Bombay High Court
New India Assurance Company Ltd vs Satyabhamabai Khema Ghule & ... on 24 October, 2016
Bench: P.R. Bora
1 FA Nos.566 & 567 of 1994
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO.566 OF 1994
The New India Assurance Company
Limited, having it's Head Office
at 87, Mahatma Gandhi Road,
Fort, Bombay-400 001 and a Branch
Office at Ahmednagar.
...APPELLANT
(Orig. Respondent No.2)
VERSUS
1. Smt. Kasturbai w/o Dadarado
Tonde, Age:53 years,
Occu.: Household,
R/o. Satewadi, Post- Naigaon,
Tq. Jamkhed, Dist. Ahmednagar,
2. Bhaskar s/o Dadarao Tonde,
Age:33 years, Occu.:Agriculture,
R/o. as above,
3. Sudam S/o Dadarao Tonde,
Age: 30 years, Occupation
and R/o. as above,
4. Harishchandra s/o Dadarao Tonde,
Age: 28 years, Occupation
and R/o. as above,
...RESPONDENTS
(Ori. Claimants)
5. Vasant s/o Kanhuji Meghdambar
Age Major, Occupation-Transport
Business, (Owner of Vehicle)
R/o. Mohori, Tq. Jamkhed,
Dist. Ahmednagar
...RESPONDENT
(Ori. Resp. No.1)
-----
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2 FA Nos.566 & 567 of 1994
Mr.A.B.Kadethankar, Adv. For Appellant;
Ms.Pooja Deshmukh, Adv. h/for Mr. Uday S.Malte, Adv.
For Resp.Nos.1 to 4;
Mr. A.B.Gatne, Adv. For Resp.No.5.
------
WITH
CROSS OBJECTION St.NO.175 OF 1995
IN
FIRST APPEAL NO.566 OF 1994
The New India Assurance Company
Limited, having it's Head Office
at 87, Mahatma Gandhi Road,
Fort, Bombay-400 001 and a Branch
Office at Ahmednagar.
...APPLICANT
(Orig. Respondent No.2)
VERSUS
1. Smt. Kasturbai w/o Dadarado
Tonde, Age:53 years,
Occu.: Household,
R/o. Satewadi, Post- Naigaon,
Tq. Jamkhed, Dist. Ahmednagar,
2. Bhaskar s/o Dadarao Tonde,
Age:33 years, Occu.:Agril.,
R/o. as above,
3. Sudam S/o Dadarao Tonde,
Age: 30 years, Occu.: &
R/o. as above,
4. Harishchandra s/o Dadarao Tonde,
Age: 28 years, Occu.: &
R/o. as above, ...RESPONDENTS
(Ori. Complainant)
5. Vasant s/o Kanhuji Meghdambar
Age Major, Occupation-Transport
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3 FA Nos.566 & 567 of 1994
Business, (Owner of Vehicle)
R/o. Mohori, Tq. Jamkhed,
Dist. Ahmednagar
...RESPONDENT
(Ori. Resp. No.1)
-------
Mr. A.B. Kadethankar, Adv. for Applicant;
Ms. Pooja Deshmukh, Advocate h/f.
Mr. U.S. Malte, Advocate for Respondent Nos.
1 to 4.
Mr. A.B. Gatne, Advocate for Respondent No.5.
ig WITH
FIRST APPEAL NO.567 OF 1994
The New India Assurance Company
Limited, having it's Head Office
at 87, Mahatma Gandhi Road,
Fort, Bombay-400 001 and a Branch
Office at Ahmednagar.
