Bombay High Court
The National Ins Co Ltd vs Mrs Latabai Manikrao Kolhe & Ors on 10 July, 2017
Bench: V.K. Jadhav
1 fa 583.2005+ca.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 583 OF 2005
WITH
CA/7476/2005 IN FA/583/2005
National Insurance Co. Ltd.,
having its Head Office and Registered
Office at 3, Middleton Street, Kolkatta,
a Branch Office at Hazari Chambers,
Station Road, Aurangabad, through
the Divisional Manager, Aurangabad.
..Appellant../
orig respondent 2
VERSUS
1. Latabai w/o Manikrao Kolhe,
age 45 yrs, Occ. Household,
R/o Gurupimpri, Tq. Ghansawangi,
Dist. Jalna.
2. Avinash s/o Manikrao Kolhe,
age 19 yrs, Occ. Agriculture,
R/o Gurupimpri, Tq. Ghansawangi
Dist. Jalna.
3. Kiran s/o Manikrao Kolhe,
age 13 yrs, Occ. Student, a minor
u/g of his natural mother,
Latabai Kolhe. ...Respondents..
(Orig claimants 1 to 3)
4. Rama s/o Hemaji Thangde,
age major, Business, R/o Awalgaon,
Tq. Ghansawangi, Dist. Jalna.
5. Baban s/o Narayan Jadhav,
age 36 yrs, Occ. Driver,
R/o Sevgul Tanda, Tq. Ghansawangi,
Dist. Jalna. ...Respondents..
aaa/-
::: Uploaded on - 11/07/2017 ::: Downloaded on - 13/07/2017 00:43:32 :::
2 fa 583.2005+ca.odt
...
Advocate for Appellant : Mr Rupesh Bora h/f P P Bafna
Advocate for Respondents 1-3 : Mr R V Gore
Advocate for Respondents 4,5 : Mr Prasad Jadhavar h/f
Mr V J Dixit
...
CORAM : V.K. JADHAV, J.
Dated: July 10, 2017
...
ORAL JUDGMENT :-
1. Being aggrieved by the judgment and award
passed by the Member, Motor accident Claims Tribunal,
Jalna dated 8.2.2005 in M.A.C.P. No.125/2002, the
original respondent no.3 insurer has preferred this
appeal.
2. Brief facts, giving rise to the present appeal, are as
follows :-
a] On 23.2.2002 deceased Manikrao Kolhe started
travelling in the matador bearing registration No.MH-21-
6871 owned by respondent no.1, driven by respondent
no.2 and insured with present appellant for going to
Pandharpur from his village Gurupimpri. On way,
respondent-driver driven said vehicle in fast speed and
as such lost control over it. In consequence of which,
aaa/-
3 fa 583.2005+ca.odt
said vehicle turned turtled and fell down in the right
side ditch. Deceased Manikrao and some other persons
died on the spot and other passengers also seriously
injured in the said accident. The claimants-legal
representatives approached the Tribunal by filing
M.A.C.P. No.125/2002 for grant of compensation under
the various heads.
b] Respondent nos. 1 and 2 owner and driver have
resisted the claim petition by filing written statement. It
has been denied that, driver of said vehicle had driven
the vehicle in rash and negligent manner. It has been
contended that, deceased Manikrao was about 75 years
of age and as such, he was non earning member and
none was depending on his income. In the alternate, it
has been contended that vehicle is validly insured with
appellant-insurer and as such, the appellant-insurer is
liable to pay the compensation.
c] The appellant-insurer has strongly resisted the
claim petition by filing his written statement. It has
aaa/-
4 fa 583.2005+ca.odt
been contended that, driver of the said matador was not
having valid and effective driving licence and the
passengers were travelling in goods vehicle and as such
there has been breach of the specified conditions of the
policy. The appellant-insurer is thus not liable to pay
the compensation.
d] The respondents-claimants have adduced oral and
documentary evidence in support of their contentions.
The respondent-owner has not adduced any evidence.
The appellant-insurer has placed on record the policy
copy, however, has not adduced any oral evidence.
e] The learned Member of the Tribunal, Jalna has
partly allowed the application and thereby directed the
respondent-owner and driver and the appellant-insurer
to pay the compensation of Rs.1,65,500/- jointly and
severally to the claimants. Hence, this appeal by the
insurer.
