New India Insurance Co. Ltd vs Kavita Bhanudas Mokele & Anr
2017 Latest Caselaw 3944 Bom

                                                  1




                     IN THE HIGH COURT OF JUDICATURE AT

                                         BOMBAY

                                  BENCH AT AURANGABAD.


                               FIRST APPEAL NO.20 OF 2003


          New India Assurance Co.Ltd.
          through its Divisional Manager,
          Aurangabad, Dist.Aurangabad. ... Appellant.

                           Versus

          1. Kavita D/o Bhanudas Mokale,
          Age 12 years, Minor U/G of her
          father Bhanudas Fakira Mokale
          R/o Sarak Adgaon, Tq. and
          Dist.Aurangabad.

          2. Nalimkhan Nanhekhan Pathan,
          Age Adult, Occ.Business,
          R/o Ashoknagar, Shrirampur,
          Tq.Shrirampur,Dist.Ahmednagar. ... Respondents.

                                            ...
                                          WITH
                               FIRST APPEAL NO.34 OF 2003
                                          WITH
                                   C.A.NO.598 OF 2003


          New India Assurance Co. Ltd.
          through its Divisional Manager,
          Aurangabad, Dist.Aurangabad.    ... Appellant.

                           Versus

          1. Sou. Suman Bhanudas Mokale,
          Age 30 years, Occ.Labour,
          R/o Sarakadgaon, Tq. and
          Dist.Aurangabad.

          2. Nalimkhan Nanhekhan Pathan,




::: Uploaded on - 06/07/2017                      ::: Downloaded on - 07/07/2017 00:51:49 :::
                                                     2

          Age Adult, Occ.Business,
          R/o Ashoknagar, Shrirampur,
          Dist.Ahmednagar.                                 ... Respondents.


                                          WITH
                               FIRST APPEAL NO.21 OF 2003
                                          WITH
                                  C.A.NO.352 OF 2003.

          New India Assurance Co.Ltd.
          through its Divisional Manager,
          Aurangabad, Dist.Aurangabad.    ... Appellant.

                           Versus

          1. Lalita D/o Bhanudas Mokale,
          Age 12 years, Occ.Minor U/G of
          her father Bhanudas Fakira Mokale,
          R/o Sarak Adgaon, Tq. and Dist.
          Aurangabad.

          2. Nalimkhan Nanhekhan Pathan,
          Age Adult, Occ.Business,
          R/o Ashoknagar, Shrirampur,
          Tq.Shrirampur, Dist.Ahmednagar. ... Respondents.



                                              ...


          Mr.Mohit R.Deshmukh, advocate holding for
          Mr.S.G.Chapalgaonkar, advocate for Appellant.
          Mr.V.D.Patnoorkar, advocate for Respondent No.1.
          Mr.K.N.Lokhande, advocate for Respondent No.2.
                                   ...

                                   CORAM : V.K.JADHAV,J.

                                   Date     : 04.07.2017.

          ORAL JUDGMENT            :


          1.               Being       aggrieved    by   the      judgment          and

award passed by the learned Member of the Motor

Accident Claims Tribunal, Aurangabad, dt.

1.8.2002 in MACP No.166/1998, MACP No.165/1998

and MACP No.167/1998. The original Respondent

No.2 Insurer has preferred these three separate

appeals.

2. The Respondents-original claimants have

filed the aforesaid claim petitions before the

Tribunal for grant of compensation under

different heads. Said claim petitions, though

arising out of the same accident, the learned

Member of the Tribunal has disposed of those

three claim petitions by separate judgments and

as such the Respondent Insurer has preferred

these three appeals. All these three appeals are

taken for discussion together and dispose of by

this common judgment.

3. Brief facts giving rise to the three

appeals are as follows :

The Respondent No.1 had entered into

contract with Ashok Sahakari Sakhar Karkhana

regarding supply/transportation of labours and

also supply of bullock-carts. On 31.12.1997, the

Respondent No.1 was carrying sugarcane cutting

labours in his truck bearing registration No.MH-

28-B-5350. On way within the limits of village

Takli at about 2-30 p.m., the driver of the said

truck had driven it in excessive speed and rash

and negligent manner. The driver of the said

truck could not control the said truck and in

consequence of which the said truck had dashed a

tamarind tree. The claimants and others

travelling in the said truck were seriously

injured and admitted in the hospital at

Shrirampur. The claimants incurred the medical

expenses. The claimants have therefore,

approached the Tribunal by filing separate claim

petitions as aforesaid for grant of compensation

under various heads. It has been contended in

those claim petitions that Respondent No.1 who

happened to be the owner of the truck was also

driving the truck at the relevant time. He had

driven it in a rash and negligent manner and has

caused the accident. The said truck is insured

with the appellant and as such the Respondents

are jointly and severally liable to pay the

compensation.

The Respondent No.1 owner-cum-driver

has not filed his Written Statement and,

therefore, the hearing of the claim petition

ordered to proceed against him without any

Written Statement.

The appellant Insurer has strongly

resisted the claim petition by filing the Written

Statement. It has been contended that driver of

the truck was not having valid and effective

driving license to drive the truck. It has also

been contended that the risk of the claimants is

not covered under the policy as no extra premium

paid for carrying them in goods vehicle truck.

There has been clear cut breach of the policy

conditions and as such the appellant Insurer is

not liable to pay the compensation.

The claimants have adduced oral and

documentary evidence to substantiate their

contentions. Appellant/Insurer has examined

Mr.Sanjay Bhagwanrao Moholkar, Administrative

Officer of the Company to substantiate its

defence that under the act only policy the risk

of the passengers are not covered.

