M/S New India Assurance Company ... vs Narsubai Ambadas Yamul & Others
2017 Latest Caselaw 802 Bom

                                       1                            1215 fa 684.97.odt



         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                               BENCH AT AURANGABAD


                           FIRST APPEAL NO. 684 OF 1997


        M/s. New India Assurance Co., Ltd.
        Kings Road, Ahmednagar
        Having its regd. & head office
        New India Assurance Building,
        87, M.G. Road, Fort, Bombay 400 001.
        and Divisional Office at Adalat Road,
        Aurangabad 431 005 through its
        Sr/Divisional Manager & Constituted
        Attorney Mr. Sayed Khalil Sayed Chand          ...       Appellant

                 Versus

1.      Narsubai Ambadas Yamui,
        Age: 50 yrs, Occ. Household work

2.      Narsing s/o Ambadas Yamui,
        Age: 17 years, Occ. Nil.
        Minor through guardian no.1
        Both R/o Mominpura, Sangamner,
        Tq. Sangamner, Dist. Ahmednagar.

3.      Rajendra Dhondu Davakhare,
        Age: 35 years, Occ. Driver,
        R/o Rangar Galli, Sangamner,
        Dist. Ahmednagar.

4.      Faroj Khan Ahmed Khan Pathan,
        Age: 50 years, Occ. Truck Owner,
        R/o Naikwadpura, Sangamner,
        Dist. Ahmednagar.                              ...       Respondents

                                ----
Mr. V.N. Upadhye, Advocate for Appellant.
Mr. D.A. Naik, Advocate for respondent nos. 1 and 2.
Mr. V.P. Latange, Advocate for respondent no.4.
                                ----

                                           CORAM : V.K. JADHAV, J.

DATE : 17-03-2017.

ORAL JUDGMENT :

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1. Being aggrieved by the judgment and award passed by

the M.A.C.T. Ahmednagar dated 31.07.1997 in M.A.C.P. No. 508 of

1990, the original respondent no.3-insurer has preferred this

appeal.

2. Brief facts giving rise to the present appeal are as

follows.

3. On 15.07.1986 at about 5.00 a.m. deceased was

coming from Bhiwandi to Sangamner by boarding one truck bearing

registration no. MWA-1325 being driven by respondent no.1. When

the said truck came near the Sangamer Sugar Factory, respondent

no.1 lost his control and the truck went in the road side ditch and

turned turtle. In consequence of which deceased Ambadas

sustained severe crush injuries on his legs and chest. He

succumbed to the injuries while under treatment in the hospital.

The legal representative/claimants of deceased Ambadas

approached to the Tribunal by filing M.A.C.P. No. 508 of 1990 for

grant of compensation under the various heads. It has been

contended in the claim petition that the accident had taken place on

account of the rash and negligent driving of the driver of the truck

and the deceased was in service on a monthly salary of Rs. 1,000/-

and the claimants were entirely depending on his income.

The respondent no.1 driver has denied all the

allegations made in the claim petition and it has been contended

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that he has not driven the vehicle in rash and negligent manner at

the time of accident.

The respondent no.2-owner has admitted the accident

in question, however, denied that respondent no.1 had driven the

vehicle in rash and negligent manner at the time of accident. It has

been contended that the claimants have claimed exorbitant amount

of compensation. It has been contended that the accident had

taken on account of the rainfall and slippery road.

The appellant-insurer has also strongly resisted the

claim petition. It has been contended that, the deceased was

traveling in a goods truck from Bhiwandi to Sangamner as a fare

paying passenger and he was not traveling in pursuance of the

contract of employment. The policy does not cover the risk of the

passenger for consideration given for hire or reward. There has

been breach of the terms of the condition of the policy and,

therefore, the insurer is not liable to pay the compensation.

The claimants adduced oral and documentary evidence

in support of their contention. The learned Member of the Tribunal

by its judgment and award partly allowed the petition and thereby

directed the respondent nos. 1 and 2 and present appellant to

jointly and severally to pay the petitioner of sum of Rs. 83,044/-

together with interest @ 12% per annum from the date of filing of

the petition till its realisation along with the proportionate costs.

                                          4                               1215 fa 684.97.odt



Hence the appeal.

