Bombay High Court
United India Insurance Co. Ltd vs Laila Ayyub Sayyad And Ors on 20 December, 2016
Bench: P.R. Bora
1 FA 1324.12
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 1324 OF 2012
United India Insurance Co. Ltd.,
Through its Divisional Manager and
authorised representative & signatory
Ahmednagar Divisional Office,
Kisan Kranti Building, Ahmednagar,
Dist. Ahmednagar. ... Appellant
Vs.
1.
Laila Ayyub Sayyad,
Age: 38 years, Occu. Nil.
2. Sultana Ayyub Sayyad,
Age: 17 years, Occu. Nil.
3. Shamma Ayyub Sayyad,
Age: 15 years, Occu. Nil.
4. Munni Ayyub Sayyad,
Age: 13 years, Occu. Nil.
5. Sikandar Ayyub Sayyad,
Age: 11 years, Occu. Education,
6. Rajjak Ayyub Sayyad,
Age: 9 years, Occu. Education,
Resp.Nos. 2 to 6 minor u/g of
mother applellant no.1.
7. Bismilla Yashin Sayyad,
Age: 60 years, Occ. Nil.
Resp. nos. 1 to 7 R/o Mahekar,
Tq. & Dist. Ahmednagar.
8. Prabhakar Snyabapu Andhale,
Age: 50 years, Occ. Agri,
R/o Mhekari,
Tq.& Dist. Ahmednagar. ... Respondents
.....
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2 FA 1324.12
Mr. A.B. Gatne, Advocate for the appellants.
Mr. J.R. Patil, Advocate for respondent nos. 1 to 7.
Mr. K.D. Bade-Patil, Advocate for respondent no.8.
.....
CORAM : P.R. BORA, J.
DATE OF RESERVING THE JUDGMENT : 29-11-2016.
DATE OF PRONOUNCING THE JUDGMENT : 20-12-2016.
JUDGMENT:
1. The judgment and award passed by the Motor Accident
Claims Tribunal, Ahmednagar in Motor Accident Claim Petition no.
418 of 2006 on 20.06.2011 is challenged in the present appeal by
the insurance company which was respondent no.2 in the said
petition.
2. Respondent nos. 1 to 7 (hereinafter referred to as the
'claimants') had filed the aforesaid petition claiming compensation
on account of the death of one Ayyub Sayyad in a vehicular
accident happened on 20.07.2006 having involvement of a tractor
owned by present respondent no.8 and insured with the present
appellant. It was the contention of the claimants before the
Tribunal that deceased Ayyub fell down from the tractor-trolly
because of the rash and negligent driving of the driver of the tractor
and suffered death as a result of injuries caused to him in the said
accident. The claimants had, therefore, claimed the compensation
of Rupees Five Lakhs from the owner and insurer of the said tractor.
The claim petition was resisted by the appellant insurance company
3 FA 1324.12
mainly on the ground that the policy of insurance pertaining to the
tractor involved in the accident was not covering the risk of the
deceased since he was sitting on the mud guard of the tractor.
According to the appellant insurance company, except the driver of
the tractor no one else was allowed to sit in the tractor and
according to the terms of policy risk of the driver alone was
covered. It was the further contention of the appellant insurance
company that by unauthorisedly allowing the deceased to sit on the
mud guard of the tractor the owner and driver of the said tractor
had committed the breach of the terms and conditions of the policy
of insurance and, as such, no liability was liable to be fasten on the
insurance company of paying any compensation to the claimants or
to indemnify the insured.
3. During the trial, the complainants made out a case that
deceased Ayyub was not sitting on the mud guard of the tractor but
was in a trolley attached to the said tractor and fell down from the
said trolley as a result of rash and negligent driving of the driver of
the said tractor. The claimants had also placed on record the police
papers pertaining to the accident in question which included F.I.R.,
spot panchnama, inquest panchnama etc. The appellant-insurance
company filed on record the statements of the witnesses recorded
by the police during the investigation of the crime registered in
connection with the alleged accident.
4 FA 1324.12
4. The tribunal after having scrutinised the oral and
documentary evidence brought on record, though, held that there
was breach of insurance policy and the insurance company was not
liable to indemnify the owner of the vehicle, while passing the final
order held insurance company jointly and severally liable to pay the
amount of compensation to the claimants. The tribunal has also
issued further direction to the insurance company to pay the
amount of compensation at the first instance to the petitioners and
then to recover the said amount from the owner of the offending
tractor. Aggrieved by, the insurance company has filed the present
appeal.
5. Heard Shri A.B. Gatne, the learned counsel appearing
for the appellant-insurance company, Shri J.R. Patil, the learned
counsel appearing for respondent nos. 1 to 7 and Shri K.D. Bade-
Patil, the learned counsel appearing for respondent no.8. Perused
the impugned judgment and the evidence on record.
