Bombay High Court
Rajpal Suneriji Uikey And 2 Ors vs The Oriental Insurance Co. Ltd And ... on 1 November, 2017
Bench: P.N. Deshmukh
1 01.11 fa306.07
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
FIRST APPEAL NO. 306 OF 2007.
1. Rajpal Sunerji Uike,
Age about 19 years, Occ:Student,
2. Charan Sunerji Uikey,
Age about 17 years, Occ:Student,
3. Saginibai Wd/o Amaru Netam,
Age about 63 years, Occ:Nil,
All residents of Dhodra, Taluka Deori,
Dist. Gondia.(original claimant) ... Appellants.
- Versus -
1. Oriental Insurance Company Ltd.
Main Road Gondia Taluka,Gondia,
Dist. Gondia(original deft. No.1.)
2. Dnyaneshwar Laxman Rahangdale (Tractor owner)
resident of Babai Taluka Goregaon Dist.
Gondia(original defendant No.2)
3. Ramesh Narayan Sonwane,(Tractor Driver)
resident of Mundipar Taluka Goregaon
Dist. Gondia(Original deft. No.3) ... Respondents
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Mr. Shashikant Borkar, Adv. for the appellants.
Mr.A.M. Kazi, Adv. for the respondents.
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CORAM : P.N. DESHMUKH, J.
DATED : 1st NOVEMBER, 2017
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2 01.11 fa306.07
ORAL JUDGMENT :
This appeal is preferred against the Judgment dated 5th
January,2005, passed in Claim Petition No.63/2003, by which
petition came to be allowed against the original respondent Nos.2
and 3 i.e. owner of the tractor-trolley and driver of the tractor
respectively by exonerating respondent No.1/Insurance Company.
The appellants are legal representatives of deceased Sumanbai Wd/o
Sunerji Uikey, who died in the accident, which has occurred on
04.02.2003, involving tractor bearing registration No.MGU-788 and
its trolley bearing registration No.MH-35-6421 driven by respondent
No.3.
2] It is the case of the appellants that deceased, at the time
of accident, was working as a Labour with respondent No.2 and for
that purpose, she was required to travel in the tractor-trolley during
the course of her employment. The said tractor met with an accident
and deceased died due to head injury in Rural Hospital, Deori.
Therefore, it is the case of the appellants that as on the day of
incident, they were minor, depending upon their deceased mother,
were entitled for compensation of Rs.2,00,000/- against respondents
jointly and severally. By impugned award, the learned Motor
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Accident Claims Tribunal, Bhandara by exonerating Insurance
Company, directed owner and driver of the tractor-trolley to pay
amount of Rs.2,00,000/- with interest @ 9% per annum from the
date of filing of the petition till its realization.
3] Present appeal is preferred by the appellants on the
ground that learned Motor Accident Claims Tribunal, Bhandara
without sufficient reasons exonerated liability of respondent No.
1/Insurance company. It is contended on behalf of the appellants
that Motor Accident Claims Tribunal,Bhandara failed while holding
that deceased was travelling in the tractor-trolley in the capacity as a
Labour. By referring to insurance policy on record (Exh.27), an
attempt was made to submit that as per terms of the policy,
Insurance company had insured the vehicle involved in the accident
and as such, is liable to make payment of compensation. It is further
submitted that in view of the above aspect, it is necessary to hold
that learned Motor Accident Claims Tribunal,Bhandara without
considering the evidence as aforesaid, had failed to hold that
deceased was passenger, travelling in the tractor-trolley in the
capacity as a Labour and thus, there was no breach of any policy
condition. It is further submitted that in view of the said fact, appeal
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be allowed, holding respondent No.1 Insurance company to be
jointly and severally liable along with respondent Nos.2 and 3 to
satisfy the claim.
4] Learned Counsel for respondent No.1 submitted that
since there is breach of policy conditions, learned Motor Accident
Claims Tribunal, Bhandara has rightly exonerated Insurance
company, thereby holding respondent Nos.2 and 3 owner and driver
respectively of the tractor-trolley to satisfy the claim. Learned
Counsel for Insurance company by referring Exh.27 i.e. copy of
policy on record has pointed out that premium received by Insurance
company in respect of the tractor and its trolley involved in the
accident, is specifically for its use for agricultural purpose and not
for any other purpose. While it is no case of appellants that accident
took place when the vehicles involved in the petition were in use of
agricultural operation.
5] Though it is the case of the appellants that at the time of
accident, their deceased mother was traveling in the tractor-trolley in
the capacity as a labour, working for respondent No.2, no evidence
to that effect is brought on record. The record reveals that no other
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evidence is brought on record by the claimants to establish the case
as aforesaid. Admittedly, mother of deceased is not an eye witness to
the incident nor her evidence establishes that at the time of incident
deceased Sumanbai Uikey was traveling in the tractor-trolley in the
capacity as a labour for carrying out agricultural operation. Her
evidence is silent on this aspect. In view of the aforesaid fact and on
considering Exh.27 (insurance policy), it is found that tractor- trolley
was insured for agricultural purpose alone and then no liability can
be fastened upon respondent No.1. Though from this document it
appears that vehicle involved in the accident was duly insured, there
is nothing to establish that at the time of accident, the deceased was
traveling in tractor-trolley in the capacity as a labour for the purpose
of loading and unloading the tractor-trolley. In that view of the
matter, case of respondent No.1 that since vehicle was insured for
agricultural purpose, owner had no right to carry passengers in the
said tractor-trolley from one place to another is convincing. In fact,
there is no challenge to the specific case of respondent No.1 that at
the time of accident apart from deceased Sumanbai Uikey, 20 to 25
other passengers were traveling in the same tractor-trolley as they
were returning back to their houses after attending Weekly Market at
village Chichgarh. In that view of the matter, even further case of the
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respondent No.1 that for the purpose of allowing deceased and other
passengers to travel in the tractor-trolley from one place to another
respondent No.2 had recovered money from them, in fact is found
further convincing.
6] On considering the facts as aforesaid, it is found that
there is clear breach of policy conditions by respondent No.2 and
admittedly, this appeal does not claim for any enhancement in the
amount of compensation awarded by learned Tribunal. In view of
the fact that amount of Rs.2,00,000/- along with 9% p.a. interest
has been awarded by the learned Motor Accident Claims Tribunal,
Bhandara ,therefore, appeal appears to have been preferred only for
fastening liability upon respondent No.1/Insurance company.
However, for the aforesaid reasons, no liability can be fastened upon
respondent No.1. Appeal is therefore without any merit and is liable
to be dismissed. Hence the order.
ORDER
1. First Appeal No.306/2007 stands dismissed.
2. No order as to costs.
JUDGE
Parpalliwar
