United India Insurance Company ... vs Smt Veena Krishnarao Thakre & ...
2017 Latest Caselaw 4635 Bom

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            IN THE HIGH COURT OF JUDICATURE AT BOMBAY,


                     NAGPUR BENCH : NAGPUR




First Appeal No.  530 of 2005


Appellant            :        United India Insurance Company Limited, 


                              Sahakar Bhavan, Amravati,  through the Regional


                              Manager, Nagpur Regional Office, Shankar Nagar


                              Square, Nagpur


                              Versus


Respondents          :        1.  Smt Veena wd/o Krishnarao Thakre, aged 


                              About 34 years, Occ:  Household work, r/o c/o


                              A. D. Date, Umate Layout, Pimpri, Wardha, 


                              At present c/o  R. P. Ade, "Daya" Shrikripa 


                              Colony, Akoli Road, Sai Nagar, Amravati


                              2.  Kumari Meena d/o Krishnarao Thakre, aged




        ::: Uploaded on - 27/07/2017                      ::: Downloaded on - 07/08/2017 23:58:40 :::
                                9 years, Occ: Education


                               3.  Suraj s/o Krikshnarao Thakre, aged 5 years,


                               Occ:  Education


                               4.  Dhiraj s/o Krishnarao Thakre, aged


                               3 years,


                               Respondents 2,3 and 4 minors, through their


                               Mother and natural guardian residing with


                               Her at the address mentioned against the


                               Name of respondent no. 1. 




Shri D. N. Kukday, Advocate for appellant 


Shri V. A. Kothale, Advocate for respondents


                               -------------

First Appeal No. 532 of 2005

Appellant : United India Insurance Company Limited,

Sahakar Bhavan, Amravati, through the Regional

Manager, Nagpur Regional Office, Shankar Nagar

Square, Nagpur

Versus

Respondents : 1. Vanashri d/o Babarao Ambekar, aged about

26 years, Occ: nil

2. Hrishikesh Babarao Ambekar, aged about 5

Years, Minor

3. Ku Nilita Babarao Ambekar, aged about

Years, Minor

Respondents no. 2 and 3 through their natural

Guardian and mother, respondent no. 1. All

All respondents are residents of Bhiwapur,

Tahsil Tiosa, District Amravati

4. Smt Veena wd/o Krishnarao Thakre, aged

About 34 years, Occ: Household work, r/o c/o

A. D. Date, Umate Layout, Pimpri, Wardha,

At present c/o R. P. Ade, "Daya" Shrikripa

Colony, Akoli Road, Sai Nagar, Amravati

Shri D. N. Kukday, Advocate for appellant

Shri A. G. Gharote, Advocate for respondents no. 1 to 3

Shri V. A. Kothale, Advocate for respondent no. 4

Coram : S. B. Shukre, J

Dated : 18th July 2017

Oral Judgment

1. In these two appeals judgments and orders dated 22nd December,

2004 passed in Claim Petitions No. 66/1993, 19/1995 as also in Claim Petition

No. 17/1993 have been challenged.

2. I have heard Shri D.N. Kukade, learned counsel for the appellant;

Shri V.A. Kothale, learned counsel for respondents in FA No.530/2005 and

respondent No.4 in FA No.532/2005 as also Shri A.G. Gharote, learned counsel

for respondents No.1 to 3 in FA No.532/2005

3. The only point that arises for my consideration is -

Whether in absence of any evidence about the fault in respect of occurrence

of accident, any liability could be fastened on the appellant/insurer of the scooter

bearing registration No.MH-27/9964 involved in the accident ?.

4. The accident in this case occurred in the night of 24/9/1992 when

deceased Babarao Ambekar along with deceased Krishnarao Thakre was

proceeding on said scooter on Amravati-Chandur Railway Road. It was stated that

the accident had occurred due to collision between the scooter and the unknown

vehicle. Respondents No. 1 to 3 being the legal heirs of deceased Babarao filed

Claim Petition Nos.66/93 and 19/95 claiming compensation from the Appellant

or in the alternative from the widow of Krishnarao contending that he was at the

relevant time driving the scooter and that he was at fault. On merits of the case,

the Tribunal found that since the accident had taken place involving a motor

vehicle and Babarao had died in the accident and the scooter was insured with

the appellant, the dependents of Babarao were entitled to receive compensation

from the insurance company and Shrimati Veena widow of deceased Krishnarao

who was owner of the scooter jointly and severely by Judgment and order dated

on 22nd December, 2004.