...APPELLANT
(Orig. Respondent No.3)
VERSUS
1. Satyabhamabai Khema Ghule,
Age:43 years, Occu.:Household,
work, R/o. Kharda, Tq. Jamkhed,
Dist. Ahmednagar,
2. Ramesh s/o Khemaji Ghule,
Age: 26 years, Occu.: Agril,
R/o. As above,
...RESPONDENTS
(Ori. Claimants)
3. Navnath s/o Kanhu Meghdambar,
Age:37 years, Occu.: Driver,
R/o. Mohari, Tq. Jamkhed,
Dist. Ahmednagar,
4. Vasant s/o Kanhuji Meghdambar
Age: Major, Occu.: Business,
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4 FA Nos.566 & 567 of 1994
R/o. as above.
...RESPONDENTS
(Ori. Res.Nos. 1 & 2)
----
Mr. A.B. Kadethankar, Adv. for Appellant;
Ms. Pooja Deshmukh, Advocate h/f.
Mr. U.S. Malte, Advocate for Respondent Nos.
1 & 2;
Respondent No.3 duly served;
Mr. A.B. Gatne, Advocate for Respondent No.4.
-----
ig CORAM : P.R.BORA, J.
RESERVED ON :30
th
August,2016
PRONOUNCED ON:24
th
October,2016
JUDGMENT:
1) The aforesaid two appeals are filed by
New India Assurance Company Ltd., challenging the
common Judgment and Award passed by Motor
Accident Claims Tribunal, Ahmednagar (for short,
the Tribunal) on 17th December, 1993 in MACP
No.173/1991 and MACP No.201/1991.
. Cross-objection is filed in First Appeal
No.566/1994, seeking enhancement in the amount of
compensation as awarded by the Tribunal in MACP
No.201/1991.
2) In view of the fact that the aforesaid
two appeals and cross-objection arise out of
common Judgment and Award delivered by the
Tribunal, common arguments were heard in all
these matters and I deem it appropriate to decide
these matters by a common reasoning.
3) Heard Shri Kadethankar, learned Counsel
appearing for the appellant - insurance company
in both the aforesaid appeals; Shri A.B.Gatne,
learned counsel appearing for Respondent No.5 in
FA No.566/1994 and Respondent No.4 in FA No.
567/1994, who is the owner of the vehicle
involved in the accident in question. Shri Uday
Malte argued on behalf of the Respondents in
Cross-objection.
4) The appellant - insurance company has
disputed its liability to indemnify the insured
on the ground that the vehicle was a goods
vehicle, and as per the terms of insurance
policy, insurance company was not liable to cover
the risk of passengers travelling through the
insured vehicle and so also not liable to cover
the risk of owner of the goods or the other
passengers working with him travelling along with
the goods in the insured vehicle at the time when
the said vehicle met with an accident.
. The aforesaid is the only objection
pressed by the appellant - insurance company in
exception to the impugned Judgment and Award.
5) Shri Kadethankar, learned Counsel
appearing for the appellant - insurance company,
submitted that though a specific plea was raised
by the insurance company before the Tribunal,
disputing its liability to indemnify the insured
on the aforesaid ground, the learned Tribunal for
erroneous reasons has rejected the contention of
the insurance company and has wrongly made the
insurance company liable jointly and severally
with owner of the offending vehicle. The learned
counsel placed his reliance on the following
judgments of the Hon'ble Apex court, -
i) Manager, National Insurance Co.Ltd.
Vs. Saju P.Paul and anr. - 2013 AIR
(SC) 1063;
ii) National Insurance Co.Ltd. Vs.
Cholleti Bharatamma & Ors. - 2008
AIR (SC) 484;
iii)New India Assurance Co.Ltd. Vs. Asha
Rani - (2003) 2 SCC 223;
iv) Ramesh Kumar Vs. National Insurance
Co. Ltd. - AIR 2001 SC 3363;
v) National Insurance Co. Ltd. Vs
Rattani and Ors. - (2009) 2 SCC 75;
6) Shri Gatne, learned Counsel appearing
for the owner of the motor vehicle involved in
the alleged accident, supported the impugned
Judgment and Award. The learned counsel
submitted that the offending tempo was
specifically hired for carrying luggage and
deceased Dadarao Tonde was travelling in the said
tempo as owner of the goods; whereas deceased
Khemji Ghule was travelling along with deceased
Dadarao to supervise the goods. The learned
counsel submitted that since the deceased were
travelling through the offending tempo along with
their goods, risk of both of them was fully
covered under the insurance policy and the
Tribunal has, therefore, rightly held the
insurance company jointly and severally liable to
pay the amount of compensation to the legal heirs
of both the deceased.
