United India Insurance Company ... vs Mrs Draupada Shankar Rathod & ...
2017 Latest Caselaw 9518 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                             NAGPUR BENCH : NAGPUR


                           FIRST APPEAL NO.67 OF 2007


United India Insurance Company,
Wardha Branch, through its Regional 
Manager, Nagpur Regional Office, 
Shankar Nagar Square, Nagpur.                  ...            Appellant
                 - Versus -
1)  Mrs. Draupada w/o Shankar Rathod,
        aged about 25 years, occupation :
        labourer, 

2) Shankar s/o Nathu Rathod, aged
        about 30 years, occupation : labourer,

        both r/o  Hivalni, P.O. Adgaon, 
        Tahsil Pusad, District Yavatmal 
        (Original Petitioners).

3) Manoj @ Mahindra s/o Punjab Yawale
        (deleted).

4) Shri Bhaurao s/o Shankar Balsurat, since
        deceased, through legal representatives -

(a) Smt. Sumati wd/o Bhaurao Balsaraf,
        aged 58 years, 




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(b) Shri Prashant s/o Bhaurao Balsaraf,
        aged 36 years, 

(c) Shri Nitin s/o Bhaurao Balsaraf,
        aged 34 years, 

        All 4(a) to 4(c) r/o Pratap Nagar, 
        near Shitala Mata Mandir, old 
        R.T.O. Office, Wardha-442001.                      ...            Respondents
                                   -----------------
Shri B. Lahiri, Advocate for appellant. 
Shri Bharat Vora, Advocate for respondent nos.1 and 2. 
                           ------------------
                 Date of reserving the judgment      :     22/11/2017
                 Date of pronouncing the judgment :    12/12/2017

                                         CORAM :   P.N. DESHMUKH, J.
                                           DATED  :   DECEMBER 12,  2017
                            
JUDGMENT  :

Heard Shri Lahiri, learned Counsel for appellant and

Shri Vora, learned Counsel for respondent nos.1 and 2.

2) This appeal takes exception to the judgment and

award dated 21/7/2004 passed by the Motor Accident Claims

Tribunal, Wardha in Motor Accident Claim Petition

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No.150/2001 whereby respondent nos.1 and 2 are granted

amount of Rs.90,000/- as compensation inclusive of no fault

liability to be payable by appellant and owner of vehicle jointly

and severally.

3) Facts giving rise to the appeal can be narrated as

follows :

Respondent nos.1 and 2/claimants are parents of

deceased Devkrushna, who met with accident on 3/3/2001 at

the age of three years in a field involving tractor bearing

Registration No. MH 32/A 5650 owned by respondent no.4, as

he came to be crushed under said vehicle after having fallen

down from it. Respondent nos.1 and 2 have thus filed claim

petition for grant of compensation of Rs.1,00,000/-, which was

partially allowed by learned Tribunal awarding Rs.90,000/-

with interest at the rate of 9% per annum.

4) Before Tribunal, respondent no.4/owner of the

vehicle filed written statement (Exh.14) and did not dispute the

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relation of petitioners with deceased nor age of deceased,

however, denied that accident had occurred due to negligence

of tractor Driver. According to the case of respondent no.4,

accident took place due to negligence of petitioners, who had

negligently kept their small child on the tractor without taking

proper care when tractor was likely to be taken to field by its

Driver and as such, while tractor moved, the boy fell down and

met with accident wherein he suffered fatal injury and

succumbed to it while on way to Hospital. Thus, it is the case of

owner of vehicle that no liability can be fastened upon him as

Driver of the vehicle is in no way concerned with the cause of

accident.

5) Appellant/original respondent no.3/Insurer resisted

the claim petition on the ground of breach of policy condition

contending that tractor Driver was not possessing a valid driving

licence and that no liability can be fastened on it in view of the

fact that deceased was a gratuitous passenger and as such, was

not covered under the policy, which was limited only for its use

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for agricultural purpose. Respondent no.1, father of deceased,

examined himself and placed on record documents.