4. The learned counsel for the appellant-insurer submits

that, in the instant case, the accident had taken before the

amendment of Section 147(1) of the Motor Vehicles Act, 1988 in

1994, thus, the insurance company is not liable for the death or

injuries sustained by the owner of the goods or his authorised

agents traveling in the truck. The learned counsel submits that, it

is the specific case of the claimants that deceased Ambadas was

traveling in the goods vehicle truck along with his goods and thus

the claimants are entitled for the compensation. The learned

counsel submits that, the risk of such a passenger is not covered

under the policy, however, the Tribunal has erroneously fastened

the liability on the appellant-insurer.

5. The learned counsel for the appellant-insurer, in order to

substantiate his submission placed reliance in the case of New

India Assurance Co. Ltd. Vs. Asha Rani and Ors. reported in

AIR 2003 SC 607 and in the case of The New India Assurance

Company Ltd. Vs. Lilabai Shrimant Misal reported in (2015) 1

Mh.L.J. 827.

6. The learned counsel for the respondent-original

claimants submits that, there is no pleading by the claimants that

deceased Ambadas was traveling in the goods vehicle truck along

with his goods and on the basis of the admission given by the driver

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in his cross-examination, only the Tribunal has drawn such a

inference. The learned counsel submits that, accident had taken

place in the year 1986 and the Tribunal has awarded a very meagre

amount of compensation, out of the said amount the appellant-

insurer has deposited near about Rs. 35,000/- before this Court and

the claimants have also withdrawn 50% amount from the said

amount. The learned counsel submits that, it is difficult for the

claimants to recover the amount from the owner and, thus, the

appellant-insurer may be directed to deposit the entire amount

under the award and recover the same from the respondent.

7. The learned counsel for the respondent-owner submits

that, the Tribunal has rightly fastened the liability on the appellant-

insurer to pay the compensation amount jointly and severally along

with the respondent-owner. No interference required.

8. On careful perusal of the pleadings, evidence and the

impugned judgment and award, it appears that, the claimants have

not pleaded that in what capacity the deceased was traveling in a

goods vehicle truck. The respondent no.1-driver has examined

himself at exhibit-72 and in cross-examination he has stated that

when they left Bhiwandi, seven persons including himself were

traveling in the said truck and 600 tons of palm oil was loaded in

the truck and each tin was containing 60 liters of palm oil and one

Sanjay Sakhi was the cleaner. He has further explained that, out of

6 1215 fa 684.97.odt

the said persons four persons were in the body of the truck and

three persons were in the cabin. It is thus clear that, on the basis of

these admissions, it can be inferred that deceased Ambadas was

neither traveling in the truck as a owner of the goods nor as an

employee of the respondent-owner. Thus, the only irresistible

inference could be drawn that deceased Ambadas was traveling in

the goods vehicle as a passenger.

9. In a case of New India Assurance Co. Ltd. Vs. Asha

Rani and Ors. (supra) relied upon by the learned counsel for the

appellant, the Supreme Court has observed that where the accident

took place before the amendment of Section 147(1) of the Motor

Vehicles Act, 1988 in 1994, the insurance company will not be liable

for death or injuries sustained by the owner of the goods or his

authorised agent traveling in the goods vehicle. The Supreme

Court held that, insurer will not be liable to pay the compensation

to the owner of the goods or his authorised representative on being

carried in a goods vehicle, when the vehicle meets with an accident

and the owner of the goods or his representative dies or suffers any

bodily injury.

10. In view of the above discussion, it appears that, the

learned Member of the Tribunal has erroneously fastened the

liability on the appellant-insurer. In view of the provisions of

Section 147 (1) of the Motor Vehicles Act, 1988 prior to amendment

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in the year 1994, the appellant-insurer cannot be directed to pay

the compensation and recover the same from the respondent

particularly on the background that deceased Ambadas was

traveling in the vehicle involved in the accident and, as such, he

was not a third party to the accident. I accordingly proceed to pass

the following order.

ORDER

i) Appeal is hereby partly allowed, no costs.

ii) The judgment and award dated 31.07.1997 passed by

the M.A.C.T. Ahmednagar in M.A.C.P. No. 508 of 1990 is

quashed and set aside to the extent of directing the

present appellant-insurer to pay jointly and severally

the amount of compensation along with the original

respondent nos. 1 and 2.

iii) Rest of the judgment and award to the extent of

negligence and the quantum stands confirmed and the

respondent nos. 1 and 2 jointly and severally liable to

pay the same.

iv) Appeal is accordingly disposed of.

v) The appellant insurer has deposited the amount before

this Court. Balance amount shall be refunded.

(V.K. JADHAV) JUDGE

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