7)
After having heard the arguments of
learned counsel appearing for the respective
parties, it is revealed that most of the facts
are undisputed. It is not in dispute that the
tempo involved in the alleged accident was a
`goods career' and deceased Dadarao Tonde and
deceased Khemji Ghule were claimed to have been
travelling in the said tempo along with their
goods. From the material on record, it is
further revealed that when the accident had
happened along with deceased Dadarao Tonde and
Khemji Ghule, there were few more persons
travelling through the offending tempo.
8) It is the precise objection raised by
the appellant - insurance company that having
regard to the provisions of the Motor Vehicles
Act, 1988 (for short, the Act of 1988) as it
stood prior to amendments brought in the year
1994, the insurance company was not liable to
cover the risk of the passengers travelling in
goods carriage including the owner of the goods
or the persons travelling along with him for the
purpose of supervision of the goods.
9) To support his argument, the learned
Counsel relied upon the judgments of the Hon'ble
Apex court in the case of New India Assurance Co.
Ltd. Vs. Asha Rani - (2003) 2 SCC 223. The
learned Counsel more particularly referred to
paragraph 9 of the said judgment, which reads
thus, -
"9. In Satpal case [(2000) 1 SCC
237] the Court assumed that the
provisions of Section 95(1) of the
Motor Vehicles Act, 1939 are
identical with Section 147(1) of
the Motor Vehicles Act, 1988, as it
stood prior to its amendment. But a
careful scrutiny of the provisions
would make it clear that prior to
the amendment of 1994 it was not
necessary for the insurer to insure
against the owner of the goods or
his authorised representative being
carried in a goods vehicle. On an
erroneous impression this Court
came to the conclusion that the
insurer would be liable to pay
compensation in respect of the
death or bodily injury caused to
either the owner of the goods or
his authorised representative when
being carried in a goods vehicle
the accident occurred. If the Motor
Vehicles Amendment Act of 1994 is
examined, particularly Section 46,
by which the expression "injury to
any person" in the original Act
stood substituted by the expression
"injury to any person including
owner of the goods or his
authorised representative carried
in the vehicle", the conclusion is
irresistible that prior to the
aforesaid Amendment Act of 1994,
even if the widest interpretation
is given to the expression "to any
person" it will not cover either
the owner of the goods or his
authorised representative being
carried in the vehicle. The objects
and reasons of clause 46 also state
that it seeks to amend Section 147
to include owner of the goods or
his authorised representative
carried in the vehicle for the
purposes of liability under the
insurance policy. It is no doubt
true that sometimes the legislature
amends the law by way of
amplification and clarification of
an inherent position which is there
in the statute, but a plain meaning
being given to the words used in
the statute, as it stood prior to
its amendment of 1994, and as it
stands subsequent to its amendment
in 1994 and bearing in mind the
objects and reasons engrafted in
the amended provisions referred to
earlier, it is difficult for us to
construe that the expression
"including owner of the goods or
his authorised representative
carried in the vehicle" which was
added to the pre-existing
expression "injury to any person"
is either clarificatory or
amplification of the pre-existing
statute. On the other hand it
clearly demonstrates that the
legislature wanted to bring within
the sweep of Section 147 and making
it compulsory for the insurer to
insure even in case of a goods
vehicle, the owner of the goods or
his authorised representative being
carried in a goods vehicle when
that vehicle met with an accident
and the owner of the goods or his
representative either dies or
suffers bodily injury. The judgment
of this Court in Satpal case
therefore must be held to have not
been correctly decided and the
impugned judgment of the Tribunal
as well as that of the High Court
accordingly are set aside and these
appeals are allowed. It is held
that the insurer will not be liable
for paying compensation to the
owner of the goods or his
authorised representative on being
carried in a goods vehicle when
that vehicle meets with an accident
and the owner of the goods or his
representative dies or suffers any
bodily injury."
