New India Assurance Co Ltd Br ... vs Kusum Chandrabhan Pakhare And Ors
2016 Latest Caselaw 7468 Bom

                                              1                                    FA 02.14



             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                     BENCH AT AURANGABAD




                                                                            
                                   FIRST APPEAL NO. 2 OF 2014




                                                    
            New India Assurance Co. Ltd.,
            Branch Manager, Aurangabad,
            Through its authorised signatory,
            Mr. Sanjiv s/o Ramrao Galsamudre,




                                                   
            Age 50 yrs, Occ. Service-Sr.Div. Manager
            New India Assurance Co. Ltd.,
            R/o Aurangabad.                                         ...Appellant
                  Vs.




                                           
    1.      Sau. Kusum Chandrabhan Pakhare,
            Age: 41 years, Occ. Labourer,
                             
            R/o Pimpri Raja, Tq. & Dist. Aurangabad.

            LRs added as per order dtd. 02.11.12
                            
    2.      Chandrabhan s/o Vitthal Pakhare,
            since deceased, through his L.R.s

    2A.     Ravindra Chandrabhan Pakhare,
      

            Age 19 yrs, Occ. Education.
   



    2B.     Prakash Chandrabhan Pakhare,
            Age 15 yrs, Occ. Education,

    2C.     Pradhum Chandrabhan Pakhare,
            Age 13 yrs, Occ. Education.





            Resp.Nos. 2B & 2C being minors u/g
            of their mother, resp. no.1 hereinafter
            All R/o Pimpri Raja,
            Tq. & Dist. Aurangabad.





    3.      Santosh s/o Digamber Shinde,
            Age: 36 years, Occ. Driver,
            R/o Pimpri Raja, Tq. & Dist. Aurangabad.

    4.      Haribhau s/o Panditrao Dandge,
            Age: 40 years, Occ. Owner of the vehicle,
            R/o Warud Kazi, Tq. & Dist. Aurangabad.
    5.      Nizamuddin s/o Allabaksh Shaikh,
            Age: 56 years, Occ.Business,
            R/o Pimpri Raja, Tq. & Dist. Aurangabad.                ...Respondents




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                                           2                                      FA 02.14



                                   .....
    Mr. D.P. Deshpande, Advocate for the appellant.
    Mr. M.K. Deshpande, Advocate for the respondent nos. 1 to 7.




                                                                          
                                   .....
                                       CORAM : P.R. BORA, J.




                                                  
    DATE OF RESERVING THE JUDGMENT   : 29-11-2016.
    DATE OF PRONOUNCING THE JUDGMENT : 20-12-2016.

    JUDGMENT:

1. Heard the learned counsel appearing for the respective

parties.

2.

The present appeal can be disposed of in view of the

law laid down by the Hon'ble Apex Court in the case of Sanjeev

Kumar V/s. National Insurance Company Limited and Ors.

reported in AIR 2013 SC 1125.

3. In the aforesaid case the issue for consideration before

the Supreme Court was, "whether the insurer is obliged under the

law to indemnify the owner of a goods vehicle when the employees

engaged by the hirer of the vehicle travel with the owner of the

goods on the foundation that they should be treated as "employees"

covered under the policy issued in accordance with the provisions

contained under section 147 of the Motor Vehicles Act, 1988 (for

brevity the 'Act').

4. The Hon'ble Apex Court, while delivering the judgment

in the said matter has held that, the statutory policy only covers

employees of the insured, either employed or engaged by him in a

3 FA 02.14

goods carrier and it does not cover any other kind of employees. In

explicit terms, the Hon'ble Apex Court has made it clear that "Act

only" policy does not cover any other kind of employees and

therefore someone who travels not being authorised agent in place

of owner of the goods and claims to be employee of the owner of

the goods cannot be covered by the statutory policy.

5. In the instant matter it is not in dispute that the

deceased was employed by one Nizamuddin Allabaksh Shaikh

respondent no.5 in the present appeal (respondent no.4 in the

claim petition). It is further not in dispute that, said Nizamuddin

Allabaksh Shaikh had hired the offending tempo from the owner of

the said tempo namely Haribhau Panditrao Dandge, respondent

no.3 in the claim petition and respondent no.4 in the preset appeal.

Admittedly, the offending tempo was hired by said Nizamuddin

Allabaksh Shaikh for the purpose of transportation of the sweet

limes and the deceased along with few other employees were

carried in the said tempo by said Nizamuddin Allabaksh Shaikh for

the purpose of plucking sweet limes. The alleged accident,

admittedly, happened after the sweet limes so plucked by the

deceased and his co-workers were loaded in the said tempo and the

tempo was proceeding towards the destination where the sweet

limes were to be delivered.

6. Section 147(1) (b) (i) clearly provides that so far as

4 FA 02.14

goods carrying vehicle is concerned, owner thereof is statutorily

obliged to insure the said vehicle so as to cover the risk of owner of

the goods or his authorised representative carried in the vehicle.

In the case in hand, as per the case made out by the claimants

themselves, deceased Rahul was neither the owner of the goods

which were being transported in the offending tempo nor he was

the authorised representative of the owner of the goods sought to

be transported in the said tempo. As proved by the evidence of the

claimants

themselves, deceased Rahul was

Nizamuddin Allabaksh Shaikh, who had hired the said tempo. Said an employee of

Nizamuddin Allabaksh Shaikh was admittedly not the owner of the

tempo involved in the accident. The tempo was owned by Haribhau

Panditrao Dandge. Admittedly, deceased Rahul was not employed

by said Haribhau Panditrao Dandge, owner of the tempo. It is thus,

evident that the risk of deceased was not covered under the policy

of insurance pertaining to the offending tempo.

7. The learned tribunal, however, only on the basis of the

fact that additional premium was paid by the owner of the tempo to

cover the risk of owner cum driver and W.C. risk of seven

employees, reached to the conclusion that risk of the deceased was

covered by the policy of insurance since deceased was carried in the

said tempo as a Labour. The learned tribunal, however, failed in

appreciating that, the policy does not cover the risk of all kinds of

5 FA 02.14

employees. The policy only covers risk of the employees of the

insured, either employed or engaged by him in a goods carrier and

it does not cover the risk of any other kind of employee. The

learned tribunal failed in appreciating the pleadings in the petition

as well as evidence on record which clearly shows that, deceased

Rahul was not an employee of respondent no.4, Haribhau Panditrao

Dandge, the owner of the tempo, but was the employee of

respondent no.5, Nizamuddin Allabaksh Shaikh, who had hired the

said tempo from ig Haribhau Panditrao Dandge. It is thus, evident

that the risk of the deceased was not covered under the policy of

insurance.

8. In the aforesaid circumstances, the appellant-insurance

company cannot be held liable to indemnify the insured. The

tribunal has erred in holding the appellant-insurance company

jointly and severally liable to pay the amount of compensation to

the claimants. The impugned order to that extent needs to be set

aside and is accordingly set aside. Consequently, the claim petition

stand dismissed against the appellant-insurance company. The

amount, if any, deposited by the appellant-insurance company

either in this court or before the tribunal shall be refunded to it with

interest accrued, if any. The appeal is allowed in the aforesaid

terms. No order as to costs.

    mub                                                        (P.R. BORA, J.)