Bombay High Court
New India Assurance Co Ltd vs Meena Ashok Ghumre And Ors on 20 July, 2017
Bench: V.K. Jadhav
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 38 OF 2011
New India Assurance Company Ltd.
Through Branch Manager
Chandra Nagar, Latur
Through its authorized signatory,
Mr. Vishwas s/o Bansi Gaikwad
Age 55 years, Occ. Service
Sr. Divisional Manager
new India Assurance Co. Ltd. ...Appellant
R/o. Aurangabad (Ori. R. No.2)
versus
1. Meena wd/o Ashok Ghumre
Age 29 years, Occ. Agricultural
R/o. Naikota, Tq. Sonpeth,
District Parbhani
2. Vishal s/o Ashok Ghumre
Age 9 years, U/g of his
mother, respondent No.1 herein
3. Vaibhav s/oAshok Ghumre
Age 6 years, U/g of his
mother, respondent No.1 herein
4. Vijay s/o Ashok Ghumre
Age 3 years, U/g of his
mother, respondent No.1 herein (Ori. Claimants)
5. Amol s/o Manikrao Giram
Age 38 years, Occ. Agri./Rickshaw
owner R/o. Sangam,
Tq. Parali Vaijinath
District Beed ...Respondents
...
Advocate for Appellant : Mr. Deshpande Dhananjay P.
Advocate for Respondents 1 to 4: Mr. A.M. Gaikwad
.....
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CORAM : V. K. JADHAV, J.
DATED : 20th JULY, 2017
ORAL JUDGMENT:-
1. Being aggrieved by the judgment and award dated 17.4.2010,
passed by the Member, M.A.C.T. Ambejogai, in M.A.C.P. No. 6 of
2009, the original respondent No.2 insurer has preferred this appeal.
2. Brief facts giving rise to the present appeal are as follows:-
a) On 26.10.2007, deceased Ashok was travelling in Ape auto
rickshaw, bearing registration No. MH-44-A-187 from Naikota to
Parali Vaijinath. On way, the said ape auto rickshaw turned turtle
near Yogeshwari Ginning factory. In consequence of which
deceased Ashok has sustained severe injuries and died on the spot.
Thus, the legal representatives of deceased Ashok approached the
Tribunal by filing M.A.C.P. No. 6 of 2009 for grant of compensation
under various heads. It has been contended that the driver of the
said ape auto rickshaw had driven the said rickshaw in rash and
negligent manner and caused the death of deceased Ashok. It has
been contended that deceased Ashok was bread winner of the family
and claimants were entirely depending upon his income and the
respondents are thus liable to pay the compensation.
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b) Though respondent No.1 owner was duly served, failed to
appear before the tribunal and as such, hearing of claim petition
ordered to proceed exparte against him.
c) The appellant-insurer has strongly resisted the claim by filing
written statement Exh.37. The appellant insurer has denied the
liability on two counts, firstly, that the risk of the passenger is not
covered under the policy since the ape rickshaw involved in the
accident is private use vehicle and secondly, that the driver of the
ape rickshaw was not holding valid and effective driving licence at
the time of accident. The respondents-claimants had adduced
evidence to substantiate their contentions, however, the appellant
insurer has not adduced any evidence.
d) The learned Member of the tribunal by his impugned judgment
and award dated 17.4.2010, awarded the compensation at
Rs.5,62,000/- to the claimants and the respondents, including the
appellant insurer, are directed to pay the compensation jointly and
severally alongwith interest and costs. Hence, this appeal.
3. Learned counsel for the appellant insurer submits that the
appellant insurer has issued act only policy in respect of the said ape
rickshaw, which is a private use vehicle and as such, the risk of
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passengers travelling in the said vehicle is not covered under the
policy. Learned counsel in the alternate submits that risk of
passengers, three in numbers, is covered by accepting additional
premium and as such, the appellant insurer may be liable to pay
Rs.1,00,000/- for each of such passengers in terms of policy
condition as per the additional premium accepted by the appellant
insurer. However, the Tribunal has not considered the same and
saddled the liability on the appellant insurer alongwith the respondent
owner to pay compensation to the claimants, jointly and severally.
