Bombay High Court
Bharat Piraji Jadhav And Another vs Rajkumar Baliram Suryawanshi And ... on 3 March, 2016
Bench: T.V. Nalawade
1 FA 2631 of 2013
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
First Appeal No.2631 of 2013
1) Bharat S/o Piraji Jadhav,
Age 55 years,
Occupation : Driver,
R/o Shastri Nagar, Parbhani,
Taluka Parbhani.
2) Sayyed Sujaoddin S/o Nizamoddin
Khatib,
Age 70 years,
Occupation : Owner of Tanker,
R/o Datta Nagar, Nilanga,
Taluka Nilanga. .. Appellants.
Versus
1) Rajkumar S/o Baliram Suryawanshi,
Age 45 years,
Occupation : Labour,
R/o Milind Nagar, Nilanga,
District Latur.
2) Komal w/o Rajkumar Suryawanshi,
Age 35 years,
Occupation & R/o As above.
3) Anamika D/o Rajkumar Suryawanshi,
Age 6 years, occupation: Nil,
under guardianship of real
mother, claimant No.2.
4) United India Insurance Co. Ltd.
Opposite Gorakshan,
Tilak Nagar, Main Road, Latur. .. Respondents.
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2 FA 2631 of 2013
Shri. Ravibhushan P. Adgaonkar, Advocate, for appellants.
Shri. S.B. Gastgar, Advocate, for respondent Nos.1 to 3.
Shri. S.S. Rathi, Advocate, for respondent No.4.
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CORAM: T.V. NALAWADE, J.
DATE : 3rd MARCH 2016
JUDGMENT:
1)
The appeal is filed by owner of the vehicle
against the judgment and award of Claim Petition No.29 of
2009 which was pending before the Claim Tribunal
Nilanga. As the insurance company is exonerated, it is not
asked to indemnify the owner, the owner has challenged
the decision. Heard both sides.
2) The accident took place on 4-6-2008. Deceased
Priyanka was aged about 14 years and she was daughter
of claimant Nos.1 and 2. It is contended that at the
relevant time the deceased was present in the truck-
tanker baring No.MH-11/A-5498 as the employee and she
was proceeding to the place of work. The tanker was
being used for carrying tar. The tanker turned turtle and
3 FA 2631 of 2013
Priyanka died in the accident. In claim petition filed under
section 166 of the Motor Vehicles Act compensation of
Rs.2.5 lakh was claimed against the driver, owner and
insurance company of aforesaid vehicle. The Tribunal has
awarded compensation of Rs.1,84,500/- on the principle of
fault but the insurance company is exonerated by holding
that age of the deceased was only 14 years and she could
not have been employed as a labour on such work.
3) To substantiate the claim, mother has given
evidence which is as per the aforesaid contentions. The
deceased was sitting in the cabin of the truck-tanker. In
the cross examination evidence is given by the mother
that deceased was getting Rs.70/- per day and she was
expected to spread the tar on the road after going to the
place where the work was going on. At one place she
admitted in the cross-examination that she was the
passenger but the evidence as a whole needs to be read
and the evidence as a whole shows that she was present
in the vehicle as a labour of the owner. In police papers
there is mention that labours were proceeding in the
tanker for doing the work of construction of road.
4 FA 2631 of 2013
4) Copy of insurance policy is on the record and it
shows that at the relevant time the vehicle was insured
with respondent No.3. Premium in respect of 6 persons
was paid for giving coverage under the WC Act. Learned
counsel for the insurance company submits that in view of
Rule 108 of the Maharashtra Motor Vehicles Rules no
person except driver and cleaner could have been allowed
to travel in the truck-tanker and so it needs to be
presumed that risk of the deceased was covered. In view
of the contents of the policy this Court holds that this
submission made for the insurance company is not
acceptable. When the insurance given had the cover to
the employees of the owner, now it cannot deny the
liability by showing some rules made by the State
Government under the Motor Vehicles Act. Other
submission was made by the learned counsel for the
insurance company that the age of the deceased was
around 14 years and she could not have been employed
for such work. This contention is also not acceptable. The
age is shown as about 14 years in the post mortem report.
The parents are illiterate. It is social and beneficial
legislation and so it needs to be presumed that the
5 FA 2631 of 2013
deceased had completed 14 years of age. Further owner
of the vehicle has filed written statement and he has
admitted that he had employed the deceased as a labour.
Even if the deceased was below 14 years of age, this
Court holds that such defence could not have been
considered. If she was really below age of 14 years as per
the defence of the insurance company, in such cases
person employing child labour can be penalised but the
victims cannot be denied the compensation on that
ground.
5) In view of the aforesaid circumstances this
Court holds that the risk to the deceased was covered
under the policy and the deceased was present in the
vehicle as employee of the owner. The Tribunal has
committed error in exonerating the insurance company.
In the result, following order is made :-
6) The appeal is allowed. The judgment and award
of the Tribunal exonerating the insurance company and
dismissing the claim against the insurance company is
hereby set aside. The claim filed against the insurance
6 FA 2631 of 2013
company is allowed. Respondent Nos.1 to 3 to jointly and
severally pay the compensation awarded by the Tribunal.
Disbursement is to be made as per the award of the
Tribunal. Award to be modified accordingly.
7) Learned counsel for the insurance company
wants to challenge the decision and for that he wants
time. Time of 5 weeks is granted.
Sd/-
(T.V. NALAWADE, J. )
rsl
