Bombay High Court
The Assistant Manager, United ... vs Smt. Sitabai Wd/O Madhukarrao ... on 30 March, 2016
Bench: A.S. Chandurkar
fa78.07.odt 1/5
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
FIRST APPEAL NO.78 OF 2007
APPELLANT: The Assistant Manager, United India
Insurance Company Limited, through
(Original
the regional Manager Nagpur Regional
Respondent
Office Shankar Nagar Square, Nagpur.
No.2)
-VERSUS-
RESPONDENTS: 1. Smt. Sitabai wd/o Madhukarrao
ig Mandhalkar, aged about 50 year, Occ.
(On R.A.)
Household,
2. Ku. Bhavna d/o Madhukar Mandhalkar,
aged about 30 years, occ. Student,
3. Avi S/o Madhukarrao mandhalkar, aged
about 26, Occ. Student,
4. Ramdas S/o Trimbak patil, aged Major,
r/o 800, Sudampuri, Umred Road,
Nagpur (Original Respondent No.1)
Shri D. N. Kukday, Advocate for the appellant.
Respondents served.
CORAM: A.S. CHANDURKAR, J.
DATED: 30
MARCH, 2016.
th
ORAL JUDGMENT :
1. This appeal filed under Section 173 of the Motor Vehicles
Act, 1988 (for short, the said Act) takes exception to the judgment of the
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Motor Accident Claims Tribunal, Nagpur dated 17-7-2006 in Claim
Petition No.101/1996 whereby the appellant and the owner of the
vehicle in question have been held jointly and severally liable to pay
compensation of an amount of Rs.3,00,000/- to the respondent
Nos.1 to 3.
2. The respondent No.4 is the owner of motor vehicle bearing
No.MP A-6255. On 11-9-1995, the respondent No.4 who was driving the
vehicle alongwith one Madhukarrao Mandhalkar who was travelling as a
pillion rider met with an accident resulting in death of said
Madhukarrao. His legal heirs filed proceedings under Section 166 of the
said Act seeking compensation of an amount of Rs.3,00,000/-. The
claim was contested by the appellant on the plea that the pillion rider
was not covered under the policy of Insurance. By the impugned
judgment, the Claims Tribunal allowed the claim petition and awarded
compensation of Rs.3,00,000/-.
3. Shri D. N. Kukday, learned Counsel for the appellant
submitted that the policy in question was an "Act Policy". There was no
premium paid to cover the risk of the pillion rider. It was therefore
submitted that the Claims Tribunal could not have saddled the liability
on the appellant by treating the pillion rider as a third party. He
submitted that though a finding is recorded by the Claims Tribunal that
the insurance policy was an "Act Policy", it relied upon the judgment of
learned Single judge in case of National Insurance Company Ltd. Vs.
Prakash Dudhankar 2006 (1) Mh.L.J. 601 while issuing a direction to the
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appellant to first pay compensation and then recover the same from the
owner. He submitted that thereafter, the Division Bench in Traders Pvt.
Ltd. Vs. Sunanda 2009(1) Mh.L.J. 898 has held that the aforesaid view
was not the correct view and that in absence of any statutory liability, a
direction to pay the amount of compensation and recover the same from
the owner could not have been issued. It is therefore submitted that the
direction to that extent issued by the Claims Tribunal deserves to be set
aside.
4. There is no appearance on behalf of the respondents
though they have been duly served. However, with the assistance of the
learned Counsel for the appellant, I have perused the records and I have
also gone through the impugned judgment.
5. The following point arises for consideration:
Whether the appellant could have been directed to pay the
amount of compensation first and then recover the same from the owner
even when the risk was not covered?
6. It is not in dispute that the Insurance Certificate Exhibit-39
indicates that the policy in question is an "Act Policy". Only the risk of a
third person has been covered. No extra premium was paid to cover the
risk of the pillion rider. It is further not in dispute that said
Madhukarrao was travelling as a pillion rider when the vehicle met with
an accident.
7. In National Insurance Company Limited (supra), the learned
Single Judge held that an insurer could not be held liable to pay
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compensation to a passenger travelling in a goods vehicle. However,
directions were issued to the Insurance Company to first satisfy the
award and then recover the same from the owner of the vehicle. After
this judgment was rendered on 8-8-2005, the Hon'ble Supreme Court in
United India Insurance Co. Ltd. Shimla vs. Tilak Singh and others II
(2006) ACC 1 held that where extra premium is not paid and the policy
in question is a statutory policy, the same would not cover the risk of a
gratuitous passenger. The Division Bench in Traders Pvt. Ltd. (supra)
after considering the various decisions of this Court as well as the
Hon'ble Supreme Court held that the view as taken by the learned Single
judge in National Insurance Company Ltd. (supra) was not the correct
view and that a direction to pay the amount of compensation and then
recover the same could not be issued when in law the Insurance
Company was not liable to pay the compensation.
8. From the aforesaid, it is clear that the basis on which the
Claims Tribunal had issued directions to the appellant to pay amount of
compensation first and then recover the same would not be a valid
direction in absence of any legal liability of the insurer. The legal
position has since undergone a change. In that view of the matter, the
point as framed is answered by holding that the Claims Tribunal could
not have issued directions to the Insurance Company to first satisfy the
award and then recover the same from the owner.
9. Accordingly, the following order is passed:
(1) The judgment dated 17-7-2006 in Claim Petition
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No.101/1996 is partly modified. It is held that it is only the owner of
the vehicle in question - respondent No.4 who is liable to pay the
amount of compensation. The appellant is absolved of its liability.
(2) The appellant would be entitled to receive back the amount
of statutory deposit along with interest accrued thereon.
(3) The first appeal is allowed in aforesaid terms with no order
as to costs.
ig JUDGE
//MULEY//