10) The judgment of the Hon'ble Apex court
in the case of Asha Rani (cited supra) has been
followed in all the subsequent judgments, wherein
the similar issue was involved.
11) In the instant case, it is not in
dispute that the accident, in question had
happened on 8.2.1991 i.e. before coming into
effect of the amendments of 1994. Motor vehicle
involved in the accident was admittedly a `goods
career'. It is further not in dispute that
according to the case of the original claimants
themselves deceased Dadarao Tonde was travelling
in the tempo as the owner of the goods, whereas
deceased Khemji Ghule was travelling along with
said Dadarao Tonde to supervise the goods. It is
further not in dispute that additionally there
were few other persons travelling through
offending tempo when the accident had happened.
12) As stated herein above, it was the
specific defence raised by the appellant -
insurance company that since the passengers were
carried through the offending tempo, which was
the goods carrier, the owner of the vehicle has
committed the breach of the policy conditions,
thereby exonerating the insurance company from
its liability to indemnify him. The learned
Tribunal though has observed that the passengers
for hire or reward could not have been allowed to
travel from the offending tempo and insurance
policy of the offending vehicle was not covering
the risk of such passengers on hire or reward,
held the insurance company liable jointly and
severally with the driver and owner of the
offending tempo observing that in the insurance
policy there was no specific condition of
restraining even the owner of the goods to travel
in the vehicle along with his goods. According
to the learned Counsel for the owner of the
vehicle, the Tribunal has rightly made the
observations, as above and rightly held the
insurance company liable to indemnify the
insured. However, in view of the law laid down
in the case of Asha Rani (cited supra), the plea
so raised on behalf of owner of the vehicle has
to be rejected. The learned Tribunal has
committed an error in accepting the said plea and
thereby holding the insurance company jointly and
severally liable with the driver and owner of the
offending tempo.
13) The material on record reveal that a
plea was raised by the owner of the vehicle that
deceased Dadarao Tonde was the owner of the
goods, which were being carried through the tempo
at the relevant time and deceased Khemji Ghule
was the person accompanying him for supervision
of the goods and as such, the risk was covered by
the insurance policy.
14) In view of the law laid down in the case
of Asha Rani (cited supra), the conclusions so
recorded by the Tribunal cannot be sustained. As
has been held by the Hon'ble Apex court in the
case of Asha Rani, the insurance company cannot
be held liable for paying the compensation to the
legal heirs and/or dependents of deceased owner
of the goods or his authorised representative
who suffered accidental death while travelling in
a Goods-vehicle.
15) For the reasons stated above, both the
appeals filed by the insurance company deserve to
be allowed. In so far as cross-objection is
concerned, no such material has been brought on
record by the applicant so as to cause
interference in the impugned Judgment and Award.
No case is made out by the applicant for
enhancing the amount of compensation. The cross-
objection being devoid of any merit, deserves to
be dismissed. In the result, the following
order, -
ORDER
I) First Appeal Nos.566/1994 and 567 are
allowed;
ii) M.A.C.P.Nos.173/1991 and 201/1991 stand
dismissed against the appellant - insurance
company;
iii) It will be open for the appellant -
insurance company to recover amount of
compensation, if any, paid by it to the original
claimants in satisfaction of the Awards passed in
the aforesaid claim petitions, from owner of the
vehicle along with interest @ 6% p.a.;
iv) The cross-objection is dismissed.
v) No order as to costs.
(P.R.BORA)
JUDGE
title - Kodgire
bdv/ Jt.
Fldr 20.10.16