5. According to learned counsel for the appellant, the liability under

section 166 of the Motor Vehicles Act is a fault liability and, therefore, unless the

owner is held liable to pay compensation, the Insurance Company cannot be

made to pay the compensation. He submits that the only liability the Insurance

Company in such a case would have, it would be third party in view of section

147 of the Motor Vehicles Act. He placed his reliance upon Dhanraj v. New India

Assurance Co.Ltd & anr reported in 2004 (8) SCALE 229; Oriental Insurance

Co.Ltd v. Rajni Devi and ors reported in I (2009) ACC 297 (SC); Minu B. Mehta

& anr v. Balkrishna Ramchandra Nayan and anr reported in (1997) 2 SCC 441;

Deepal Girishbhai Soni and ors v. United India Insurance Co.Ltd Baroda

reported in I (2004) ACC 728 (SC) and Oriental Insurance Co.Ltd v. Premlata

Shukla and ors reported in 2007 (7) SCALE 725.

6. Shri Kothale, learned counsel for respondents 1 to 4 FA No.

530/2015 and shri Gharote learned counsel for respondent No.4 in FA No.

532/2005 support the impugned judgment and order.

FA/530/2005 :

7. Out of the above referred, the case of Rajni Devi and others is in

respect of the maintainability of a Claim Petition filed under Section 163A of the

Motor Vehicles Act and, therefore, the ratio of that case would be of no assistance

to us in the present case wherein claim petition was lodged under Section 166 of

the Act. As regards the other judgments, the principle of law that can be culled

out is that the claim petition filed under section 166 is based upon a fault liability

and the insurer is held liable to pay the compensation in a case where owner of

the vehicle is vicariously held to pay the compensation on account of rashness and

negligence of the driver of the vehicle and that section 147 of the Act mandatorily

requires the insurance company to only cover the risk of the third party and not

the risk for the death or bodily injury to the owner of the vehicle. Thus, these

principles would indicate that where the insured i.e. owner of the vehicle has no

liability towards compensation, the insurance company is also not liable to pay

the compensation. In the instant case, there is no dispute about the fact that the

policy was comprehensive policy and, therefore, it covered the risk of pillion

rider. The Insurance Company in its Written Statement also admitted the fact

that deceased Krishnarao was riding the vehicle at the time of accident. In other

words, the appellant has admitted the fact deceased Babarao, whose dependents

have lodged the present claim, was occupying the scooter as its pillion rider.

Since the policy was comprehensive, the risk for the death of the pillion rider was

covered and, therefore, I do not think that any illegality or perversity could be

found in the findings recorded by the Tribunal. I, therefore, find that there is no

merit in the appeal and it deserves to be dismissed. The point is answered

accordingly in this appeal. Appeal stands dismissed. No costs. Claimants are

permitted to withdraw the remaining amount deposited in this Court together

with interest, if any.

FA/532/2005 :

8. In this case, the Tribunal has not recorded any finding as to who was

riding the scooter and who was its pillion rider or that who was at fault in riding

the scooter. The Tribunal only considered the admissions given by the witness of

the appellant, DW Chandrakant and came to the conclusion that the extra

premium was paid so as to cover the risk for the death or bodily injury of two

persons including the owner and, therefore, the Tribunal held that the insurance

company was liable to pay the compensation.

9. The principles discussed while deciding the connected appeal above,

would also indicate that although it is not mandatorily required under Section

147 of the Act for an insurance company to cover the risk of the owner for the

death or bodily injuries visiting him, there is no prohibition either under Section

147 or any where else in the Motor Vehicles Act that the insurance company

cannot assume such a risk i.e. risk for death or bodily injury to the owner of the

vehicle on accepting payment of additional premium for the same. Such a risk can

always be undertaken by the insurance company on accepting suitable additional

premium and whenever it does so, it would be liable to pay compensation even to

the owner on account of death or bodily injury visiting him owing to the owner's

own fault. The reason being that the insurance company undertakes to cover

such a risk by entering into a contract with owner of the vehicle. The basis of such

a risk is not the statutory obligation under Section 147 of the Act but an

obligation arising out of the contract between the parties.

