Bombay High Court
New India Assurance Co. Ltd vs Sk Gulam Rasool Sk Amir And Ors on 2 March, 2016
Bench: T.V. Nalawade
934
-1-
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 1779 OF 2007
1] New India Assurance Company Limited
Having its Head and Registered Office
At New India Assurance Building,
87, M.G. Marg, Fort, Mumbai 1. .. APPELLANT
VERSUS
1] Sk. Gulam Rasool s/o Sk. Amir
age about 30 years, occ. Business
R/o Borgaon Sarwani, Tq. Sillod,
Dist. Aurangabad.
2] Niyanatkhan S/o Sharifkhan Pathan
age 49 years, occ. Owner of vehicle
R/o Amla Wahegaon, Tq. Georai
Dist. Beed.
3] Sk. Shagir s/o Sk. Shabir
age 39 years, occ. Driver
R/o as above. .. RESPONDENTS
...
Shri S.L.Kulkarni,Adv. For appellants
Shri V.D.Patnoorkar,Adv. For respondent no.1
Shri S.S.Chapalgaonkar, Adv. For respondent no.2
Shri K.M.Nagarkar,Adv. For respondent no.3.
...
WITH
FIRST APPEAL NO. 338/2008
1] New India Assurance Company Limited
Having its Head and Registered Office
At New India Assurance Building,
87, M.G. Marg, Fort, Mumbai -1. .. APPELLANT
VERSUS
1] Sk. Shabbir s/o Sk. Rahiman
age about 34 years, occ. Business
R/o Borgaon Sarwani, Tq. Sillod,
Dist. Aurangabad.
2] Niyanatkhan s/o Sharifkhan Pathan
age 49 years, occ. Owner of vehicle
R/o Amla Wahegaon, Tq. Georai
Dist. Beed.
3] Sk. Shagir s/o Sk. Shabir
age 39 years, occ. Driver
r/o as above. .. RESPONDENTS
WITH
FIRST APPEAL NO. 217/2008
1] New India Assurance Company Limited
Having its Head and Registered Office
At New India Assurance Building,
87, M.G. Marg, Fort, Mumbai -1 .. APPELLANT
VERSUS
1] Sk. Rashid s/o Sk. Rahiman
age 27 years, Occ. Business and Labour
R/o Borgaon Sarwani, Tq. Sillod,
Dist. Aurangabad.
2] Niyanatkhan s/o Sharifkhan Pathan
age 49 years, occ. Owner of vehicle
R/o Amla Wahegaon, Tq. Georai
Dist. Aurangabad.
3] Sk. Shagir s/ Sk. Shabir
age 39 years, occ. Driver
r/o as above. .. RESPONDENTS
...
WITH
FIRST APPEAL NO. 216/2008
1] New India Assurance Company Limited
Having its Head and Registered Office
At New India Assurance Building
87, M.G. Marg, Fort, Mumbai -1 .. APPELLANT
VERSUS
1] Syed Yusuf S/o Syed Ashique
Age about 37 years, occ. Business & labour
R/o Borgaon Sarwani, Tq. Sillod,
Dist. Aurangabad.
2] Niyanatkhan s/o Sharifkhan Pathan
age 49 years, occ. Owner of vehicle
R/o Amla Wahegaon, Tq. Georai
Dist. Beed.
3] Sk. Shagir S/o Sk. Shabir
age 39 years, occ. Driver
R/o as above. .. RESPONDENTS
...
WITH
FIRST APPEAL NO. 213/2008
1] New India Assurance Company Limited
Having its Head and Registered Office
At New India Assurance Building,
87, M.G. Marg, Fort, Mumbai 1 .. APPELLANT
VERSUS
1] Anish Shaha s/o Yunus Shaha
age 27 years, occ. Business and Labour
R/o Borgaon Sarwani, Tq. Sillod,
Dist. Aurangabad.
2] Niyanatkhan s/o Sharifkhan Pathan
age 49 years, occ. Owner of vehicle
R/o Amla Wahegaon, Tq. Georai
Dist. Beed.
3] Sk. Shagir /so Sk. Shabir
age 39 years, occ. Driver
R/o as above. .. RESPONDENTS
...
Shri S.L.Kulkarni,Adv. For appellants
Shri V.D.Patnoorkar,Adv. For respondent no.1
Shri S.S.Chapalgaonkar, Adv. For respondent no.2
Shri K.M.Nagarkar,Adv. For respondent no.3.
..
CORAM : T.V.NALAWADE
DATED : 2ND MARCH,2016
JUDGMENT :-
The Appeals are filed by insurance company against
judgments and awards of claim petitions which were pending before
claims tribunal, Auragnabad. All the claims were filed by respective
respondents of the appeals for compensation in respect of injuries
sustained by them in motor vehicle accident. Present appeals are
filed only on one ground viz., the vehicle involved in the accident was
goods carrier and according to insurance company the claimants
were travelling in the vehicle as fare paid passengers. Both sides are
heard.
2] The accident took place on 26/5/2003. The vehicle involved is
Tata 407 vehicle bearing No.MH-23-2832. After the accident, report
was given by one of the persons who was present in the vehicle to
police that 20-25 persons of his village were taking sheep and goats
which were around 40-50 from village to Wadod bazar for selling the
sheep and goats in the market. This vehicle turned turtle and all the
claimants sustained injuries in the accident. Crime was registered on
the basis of this report for offences punishable under Sections 279,
337, 427 of IPC and Section 134 r.w. 177 of Motor Vehicles Act.
3] Record like form AA is produced to show that the vehicle was
registered as goods carrier and it was insured with respondent no.2
insurance company. In spot panchanama, there is no mention of
sheep and goats, though the report was given that some sheep and
goats were also injured. But substantive evidence is given by all the
claimants that they were taking their sheep, goats in the vehicle as
owner of goods.
4] In the written statement, insurance company had taken
defence that the vehicle was not insured and there is no question of
liability of insurance company. Another defence was taken that in
goods carrier 20-22 persons were travelling as passengers and there
has been breach of condition of policy and insurance company
cannot be made liable to indemnify the owner.
5] Aforesaid defence was taken by insurance company but no
evidence at all is given by insurance company to prove the aforesaid
defence. On the record, there is only copy of FIR and there is
substantive evidence of the claimants of aforesaid nature. In view of
these circumstances, there was no alternative before tribunal than to
hold that the claimants were present in the vehicle as owner of
goods. The learned counsel for appellant placed reliance on the case
reported in 2007 AIR SCW 6665 in the case of Smt.Thokchom
Ongoi Sangeeta and another V/s Oriental Insurance Co. Ltd. And
Ors.
The Apex Court has laid down that if the passengers are
travelling in goods carriage, insurer cannot be held liable to indemnify
the owner. There cannot be any dispute over the proposition. Each
case is required to be decided on facts and circumstances of that
case. In view of the aforesaid circumstances of the present case,
this Court holds that there are no merits in the appeals.
6] In the result, all the appeals are dismissed. Statutory amount if
any deposited by insurance company at the time of appeal is to be
paid to the claimants.
7] In view of disposal of appeals, Civil Applications are disposed
of.
(T.V.NALAWADE,J.)
umg/