                           The       learned      Member      of       the       MACT,

          Aurangabad            by   three     separate     judgments          partly

allowed the petitions and thereby directed the

Respondent-owner and the appellant insurer to pay

jointly and severally the compensation as worked

out in each and every claim petition along with

interest at the rate of 9% p.a. from the date of

the petition till realisation of the entire

amount. Hence, these three separate appeals

preferred by the original Respondent insurer.

          4.               The          learned       counsel           for          the

          Appellant/Insurer                 submits   that      the       appellant

insurer has issued act only policy and the risk

of the driver and 7 employees only covered in the

policy by accepting extra premium. The learned

counsel submits that admittedly 40/50 persons

were travelling in the goods vehicle truck and

those persons are the sugarcane cutting labours

employed by Ashok Sahakari Sakhar Karkhana. The

learned counsel submits that it is an admitted

position that those persons were not the

employees of the Respondent-owner. The learned

counsel submits that even then the Tribunal

erroneously fastened the liability on the

appellant insurer to pay compensation jointly and

severally along with the Respondent-owner. The

learned counsel submits that during pendency of

the appeal, the Respondents-original claimants

have been permitted to withdraw some amount out

of the amount deposited before this Court. In

the event if the appellant Insurer succeeds in

the appeal, the appellant insurer would not

recover the said amount from the claimants and

the entire amount would be recovered from

Respondent-owner.

5. The learned counsel for the Respondent

-claimants submits that in terms of the policy

the risk of labours 7+1 is covered. The

Respondent No.1 owner had entered into a contract

with the said sugar factory for supplying

labours. It has not been specifically mentioned

in the policy document that the risk of the 7

employees of the owner of the vehicle is only

covered. The appellant insurer has received the

extra premium for 7 employees and as such the

risk is covered under the policy. The learned

Member of the Tribunal has therefore, rightly

fastened the liability on the appellant insurer

along with Respondent-owner to pay compensation

jointly and severally. No interference is

required. The learned counsel in alternate

submits that if the appellant insurer succeeds in

appeal, since the Respondents-claimants have

withdrawn some of the amount before this Court,

they may be permitted to withdraw the entire

amount deposited before this Court with liberty

to appellant insurer to recover the entire amount

from the Respondent No.1 owner.

6. The learned counsel for the Respondent-

owner submits that the risk of the labours is

covered by accepting extra premium and as such

the appellant insurer is liable to pay

compensation to the claimants. The learned

Member of the Tribunal has rightly fastened the

liability jointly and severally on the appellant

insurer and the Respondent-owner to pay the

compensation. No interference is required.

7. On careful perusal of the pleadings,

evidence and the impugned judgment and award

passed by the learned Member of the Motor

Accident Claims Tribunal, it appears that the

insurance policy is an act only policy. Extra

premium was taken to cover the risk of 7

employees travelling in the vehicle. The

Respondent-claimants have approached the Tribunal

with the pleadings that they were travelling in

the said vehicle truck as sugarcane cutting

labours. In view of the said pleadings, it is

clear that they were not the employees of the

Respondent and the said labours were being taken

to Ashok Sahakari Sakhar Karkhana under the

contract of supply, transportation of labours.

The learned Member of the Tribunal has however,

misinterpreted the things and observed that

because the Respondent No.1 entered into a

contract of supplying labours to the sugar

factory, the said labours are his employees and

as such risk of 7 such employees covered under

the said policy. It appears that the entire

approach of the Tribunal is erroneous. Though

the appellant insurer has examined the

Administrative Officer to explain the terms and

conditions of the policy, however, the learned

Member of the Tribunal has not considered

evidence of the said witness and further

interpreted the things in such erroneous manner.

By any stretch of imagination those 40/50 persons

travelling in the said truck can not be treated

as the employees of the Respondent/owner

including the present claimants. The Respondent-

claimants have accepted even in their oral

evidence that they are the sugarcane cutting

labours attached to the said sugar factory and

the Respondent owner was transporting them to the

said sugar factory under the contract. In view

of the same, the judgment and award passed by the

Tribunal to the extent fastening the liability on

the appellant insurer jointly and severally with

the Respondent owner is not sustainable. So far

as the quantum of compensation is concerned,

counsel appearing for the parties have not made

any submissions. In view of the above

discussion, I proceed to pass the following order

:

ORDER

i) First Appeal No.20 of 2003 (New India

Assurance Co.Ltd. Vs. Kavita D/o Bhanudas Mokale

and another), First Appeal No.21 OF 2003 (New

India Assurance Co. Ltd. Vs. Lalita D/o Bhanudas

Mokale and another), First Appeal No.34 of 2003

(New India Assurance Co. Ltd. Vs. Sou.Suman

Bhanudas Mokale and another) are hereby allowed.

No costs.

ii) The impugned judgment and award passed

by the learned Member of the Motor Accident

Claims Tribunal, Aurangabad in MACP No.166/1998,

MACP No.165/1998 and MACP No.167/1998 is hereby

quashed and set aside to the extent that

Respondent No.2 insurer is jointly and severally

liable to pay compensation to the claimants.

iii) Rest of the judgment directing the

Respondent-owner to pay compensation stands

confirmed.

iii) Award be drawn up accordingly.

iv) The appellant insurer shall not recover

the compensation amount from the claimants which

is withdrawn by them during the pendency of the

appeals. The appellant insurer is at liberty to

recover the entire amount from the Respondent-

owner for which no separate proceedings are

required to be initiated.

v) Balance amount shall be refunded to the

appellant insurer forthwith.

vi) All First Appeals are accordingly

disposed of. The Civil Applications are also

disposed of.

(V.K.JADHAV,J.)

asp/office/Fa20.03