4. Learned counsel for the respondents-original claimants
submits that the appellant insurer has not examined any witness to
substantiate its defence. Further, entire text of policy is not produced
on record. There is no evidence on record to show that the risk of
the passengers is covered to the extent of Rs.1,00,000/- by
accepting extra premium and therefore, the Tribunal has rightly
fastened the liability on the appellant insurer to pay compensation
jointly and severally alongwith the respondent owner. Learned
counsel, in the alternate, submits that the bread winner of the family
met with an accidental death and the respondents claimants entirely
depending upon the income of deceased Ashok. In view of same, the
appellant insurer may be directed to pay the compensation and
recover it from the owner.
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5. The learned counsel for the respondents-claimants in order to
substantiate his contentions, has placed reliance on the judgment of
this Court in the case of Bajaj Allianz General Insurance Company
Ltd. vs. Sangita Bhagwan Raut and others, reported in 2015 (1)
Mh.L.J. 883.
6. On careful perusal of pleadings, evidence and the judgment
and award passed by the Tribunal, it appears that the Tribunal has
not at all considered the defences raised by the appellant-insurer.
On the other hand, the Tribunal has only recorded in the judgment
that the appellant-insurer has raised defence that the driver of the
said ape rickshaw was not holding valid and effective driving licence.
The Tribunal has not given reference to the defence raised by the
appellant/insurer in respect of act only policy and risk of the
passenger covered to some limited extent by accepting additional
premium. As per registration particulars Exh.30, the said vehicle
involved in the accident is a private vehicle and as per cover note
Exh.31, it appears that the appellant insurer's liability covered under
the policy is act only liability. Learned counsel for the appellant
insurer has pointed out that risk of the passengers, three in numbers,
is covered under the policy by accepting additional premium to the
extent of Rs,1,00,000/- each of such passenger. In view of the
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same, the appellant-insurer is liable to pay the compensation to the
extent of Rs.1,00,000/-, as worked out by the Tribunal in its
impugned judgment and award.
7. In the case of Bajaj Allianz General Insurance Company
Ltd. vs. Sangita Bhagwan Raut and others (supra), in the facts
and circumstances of the said case, this Court had issued direction
to the insurer to first pay compensation and then recover it from the
insurer. In para 13 of the judgment, this court has also observed that
it is not in every case the Tribunal must direct the Insurance
Company to first pay the compensation amount and then recover it
from the insured, however, the Tribunal has to exercise such
discretion only when the facts and circumstances of the case justify
it. In the case in hand, in a private vehicle deceased Ashok was
travelling as passenger and risk of such passenger is covered to the
extent of Rs.1,00,000/- only. In view of the same, I do not find that
any case is made out to direct the appellant insurer to pay the
compensation and recover it from the respondent owner. The
appellant insurer is liable to pay compensation to the extent of
Rs.1,00,000/- and respondent owner is liable to pay the remaining
amount.
8. In view of above discussion, I proceed to pass the following
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order:-
ORDER
I. The appeal is hereby partly allowed. No costs.
II. The judgment and award dated 17.4.2010, passed by the
Member, M.A.C.T. Ambejogai, in M.A.C.P. No. 6 of 2009 is
hereby quashed and set aside to the extent of directing the
appellant insurer to pay the compensation jointly and
severally alongwith respondent No.1 owner.
III. The judgment and award dated 17.4.2010, passed by the
Member, M.A.C.T. Ambejogai, in M.A.C.P. No. 6 of 2009 is
thus modified to the following effect:-
"The respondent No.1 is liable to pay compensation of
Rs.4,62,000/- (Rupees Four lacs sixty two thousand)
alongwith interest @ 9% p.a. from the date of application till
realization of entire amount and respondent No.2 insurer is
liable to pay compensation of Rs.1,00,000/- (Rupees one
lac only) alongwith interest @ 9% p.a. from the date of
application till realization of entire amount."
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IV. Rest of the judgment and award to the extent of quantum of
compensation and finding recorded in respect of
negligence on the part of driver of ape auto rickshaw
stands confirmed.
V. The award be drawn up as per above modification.
VI. If any amount is deposited, by the appellant-insurer before
this court, the appellant insurer is entitled for refund, as per
the modified award.
VII. The appeal is accordingly disposed of.
( V. K. JADHAV, J.)
rlj/
