driver,
               R/o Galli No.1, Ambedkar Nagar,
               Malegaon, Tq. Malegaon, Dist. Nashik. )
               (Appeal dismissed as against R/5 as per
               Hon'ble Courts order dated 9.10.2015)

                                             ...RESPONDENTS /
                                   Orig.Claimants & Resp.Nos. 1, 2 and 4.
                                             ...




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                                                 2                 FA NO.2105 OF 2014

               Mr.D.P.Deshpande, Advocate for appellant.
               Mrs. S.T.Kazi, Advocate for respondent nos. 1 and 2.




                                                                                
               Respondent nos. 3 and 4 served.
               Appeal dismissed as against R/5 as per Hon'ble




                                                        
               Courts order dt.9.10.2015.
                                    ...

                                   CORAM: P.R.BORA, J.




                                                       
                                    ...
               Date of reserving the judgment: 27/10/2016




                                              
               Date of pronouncing the judgment: 20/12/2016
                                 ...

      JUDGMENT:

1. Present Appeal is filed against the judgment and

award passed by the Motor Accident Claims Tribunal at

Dhule in M.A.C.P.No.1142/2011, decided on 31st of July,

2014.

2. The aforesaid Claim Petition was filed by

present respondent nos. 1 and 2 seeking compensation on

account of death of one Sanjay Abhiman Katare in a

vehicular accident happened on 11th May, 2011, having

involvement of a Tata-407 truck bearing registration

No.MH-15/G-2686 owned by present respondent no.3 and

insured with the present appellant. The Claim Petition

was resisted by appellant Insurance Company mainly on

3 FA NO.2105 OF 2014

the ground that the deceased was a fair paying passenger

in a goods truck which was insured with it and, as such,

the risk of the deceased was not covered under the policy

of insurance purchased by respondent no.3 for the insured

vehicle. According to the appellant Insurance Company

by carrying a fare paying passenger in a goods truck, the

owner of the truck had committed breach of the terms and

conditions of the Insurance policy and as such the

insurance company not liable to indemnify the insured.

3. In view of the plea so raised by the Insurance

Company in its written statement, a specific issue was

framed by the Tribunal in that regard and the Tribunal has

recorded an affirmative finding on the said issue thereby

holding that respondent no.3 i.e. the appellant Insurance

Company has proved that respondent nos. 1 and 2 i.e.

driver and owner of the insured vehicle have committed

breach of terms and conditions of the Insurance policy.

Despite recording the finding as aforesaid the learned

Tribunal, however, held the appellant Insurance Company

jointly and severally liable to pay the amount of

compensation to the claimants. The learned Tribunal has

4 FA NO.2105 OF 2014

further issued a direction against the appellant Insurance

Company to pay the amount of compensation to the

petitioners at the first instance and then recover the said

amount from the Driver and owner of the insured vehicle

jointly or severally along with the interest thereon at the

rate of 10 per cent per annum from the date of payment of

the said amount till its realization. Aggrieved thereby,

the Insurance Company has filed the present appeal.

4. Mr. D.P.Deshpande, learned Counsel appearing

for the appellant Insurance Company, submitted that once

the Tribunal has recorded an affirmative finding thereby

holding that the Insurance company has proved the breach

of the terms and conditions of the policy by the Driver and

owner of the insured vehicle, the Tribunal ought not have

held the Insurance Company liable to pay the amount of

compensation to the claimants jointly and severally with

the driver and owner of the insured vehicle. Learned

Counsel further submitted that the Tribunal has manifestly

erred in directing the appellant Insurance Company to pay

the amount of compensation to the claimants at the first

instance and then to recover the said amount from the

5 FA NO.2105 OF 2014

driver and owner of the insured vehicle. Relying on the

following judgments, the learned counsel prayed for

setting aside the impugned judgment and award and,

consequently, to dismiss the Claim Petition against the

appellant Insurance Company:

1. National Insurance Co.Ltd. Vs.Baljit Kaur and

others. ( AIR 2004 SC 1340)

United India Insurance Co.Ltd. through it's Divisional Manager and

Authorised Representative and Signatory.

vs.

Anubai Gopichand Thakare and others ( 2008 (1) Mh.L.J. 73)

3. National Insurance Co.Ltd.

vs.

Bommithi Subhayamma and others ( 2005 ACJ 721)

4. National Insurance Co.Ltd.

vs.

Prema Devi and others (2008 (3) SCALE 393)

5. New India Assurance Co.Ltd.

vs.

Vedwati and ors.

( AIR 200-7 SC 1334)

5. Smt. S.T.Kazi, learned Counsel appearing for

6 FA NO.2105 OF 2014

the original claimants i.e. respondent nos. 1 and 2 in the

present appeal, opposed the submissions advanced on

behalf of the appellant Insurance Company. Learned

counsel supported the impugned judgment and award.

Learned Counsel, placing her reliance on two judgments of

this Court, one in the case of United India Insurance

Co.Ltd. Vs. Sindhubai w/o Kondiram Darwante ( Mh.L.J.