3. Learned counsel for the appellant-insurer submits
that, some 35 to 40 persons were travelling in a goods
aaa/-
5 fa 583.2005+ca.odt
vehicle. They were travelling as a passenger for visiting
pilgrimage of Pandharpur. Same is evident from the
contents of FIR Exh.4. Learned counsel submits that,
respondent-claimant no.1 has made departure from the
pleadings and adduced evidence to the effect that owner
had gone to the house and requested the deceased to
accompany the driver. On the other hand, respondent-
owner and driver in their written statement have not
stated anything about it. Learned counsel submits that,
there is clear cut breach of the conditions of the policy.
Even, in paragraph no.7 of the judgment, the Tribunal
has referred the policy and most particularly, condition
no.3 of the policy, wherein it is mentioned that the
vehicle cannot be used for carrying passengers except
employees other than driver not exceeding six in all.
The learned Member of the tribunal has misconstrued
said policy condition no.3 and further observed that
said condition authorizes to carry six passengers in the
vehicle. Even, in the same paragraph tribunal has
observed that, passengers died in the accident might be
coming within the said first six numbers of passengers.
aaa/-
6 fa 583.2005+ca.odt
Learned counsel submits that, Tribunal has recorded
perverse finding. The appellant-insurer is not liable to
pay any compensation.
4. Learned counsel for respondents-original
claimants submits that, owner of the vehicle had come
to the house of the deceased and requested him to
accompany the driver. Deceased Manikrao was not
travelling in the said vehicle as a passenger. Learned
counsel submits that, it is a welfare legislation and thus
by interpreting condition no.3 of the policy correctly, the
Tribunal has fastened the liability on the appellant-
insurer jointly and severally alongwith respondent-
owner.
5. Learned counsel in order to substantiate its
contentions, placed his reliance on a case United India
Insurance Company Ltd., Vs. K M Poonam reported in
2011 AIR (SCW) 2802. Learned counsel submits that,
in some what identical facts, the Supreme Court
fastened liability on the insurer to pay the compensation
aaa/-
7 fa 583.2005+ca.odt
to the legal representatives of the occupants of the
vehicle involved in the accident.
6. Learned counsel for respondent owner submits
that, the tribunal has considered the policy and
particularly condition no.3 in its right context and
accordingly fastened the liability on the appellant-
insurer to pay the compensation to the claimants. No
interference is required.
7. On careful perusal of the pleadings, evidence and
judgment and award passed by the Tribunal, it appears
that, cousin of deceased Manikrao has lodged the
complaint in the concerned police station and on the
basis of his complaint, crime no.73/2002 came to be
registered. On perusal of the contents of FIR Exh.4, it
appears that, more than 23 persons were travelling in a
goods vehicle tempo from village Gurupimpri to
Pandharpur. As per the pleadings by the claimants,
deceased Manikrao was proceeding from village
Gurupimpri for going to his village Pandharpur.
aaa/-
8 fa 583.2005+ca.odt
However, deceased Manikrao was hailing from village
Gurupimpri and the tribunal has rightly observed that,
he was not going to his village Pandharpur as such. In
the oral evidence, however, respondent-original claimant
Latabai has improved the story and deposed before the
tribunal that owner of the said matador i.e. respondent
no.1 had come to her husband and asked him to
accompany the driver of matador to Pandharpur.
Though respondent-owner has not stated so in his
written statement, even assuming that deceased
Manikrao had boarded said matador at the request of
respondent owner, neither he can be treated as
employee of respondent no.1, nor as a gratuitous
passenger. On perusal of policy exh.4/8, it is clear that
use of the vehicle is prohibited for carrying passengers
except employees other than driver not exceeding six in
all. In absence of any pleadings/evidence, it cannot be
presumed that deceased Manikrao was travelling in the
said vehicle as an employee of respondent-owner. It is
true that, burden is on the appellant-insurer to
substantiate its defence, however, said burden can be
aaa/-
9 fa 583.2005+ca.odt
discharged by adducing oral or documentary evidence, if
any, or even by relying upon the oral/documentary
evidence adduced by the other side.