6. Shri A.G. Gatne, the learned counsel for the appellant-
insurance company submitted that, once the tribunal has held that
there was a breach of insurance policy and the insurance company
was not liable to indemnify the owner of the vehicle, the tribunal
ought not have directed the appellant insurance company to jointly
and severally pay the amount of compensation as determined by
the tribunal to the claimants and also could not have issued any
5 FA 1324.12
such direction against the appellant-insurance company to first pay
the amount of compensation to the claimants and then to recover
the said amount from the owner of the offending vehicle. The
learned counsel, therefore, prayed for setting aside the impugned
judgment and award and consequently to dismiss the claim petition
against the appellant-insurance company. In support of his
contentions, the learned counsel placed his reliance on the
judgment of this court in the case of United India Insurance Co.
Ltd. V/s. Anubai Gopichand Thakare and Ors. reported in
2008(1) Mh.L.J. 73.
7. The learned counsel appearing for the respondents
supported the impugned judgment. The learned counsel submitted
that, a well reasoned order has been passed by the tribunal and no
interference is required in the judgment and award so passed. Shri
K.D. Bade-Patil, the learned counsel appearing for the respondent
no.8 cited the judgment of the Hon'ble Apex Court in the case of
Fahim Ahmad and Ors. V/s. United India Insurance Company
Limited and Ors. reported in 2014 AIR (SC) 2187, to support
his contention.
8. The question which falls for my consideration in the
present appeal is whether the appellant-insurance company can be
jointly and severally held liable to pay the amount of compensation
to the claimants and whether the direction given by the tribunal in
6 FA 1324.12
the impugned judgment against the appellant-insurance company
to first pay the amount of compensation to the claimants and then
to recover the said amount from the owner of the offending vehicle,
can be sustained.
9. Section 147 of the Motor Vehicles Act, 1988 (hereinafter
referred to as the 'Act') speaks about the requirements of policy
and limits of liability. Section 147 (1) (b) (i) of the Act provides
that, in order to comply with the requirements 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 the death of or bodily injury to
any person, including the 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.
10. 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,
7 FA 1324.12
pay to the person entitled to the benefits of the decree any sum not
exceeding the sum insured payable thereunder, as if he were
judgment debtor, in respect of the liability, together with any
amount payable in respect of costs and any sum payable in respect
of interest on that sum by virtue of any enactment relating to
interest on judgments.
11. The conjoint reading of Section 147 (1) (b) and Section
149 (1) of the Act leaves no doubt that the insurer cannot be fasten
with liability to satisfy the judgment and award passed against the
insured in respect of the death of or bodily injury to any person
whose risk is not covered under the policy of the insurance issued
by the insurer under Section 147 (3) of the Act.
12. Perusal of the claim petition reveals that, initially it was
the contention of the claimants themselves that deceased was
sitting on a tractor and fell down from the tractor because of the
rash and negligent driving of the driver of the said tractor, however,
during the trial and more particularly in the oral evidence the
version as was there in the claim petition was improved and a case
was put-forth that deceased Ayyub was sitting in tractor-trolley. It
seems that in the arguments also it was submitted that, the
deceased was in the tractor-trolley. The claimants, along with the
claim petition had filed the relevant police papers pertaining to the
alleged accident which include the F.I.R., spot panchnama, inquest
8 FA 1324.12
panchnama, postmortem report etc. In her testimony before the
court claimant no.1 Smt. Laila Ayyub, widow of the deceased
referred to the said police papers and in her evidence itself the said
police papers were exhibited. The claimants had relied upon the
said police papers to substantiate the contentions raised in the
petition.
13. Perusal of the F.I.R. reveals that, deceased was sitting
on the mud guard of the offending tractor and fell down therefrom
as a result of rash and negligent driving by the driver of the said
tractor. The averments in the spot panchnama also reveal that, the
deceased was sitting on the mud guard of the tractor. Ashok. C.
Kanade who had lodged the F.I.R. of the alleged accident was
examined by the claimants as their witness. In his testimony
before the tribunal, said Ashok Kanade has deposed that he had not
stated to the police while lodging the F.I.R. that deceased Ayyub
was sitting on the mud guard of the tractor. The owner of the
tractor has examined the driver of the said tractor as his witness.
In his evidence before the tribunal said driver viz; Dilip Laxman
Chandane has deposed that deceased Ayyub was sitting in the
trolley of the tractor. The insurance company had examined
Mahadev Namdev Pathare, A.S.I. Of Police Station Kotwali,
Ahmednagar as its witness. The said witness has testified before
the tribunal that Ashok Kanade lodged the F.I.R. of the alleged
9 FA 1324.12
accident and the said F.I.R. was recorded as per the information
given by said Ashok Kanade. The said witness has further deposed
that the said F.I.R. after it was reduced into writing, was read over
to said Ashok Kanade and, thereafter, he put his thumb impression
on the said F.I.R. The said witness has further deposed that he has
also recorded the statement of driver Dilip Laxman Chandane who
was present on the spot. The said witness has also deposed that
during the investigation it was revealed to him that deceased was
sitting on the mud guard of the tractor besides the driver of the
tractor. During the course of his evidence the copy of the F.I.R. was
brought to the notice of the said witness and on perusal of the said
document the said witness had deposed that it was the same report
which was lodged by Ashok Kanade and it bears his signature and
the thumb impression of said Ashok Kanade. In the cross-
examination, though, it was suggested to the said witness that
deceased Ayyub was sitting in the trolley and fell down from the
trolley, the suggestion so given was denied by the said witness.