6) The learned Tribunal on considering the evidence and

documents on record held that deceased died as a result of

accident involving tractor on 3/3/2001 due to rash and

negligent driving by its Driver and claimants are entitled for

compensation of Rs.90,000/- along with interest at the rate of

9% per annum from the date of claim petition to be payable by

appellant and owner of tractor jointly and severally. Hence, this

appeal by original respondent no.3.

7) In view of facts involved in the appeal as aforesaid,

point which requires consideration is : if deceased boy

occupying tractor was unauthorised passenger as per policy

condition, whether appellant can be held responsible for grant

of compensation or direction can be issued to appellant to pay

the amount of compensation to claimants first and then to

recover the same from owner of tractor ?

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8)               Shri   Lahiri,   learned   Counsel   for   appellant,   has

submitted that deceased boy should be treated as unauthorised

and gratuitous passenger in view of the admitted fact that he

was traveling in a tractor, which is a goods vehicle and

essentially not meant for public transport and thus, was not

covered by the policy of insurance (Exh.27). The insurer,

however, has not disputed that the tractor involved in the

present case was duly insured vide cover note No.62970 dated

20/11/2000 from 20/11/2000 to 19/11/2001 on the date of

accident, which had taken place on 3/1/2001 and as such, was

insured. Thus, the only contention raised on behalf of

appellant is that since deceased was an authorised passenger

traveling in a goods vehicle, he was certainly not fare paying

passenger and as such, no liability can be saddled upon the

insurer inasmuch as even the policy (Exh.27) establishes that

Driver of the tractor alone is covered by the policy.

9)               Though in the written statement appellant had also





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raised ground of breach of policy condition stating that on the

day of accident, tractor Driver was not possessing a valid driving

licence, claimants have placed on record at Exh. 28 driving

licence wherefrom it is established that on the day of accident,

tractor Driver was issued with valid licence entitling him to

drive light motor vehicle (tractor). There is no other evidence

brought on record on this aspect. It is, therefore, found that on

the day of accident, tractor Driver was possessing a valid driving

licence and as such, there is no breach of policy condition on

this ground.

10) Shri Lahiri, learned Counsel for appellant, during the

course of arguments has relied upon judgments of Hon'ble Apex

Court in the case of -

(I) Oriental Insurance Co. Ltd. vs. Devireddy Konda

Reddy and others (2003 ACJ 468) wherein it is held that no

liability can be fastened upon Insurance Company when

passenger is traveling gratuitously or unauthorisedly in a goods

vehicle involved in the accident.

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(II)             Oriental   Insurance  Company  Ltd.   vs.  Brij   Mohan

and others (2007 (3) T.A.C. 20) wherein trolley attached to

the tractor involved in the accident was not insured in which

labourer engaged for digging earth to be carried in a tractor/

trolley for manufacture of brick kiln was traveling and as such,

was not held entitled for compensation from insured for the

injuries sustained by him and relying on the decision in New

India Assurance Co. Ltd. vs. Asha Rani and others {(2003) 2

SCC 223} and on exercising its extraordinary jurisdiction,

directed Insurance Company to first satisfy award and then

realise the amount from the owner of tractor and trolley by

further observing that Insurance Company would not be

required to initiate any separate proceedings for recovery of

amount.

In view of submissions as aforesaid, thus it is contended on

behalf of appellant that appellant Insurance Company be

exonerated from paying compensation.