10. In the instant case, it is true that the Tribunal has not recorded any

finding as to who was riding the vehicle and who was riding pillion. It is also true

that the tribunal even did not care to find out as to who was really at fault in

causing of the accident. A perusal of the evidence available on record would show

that even if such an exercise was embarked upon, it was well nigh impossible for

the tribunal to arrive at any conclusion regarding wrong doing resulting in

causing of the accident. Therefore the tribunal, it is seen from the impugned

Award, tried to appreciate the evidence to ascertain if there was any contractual

obligation undertaken by the appellant and when it carried out such an exercise,

it found that such an obligation was indeed there in the insurance policy (exhibit

30). The conclusion about this was drawn by not only looking into the policy but

also considering the important admission given by appellant's own witness D.W. 1

Chandrakant. I think, having regard to the evidence available on record, same

approach would have to be adopted by this Court also and, therefore, it would be

appropriate that one looks at the evidence led by the parties, particularly, the

admissions given by D.W. 1 Chandrakant.

11. In his examination-in-chief, DW 1 Chandrakant Ingale has stated that

total premium of Rs. 305/- was obtained out of which Rs. 80/- were towards the

basic premium for any damage to the vehicle and 1% of the price of the vehicle

that was charged as a part of the premium, was for covering the risk arising out of

damage to the vehicle. He has also stated in examination-in-chief that the

amount of Rs. 40/- was charged as a premium towards assuming the third-party

risk. He has further stated that risk of the driver and the pillion rider of the

scooter was not covered as they were the third persons. However, in his cross-

examination taken on behalf of the claimants, this witness gave some important

admissions. He admitted that the conditions of the policy are attached to the

insurance policy and as written in the policy (exhibit 30), insurance of two

persons is covered under it. He admitted that total premium of Rs. 305/- was

obtained to cover comprehensive policy and that it was premium charged for all

purposes. He, however, admitted that the insurance policy did not mention that

the risk of the insured in the event of death was excluded. These admissions,

together with amounts mentioned in the insurance policy (exhibit 30) would be

sufficient for me to come to the conclusion that the insurance policy vide exhibit

30 was a comprehensive policy and it was issued to cover all kinds of risks

including the risk for the death of or bodily injury to the owner.

12. Learned counsel for the appellant submits that the amount of

Rs. 40/- typed on the right side of the insurance policy (exhibit 30) has been

mentioned twice and that is by mistake and that it represents only one and the

same premium which was obtained to cover the risk of the third-party in view of

the provisions of Section 147 of the Motor Vehicles Act. He submits that if the

figure "40" typed twice in the insurance policy is ignored and only figure of "40"

is taken into consideration, the total of all charges mentioned in this policy would

come to Rs. 305/- only and this is what is shown in this policy as the net

premium due. He, therefore, submits that this figure of 40 must be ignored and

if it is ignored, there would not be any defect in treating this insurance policy as a

policy covering only third-party risk, it being a comprehensive insurance policy.

He also invites my attention to the India Motor Tariffs (exhibit 54) in support of

his arguments. I would have accepted this explanation if it were tendered in

evidence by the appellant. But, if we consider the evidence of the appellant's

witness DW 1 Chandrakant, we would find that instead of giving such an

explanation, DW 1 Chandrakant has given admissions cumulative effect of which

is that the insurance policy covers the risk of the owner in case of his death or

suffering any bodily injury. One does not understand as to why DW 1

Chandrakant has given such admissions if the explanation now tendered by

learned counsel for the appellant is true. In fact, the explanation given by learned

counsel for the appellant during the course of hearing, could be true or the

admissions given by DW 1 Chandrakant, appellant's own witness, could be true.

In any case, both the facts which are contradictory to each other, could not be

true at one and the same time. But the fact which has been established on record

during evidence tendered on oath, would have to be considered as true and

considering the same, I find that the conclusion reached by the Tribunal that the

insurance policy vide exhibit 30 covered the risk of owner for his death or bodily

injury and death occurred while using the motor vehicle in question, and so the

insurance company was liable to pay the compensation even to the dependents or

legal heirs by virtue of such coverage of the risk, cannot be found to be

erroneous on facts and law. I have already stated that there is no prohibition

under the Motor Vehicles Act that by charging extra premium, the insurance

company can cover the risk of the owner for his death or bodily injury. This is a

case which fits into such category of cases. Therefore, the point is answered

accordingly. Appeal deserves to be dismissed.

14. Appeal is dismissed without any order as to costs. The

Claimants are permitted to withdraw the amount which is in deposit with this

Court together with interest, if any accrued thereon.

` S. B. SHUKRE, J

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