Bombay High Court
The New India Assurance Co. Ltd, ... vs Reshmabai Madan Gawai & Anor on 15 June, 2017
Bench: Dr. Shalini Phansalkar-Joshi
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
FIRST APPEAL NO. 704 OF 2006
The New India Assurance Company Ltd.,
through the Regional Manager,
Regional Office,the New India Assurance
Company Ltd., Dr. Baba Saheb Ambedkar Bhawan,
M.E.C.L.Building, Seminary Hills,
Nagpur-440 006.
APPELLANT
Versus
(1) Reshmabai w/o Madan Gawai,
Aged about 46 years, Occu: Household.
(2) Madan Kadatu Gawai,
Aged about 56 years, Occu: Agriculturist
And owner of the Tractor and Trolley,
Both R/o Jawalkhed, Tq. Deulgaon Raja,
Dist. Buldhana.
RESPONDENT
Shri A.J. Pophaly, Counsel for Appellant.
Shri A.M. Deo, Counsel for Respondents.
CORAM :- DR. SMT.SHALINI PHANSALKAR-JOSHI,J
DATE :- 15TH JUNE 2017
ORAL JUDGMENT
1. In the Motor Accident Claims Petition No.
142/2000, the owner and the driver of the offending
vehicle, alongwith the appellant Insurance Company, are
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held jointly and severally, liable to pay the
compensation of Rs. 1,57,000/- with interest at the
rate of 6% per annum from the date of filing of claim
petition till its realization. This order of the Motor
Accident Claim Tribunal Buldhana passed on 20th April
2006 is the subject matter of challenge, in this
appeal, which is preferred by the Insurance Company,
seeking exoneration from the liability to pay the
compensation.
2. Facts
of the appeal are to the effect that
the deceased Jitendra was the son of the Respondent No.
1 and respondent no. 2. At the time of accident he was
sitting in the Tractor, which was owned by Respondent
no.2. Due to the rash and negligent driving of the said
tractor, deceased Jitendra lost balance; fell down from
the tractor and succumbed to the injuries. Respondent
No. 1 who is the mother of the deceased, approached the
learned Motor Accident Claim Tribunal seeking
compensation of Rs. 1,00,000/- from appellant the
insurance and respondent no.2 who was her husband and
the owner of the truck.
Appellant Insurance Company resisted the said
petition by contending inter-alia that the tractor was
insured for Act only policy. Moreover the tractor was
having the capacity or permit of only one person. Hence
the liability for the death of the deceased who was
sitting therein, in addition to the driver, is not
covered therein. Insurance company is therefore not
liable to pay any amount of compensation and it should
be therefore exonerated from the said liability.
3. Learned Tribunal however, held that at the
relevant time tractor was being used for agricultural
purpose and hence there was no breach of the Insurance
Policy. Learned tribunal therefore held insurance
company also liable, jointly and severally, alongwith
Respondent No.2, the owner of the tractor, to pay the
compensation amount of Rs. 1,57,500/- to the claimant,
Respondent No.1, the mother of the deceased.
4. The only point which is raised for my
determination in this appeal, is whether the risk of
the deceased is covered by the insurance policy, in
respect of the said vehicle ?.
5. It is deposed by the claimant that deceased
Jitendra working as cleaner on tractor
trolly of the Respondent No.2. Therefore it is admitted
fact that he was not driver of the said tractor. The
registration certificate of the said tractor (Exh.34)
goes to show that it was having the sitting capacity of
only one person, including the Driver. The cover note
of the Insurance Policy (Exh.33) also goes to show that
sitting capacity of the vehicle was only one passenger
and it was only Act Risk Policy . In such situation,
it cannot be said that risk of the deceased was covered
by the insurance policy.
The law on this aspect, is fairly well settled
and laid down in the various decisions of the Apex
Court. One of such decisions relied upon by learned
counsel for the appellant is that of United India
Insurance company V/s Serjerao and others [I (2009) ACC
434 (SC)] wherein placing reliance its decision in
Oriental Insurance Company V/s Brijmohan and others
[2007 (7) 753] it was held by Hon ble Supreme Court
that, since the tractor is a goods carrier, the
insurance company can not be held statutorily liable
to pay compensation for the death of any gratuitous
passenger sitting therein. It was held that claimants
would be entitled to get compensation from the vehicle
owner alone and the Tribunal has committed an error in
holding appellant Insurance company liable to make the
payment of compensation.
In the present case therefore, the owner of
the vehicle respondent no.2, who is father of the
deceased, alone can be held liable to compensate his
wife, Respondent no.1, the claimant. It is pertinent
to note that in this case, the driver of the tractor
was also not joined in the petition before the Tribunal
or in this appeal. The owner is the husband of the
claimant and the father of the deceased. Hence the
order against the respondent no.2, the owner, who has
not challenged need not be disturbed.
In the result Appeal is Allowed.
6. The judgment and order passed by the Tribunal
as against the appellant insurance company is hereby
quashed and set aside. Appellant is absolved from the
liability of paying compensation amount to Respondent
No.1.
7. As appellant insurance company has already
deposited entire amount in this Court, the same is be
permitted to be withdrawn with interest, if any accrued
thereon.
Appeal stands disposed off in the above
terms.
JUDGE
Nandurkar