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11)              In   the   backdrop   of   facts   in   the   appeal,   it   is   found

necessary to refer to the case of    Nati
                                        onal Insurance Co. Ltd.

vs. Baljit Kaur and others {(2004) 2 SCC 1) where in para 21

of its judgment it is held by Hon'ble Apex Court as follows :

"21. The upshot of the aforementioned discussions is that instead and in place of the insurer, the owner of the vehicle shall be liable to satisfy the decree. The question, however, would be as to whether keeping in view the fact that the law was not clear so long such a direction would be fair and equitable. We do not think so. We, therefore, clarify the legal position which shall have prospective effect. The Tribunal as also the High Court had proceeded in terms of the decision of this Court in Satpal Singh. The said decision has been overruled only in Asha Rani. We, therefore, are of the opinion that the interest of justice will be subserved if the appellant herein is directed to satisfy the award amount in favour of the claimant, if not already satisfied and recover the same from the owner of the vehicle. For the purpose of such recovery, it would not be necessary for the insurer to file a separate suit but it may initiate a proceeding before the executing Court as if the dispute between the insurer and the owner was the subject matter of determination before the Tribunal and the issue is decided against the owner

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and in favour of the insurer. We have issued the aforementioned directions having regard to the scope and purport of Section 168 of the Motor Vehicles Act, 1988, in terms whereof, it is not only entitled to determine the amount of claim as put forth by the claimant for recovery thereof from the insurer, owner or driver of the vehicle jointly or severally but also the dispute between the insurer on the one hand and the owner or driver of the vehicle owned in the accident inasmuch as can be resolved by the Tribunal in such a proceeding."

12) From the above pronouncement, it is thus noted that

law laid down is that Insurance Company would first satisfy the

award and then recover the amount from owner of the vehicle

by filing execution application before the Court without

requiring to file separate suit. In that view of the matter,

though in that case Insurance Company was not held liable to

the suit claim, it was required to first satisfy the suit claim and

then recover the amount from the owner of vehicle.

13) In view of the fact that at the time of accident

deceased boy was admittedly three years old, claimants are in

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any way entitled to amount of Rs.50,000/- on no fault liability.

The amount of compensation awarded is to the extent of

Rs.75,000/-, Rs.10,000/- for loss of love and affection and

Rs.5000/- towards funeral charges and accordingly claimants

are held entitled for just compensation of Rs.90,000/-.

Considering the facts as revealed from the impugned award

that the child had not entered the vehicle, but got hit by the

tractor and fell down and met with an accident, he cannot be

said to be a gratuitous passenger traveling unauthorisedly but

can be termed as a third party. Under Clause (g) of Section

145 of the Motor Vehicles Act, 1988 "third party" is defined

and includes the Government. The definition is inclusive

definition and is capable of wider import and thus, covers

persons between whom there is no privity of contract. In that

view of the matter and since already stated above, though it is

the case of appellant that Driver of offending tractor was not

possessing effective driving licence and in spite of claimants

placing on record driving licence of tractor Driver establishing

him to possess valid driving licence on the day of accident,

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since no steps are taken by appellant to dislodge such

evidence, petition cannot be dismissed for breach of policy

condition. Similarly, having considered the age of minor boy, it

is only the tractor Driver, who from the evidence of petitioner

no.1 is found negligent in not taking due care of minor child

while he was in the tractor. In that view of the matter and

since it is admitted that the tractor was duly insured on the day

of accident, claimants are held to be entitled for the

compensation as awarded by the learned Tribunal, which even

otherwise does not appear to be on higher side. Thus, the

contention of appellant that it is not liable to make payment of

compensation cannot be accepted.

14) Even otherwise, it is worth to mention that the

Legislature has insisted and made it incumbent on the user of a

motor vehicle to be armed with an insurance policy covering

third party risks, which is in conformity with the provisions

enacted by the Legislature. It is so provided in order to ensure

that the injured victims of automobile accidents or the

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dependents of the victims of fatal accidents are really

compensated in terms of money and not in terms of promise.

Such a benign provision enacted by the Legislature having

regard to the fact that in the modern age the use of motor

vehicles notwithstanding the attendant hazards, has become an

inescapable fact of life, has to be interpreted in a meaningful

manner, which serves rather than defeats the purpose of the

legislation. The provision has, therefore, to be interpreted in

the twilight of the aforesaid perspective.

15) Having considered above facts and circumstances,

there appears no substance in the appeal and same is,

therefore, dismissed. No order as to costs.

JUDGE

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