2010-3-886) and the other in the case of Bajaj Allianz

General Insurance Co.Ltd. Vs. Sangita wd/o Bhagwan

Raut and others ( 2015 (1) Mh.L.J.883) , submitted that

the Tribunal has not committed any error in issuing the

directions against the appellant Insurance Company to pay

to the claimants the amount of compensation as per the

award and then recover the said amount from the Driver

and owner of the insured vehicle.

6. The only question which falls for my

consideration in the present appeal is whether the

appellant Insurance Company can be jointly or severally

held liable to pay the amount of compensation to the

claimants and whether the direction given by the Tribunal

in the impugned judgment and award against the appellant

7 FA NO.2105 OF 2014

Insurance Company, to first pay the amount of

compensation to the claimants as per the impugned award

and then to recover the said amount from the Driver and

owner of the insured vehicle can be sustained.

7. Section 147 of the Motor Vehicles Act, 1988

speaks about the requirements of policies and limits of

liability.

Section 147(1)(b)(i) of the Act provides that in

order to comply with the requirement of Chapter XI of the

Motor Vehicles Act, a policy of insurance must be a policy

which insures the person or classes of persons specified in

the policy to the extent specified in sub-section (2)

against any liability which may be incurred by him in

respect of death of or bodily injury to any person,

including owner of the goods or his authorized

representative carried in the vehicle or damage to any

property of third party caused by or arising out of the use

of the vehicle in a public place.

8. Plain reading of the aforesaid provision makes it

abundantly clear that the Statute does not require that the

policy of Insurance shall cover the risk of a person carried

8 FA NO.2105 OF 2014

in a vehicle as a fare paying passenger.

9. Section 149(1) of the Act provides that if, after

a certificate of Insurance has been issued under sub-

section (3) of Section 147 of the Act, in favour of the

person by whom a policy has been effected, judgment or

award in respect of any such liability as is required to be

covered by a policy under clause (b) of sub-section (1) of

Section 147 (being a liability covered by the terms of the

policy), the insurer shall, subject to the provisions of this

Section, pay to the person entitled to the benefit of the

decree any sum not exceeding the sum assured payable

thereunder, as if he were the judgment debtor, in respect

of the liability, together with any amount payable in

respects of costs and any sum payable in respect of

interest by virtue of any enactment relating to interest on

judgments.

10. The conjoint reading of Section 147 (1)(b) and

Section 149 (1) of the Act leaves no doubt that the insurer

cannot be fastened with the liability to satisfy the

judgment and award passed against the insured in respect

9 FA NO.2105 OF 2014

of the death of or bodily injury to any person whose risk is

not covered under the policy of Insurance issued by the

insurer under Section 147(3) of the Act.

11. In the instant matter, the Tribunal has recorded

an unambiguous finding that the deceased was a fair

paying passenger in the insured vehicle involved in the

alleged accident which was, admittedly, a goods carriage.

As has been held by the Tribunal, since the insured vehicle

was not to be used for carrying the passengers for hire or

reward, there has been a breach of a specified condition of

the policy of the insured vehicle. In view of the fact that

the risk of the deceased was not at all covered by the

policy of insurance, there was no reason for the Tribunal to

hold the appellant Insurance Company jointly and

severally liable to pay the amount of compensation to the

claimants. Neither any such direction could have been

issued by the Tribunal against the appellant Insurance

company to first pay the amount of compensation as per

the award to the claimants and then to recover the said

amount from the owner of the vehicle involved in the

alleged accident.

10 FA NO.2105 OF 2014

12. Relying on the judgment of this Court in the

case of United India Insurance Co.Ltd. Vs. Sindhubai w/o

Kondiram Darwante and Bajaj Allianz General Insurance

Co.Ltd. Vs. Sangita wd/o Bhagwan Raut and others

( cited supra), though it was sought to be contended on

behalf of the original claimants that the Tribunal has

rightly issued the direction against the insurer to first

deposit the amount of compensation payable to the

claimants and, thereafter, to recover the same from the

insured by executing the same award, it does not appear

to me that in the facts of the present case, the said

judgments may be of any help to take further the cause of

the original claimants. In the case of Bajaj Allianz General

Insurance Co.Ltd., whether the risk of the deceased was

covered under the Insurance policy, was not the point at

issue. The issue involved in the said case was as regards

to the defense raised by the Insurance Company as about

the driving license of the driver who was driving

the offending vehicle at the time when the accident

happened. In the case of United India Insurance Co.Ltd.

      Vs.       Sindhubai w/o Kondiram Darwante,                         the learned




                                       11              FA NO.2105 OF 2014

Single Judge has discussed about the powers of the

Tribunal to pass the pay and recover orders. In

paragraph No.26 of the said judgment, the learned Single

Judge has observed that the pay and recover orders

cannot be passed in all the cases, as of rule, where the

insurer is held not liable to indemnify the insured. In the

instant matter, it appears to me that when the risk of the

deceased was not covered under the policy of insurance, it

may be unjust even to direct the Insurance Company to

first pay the amount of compensation and then to recover

it jointly or severally from the driver or the owner of the

insured vehicle.