The further suggestion given to him that, the informant and the
driver of the tractor had stated in their respective statements that
deceased was sitting in the trolley, however, the said suggestion
was also denied by the said witness.
14. On perusal of the evidence as aforesaid, it is difficult to
accept the story attempted to be put-forth by the claimants that
10 FA 1324.12
deceased was not sitting on the mud guard of the tractor but in the
trolley of the tractor. There seems no reason to dis-believe the
contents of the F.I.R. and the spot panchnama which have also
been relied upon by the claimants. There was no reason for the
concerned A.S.I. namely Mahadev Namdev Pathare to record any
incorrect information or the fact not stated by the informant. As
noted above, in his testimony before the court, the said witness has
categorically deposed that the F.I.R. was recorded by him as per
version narrated by the informant and that contents of the F.I.R.
were read over by him to the informant before obtaining his thumb
impression on the said F.I.R.. In absence of any such evidence
brought on record suggesting the possibility of recording the F.I.R.
in distorted manner by said A.S.I. Mahadev Namdev Pathare, there
seems no reason to dis-believe the testimony of the said witness.
From the material on record, it is thus, evident that the deceased
Ayyub was sitting on the mud guard of the tractor and not in the
trolley.
15. The tribunal has also recorded a clear finding that the
deceased fell down from the mud guard of the tractor. Now the
question arises whether the risk of the deceased who was sitting on
the mud guard of the tractor was covered under the policy of
insurance of the said tractor. It was the specific defence raised by
the appellant-insurance company that policy of insurance does not
11 FA 1324.12
cover the risk of the person sitting on the mud guard of the tractor.
The certified copy of the policy of insurance was placed on record
before the tribunal. The registration particulars of the offending
tractor were also placed on record which reveal that, the sitting
capacity of the said tractor was only one, obviously driver alone of
the tractor and no one else. In view of the evidence as aforesaid,
the tribunal has also held that there was breach of insurance policy
and the insurance company was not liable to indemnify owner of
the tractor. However, by wrongly interpreting the judgment relied
upon by the claimants and the owner of the tractor, the tribunal,
has erroneously held the insurance company liable to first pay the
compensation to the claimants and then to recover the said amount
from the owner of the tractor.
16. The tribunal has manifestly erred in holding the
deceased as "third party". As has been observed by this court in
the case of United India Insurance Co. Ltd. Vs. Anubai
Gopichand Thakare and Ors. (cited supra), the expression
"third party" needs to be determined in each case with reference to
the terms of insurance policy. If the risk of a person is covered
under the contract of insurance, then he/she would be the third
party regarding whom the insurance cover can be used and the
insurer will be liable to indemnify the insured in such cases.
However, the person, whose risk is not covered under the terms of
12 FA 1324.12
the insurance policy cannot be treated as "third party" within the
meaning of the provisions of section 147 read with section 149 of
the Act. In the circumstances, the insurer cannot be held liable
even for the purpose of satisfying the award at the first instance
passed in such cases against the insured.
17. The judgment relied upon by respondent no.8 in the
case of Fahim Ahmad and Ors. (cited supra) is altogether on
different facts and hence cannot be made applicable to the facts of
the present case.
ig In the said case, the deceased was not the
occupant either in the tractor or the trolley involved in the said
accident. The deceased in the said case was crossing the road and
was hit by the tractor attached with the trolley from behind. The
deceased in the said case undoubtedly was a third party and his
risk was certainly covered under the insurance policy. In the
instant case, I reiterate that the risk of the deceased was not
covered by the insurance policy. The plain reading of section
147(1) (b) makes it abundantly clear that the statute also does not
require that the policy of insurance in so far as the tractor is
concerned, shall cover the risk of any other person except the
driver of the tractor since driver alos is allowed to sit on the tractor.
18. For the reasons stated above, the order passed by the
tribunal holding the appellant-insurance company jointly and
severally liable to pay the amount of compensation to the claimants
13 FA 1324.12
and the direction given to the appellant-insurance company to first
pay the amount of compensation and then to recover the same
from the insured deserves to be set aside and is accordingly set
aside. Consequently, the claim petition no. 418 of 20016 stands
dismissed against the appellant-insurance company. It is made
clear that the merits of the award are otherwise not considered.
The amount, if any, deposited by the appellant-insurance company
in this court or before the tribunal shall be refunded to it with
interest accrued, if any. The appeal stands allowed in the aforesaid
terms. No order as to costs.
(P.R. BORA, J.)
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