8. In the instant case, on the basis of pleadings,
evidence and documents placed on record no inference
could be drawn that deceased Manikrao was travelling
in the goods vehicle as an employee of respondent-
owner. Further, deceased Manikrao was more than 75
years of age and, it is difficult to accept his status as an
employee of respondent owner. It is nobody's case that
deceased Manikrao was travelling in the said vehicle as
an employee. However, the learned Member of the
Tribunal without any basis made observations that,
passengers died in the accident might be coming within
the said first six numbers of the passengers. The
learned Member of the Tribunal with this observations
held that there is no breach of the policy conditions on
the part of the respondent-owner of the vehicle. The
approach of the tribunal is not only erroneous but the
Tribunal under the garb of welfare legislation has
aaa/-
10 fa 583.2005+ca.odt
stretched the things to the extent and misconstrued the
policy conditions and without any basis recorded such
finding. In the result, the judgment and award passed
by the tribunal is liable to be quashed and set aside to
that extent.
9. Learned counsel appearing for the respondent
owner has not made any submission on the point of
quantum of compensation.
10. In a case United India Insurance Company Ltd.,
Vs. K M Poonam (supra), relied upon by the learned
counsel for respondents-original claimants, facts are
altogether different. In paragraph no.24 of the
judgment, the Supreme Court has made following
observations :-
"24. The liability of the insurer, therefore, is confined to the
number of persons covered by the insurance policy and not
beyond the same. In other words, as in the present case, since
the insurance policy of the owner of the vehicle covered six
occupants of the vehicle in question, including the driver, the
liability of the insurer would be confined to six persons only,
notwithstanding the larger number of persons carried in the
vehicle. Such excess number of persons would have to be
treated as third parties, but since no premium had been paid in
the policy for them, the insurer would not be liable to make
payment of the compensation amount as far as they are
concerned. However, the liability of the Insurance Company to
make payment even in respect of persons not covered by the
insurance policy continues under the provisions of sub-section (1)
aaa/-
11 fa 583.2005+ca.odt
of Section 149 of the Act, as it would be entitled to recover the
same if it could prove that one of the conditions of the policy had
been breached by the owner of the vehicle. In the instant case,
any of the persons travelling in the vehicle in excess of the
permitted number of six passengers, though entitled to be
compensated by the owner of the vehicle, would still be entitled to
receive the compensation amount from the insurer, who could
then recover it from the insured owner of the vehicle."
11. In the above case, the insurance policy of the
owner of the vehicle covered six occupants of the vehicle
in question, including driver, and as such liability of the
insurer would be confined to six persons only,
notwithstanding the large number of persons carried in
the vehicle. In the backdrop of these facts, the Supreme
Court held that any of the persons travelling in the
vehicle not exceeding of permitted number of six
passengers, though entitled to be compensated by the
owner of the vehicle, would still be entitled to receive the
compensation amount from the insurer, who could then
recover it from the insured owner of the vehicle.
In the instant case, no such direction can be given
for the reason that deceased Manikrao was not
travelling in the said vehicle as an employee of the
respondent owner and he was travelling as a passenger
in the said vehicle. As per the policy conditions, liability
aaa/-
12 fa 583.2005+ca.odt
of the insurer would be confined to six employees and
not passengers. In the result following order is passed.
O R D E R
1. Appeal is hereby allowed. No costs.
2. The judgment and award passed by the
Member, Motor Accident Claims Tribunal,
Jalna dated 8.2.2005 in M.A.C.P.
No.125/2002 is hereby quashed and set
aside to the extent of directing the appellant-
insurer to pay the compensation jointly and
severally alongwith the respondent owner.
3. Rest of the Judgment and award stands
confirmed including quantum of
compensation and liability of the respondent
owner to pay compensation to the claimants.
4. Award be drawn up accordingly.
5. If any amount is deposited by the appellant-
insurer before this Court, the same shall be
refunded to the appellant insurer.
6. Appeal is accordingly disposed of.
7. In view of disposal of first appeal, pending
civil application also stands disposed of.
( V.K. JADHAV, J. )
....
aaa/-
aaa/-
