Chandrakant Trimbak Pasame vs Majalsbai Mohanrao Jadhav & Ors
2017 Latest Caselaw 8892 Bom

                               1                               FA-980-04-J



             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      BENCH AT AURANGABAD

                      FIRST APPEAL NO. 980 OF 2004

 Chandrakant S/o Trimbak Pasame,
 Age: Major, occu. Business
 R/o :Mamdapura,Tq. And District Latur.           ...APPELLANT

          versus

 1.       Majlasbai w/o Mohanrao Jadhav,
          Age: 37 years, Occu. Household,
          R/o Kambalga, Tq. Shirur-Anantpal,
          Dist. Latur.

 2.       Nilawati d/o Mohanrao Jadhav,
          Age: 12 years, occu. Nil, Minor,
          under guardianship of her real mother
          Majlasbai w/o Mohanrao Jadhav,
          r/o Kambalga, Tq. Shirur Anantpal,
          Dist. Latur.

 3.       Anju d/o Mohanrao Jadhav,
          Age: 6 years, Occu. Nil Minor,
          under guardianship of her real mother
          Majlasbai w/oMohanrao Jadhav
          R/o: Kambalga, Tq. Shirur-Anantpal,
          Dist: Latur.

 4.       Shaiksh Gous s/o Shaikh Rasul,
          Age: 27 years, occu. Driver,
          r/o Omerga (Bori) Tq. And
          Dist. Latur.

 5.       National Insurance Co. Ltd.
          Through it's Branch Manager,
          Branch office at Hanuman chowk,
          Latur, Dist. Latur.             ...RESPONDENT

                               .....
 Mr. S.C. Swami, Advocate holding for Mr. V.D. Gunale, Advocate
 for appellant
 Mr. S.G. Rudrawar, Advocate for Respondent No. 1
 Mr. R.C. Bora, advocate holding for Mr. R.P. Bafna, Advocate for
 respondent No.5.


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                                     2                                        FA-980-04-J


                                          .....
                                     CORAM : K.K. SONAWANE, J.

RESERVED ON : 23th AUGUST, 2017.

PRONOUNCED ON : 21st NOVEMBER, 2017.

JUDGMENT :-

1. Being dissatisfied with the impugned judgment and Award

dated 29-11-2003, passed by the learned Motor Accident Claims

Tribunal, Nilanga, District Latur (for short "Tribunal"), partly

allowing the proceeding of MACP No. 88 of 2002 filed by the

original claimants - respondents No. 1 to 4 herein under section

166 of the Motor Vehicles Act, 1988 (For short "Act of 1988") for

compensation arising out of vehicular accident involving death of

deceased Nangnath 15 years old, the appellant-original

respondent No.1 owner of the offending vehicle tractor, preferred

the present appeal by invoking remedy under section 173 of the

Act of 1988.

2. The genesis of the appeal culled out in brief is that, the

deceased Nagnath, 15 years old was the school going boy and

lone son of claimant No. 1 Majlasbai Mohanrao Jadhav resident of

Kambalga Ta. Nilnga, District Latur. The rest of the claimants are

the minor daughters of claimant Majlasbai. The deceased

Nagnath was studying in 7 th standard in Zilla Parishad School

Kambalga. On the fateful day of incident i.e. on 09-01-2001 he

was returning from the field and at that time vehicle Tractor of

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Mahendra Company 575 D-I, Engine No ECA-9304 along trolley

was also proceeding towards the village Kambalga. Respondent

Shaikh Gaus S/o Shaikh Rasool, driver of tractor-trolley made the

deceased Nagnath to sit on the tractor. But, it was different in

store for deceased Nagnath. Respondent No. 2- Shaikh Gaus

driver of the vehicle tractor-trolley drover the vehicle rashly and

in very negligent manner due to which the deceased Nagnath fell

down on the road from the tractor. He found crushed under the

wheels of the tractor and trolley. He died instantaneously on the

spot itself. The information of mishap was passed on to the Police

of Shirur Anantpal Police Station, Ta. Nilanga, District Latur.

Police rushed to the spot and drawn the panchnama. Police

escorted the dead body to Government Hospital for post mortem.

The medical expert opined that deceased Nangnath died due to

injuries sustained in the mishap. Police registered the crime

against driver of the tractor-trolley i.e respondent No. 2- Shaikh

Gaus.

3. The claimant alleged that the deceased Nagnath was the

school going boy, studying in 7 th Standard. He was doing the

agricultural work. He would have earned Rs. 5000/- per month in

future. The deceased was the lone son of widow claimant No. 1

Majlasbai. The claimants claimed compensation of Rs. 4,00,000/-

from the respondents for the loss sustained to them due to

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vehicular accident causing death of deceased Nangath.

4. In response to the notice of claim petition, the respondent-

owner and driver of the tractor-trolley appeared in the

proceeding before the learned Tribunal and filed written

statement (Exhibit-17). They admitted the occurrence of accident

on 09-01-2001, resulting into death of deceased Nagnath. It is

not put into controversy on the part of these respondents that

the deceased Nagnath boarded in the vehicle tractor, when he

was returning from the field. But, they being the owner and

driver of the vehicle denied that accident caused due to rash and

negligent driving of the vehicle-tractor by the respondent Shaikh

Gaus. It has been submitted that respondent No. 2 driver was

having valid driving licence at the time of accident. They added

that the vehicle - tractor was insured for covering the risk, if any,

arose after vehicular accident. They denied about the monetary

liability and prayed to dismiss the claim petition.

5. Respondent No. 2 Insurance company also raised objection

to the claim by filing written statement (Exhibit-15). According to

respondent No. 3 Insurance Company the impugned tractor and

trolley was insured with respondent-Insurance company but the

policy was issued for agricultural purpose. It was not permitted to

carry passengers in the vehicle. The deceased Nagnath was

found travelling in the vehicle without any risk coverage. There

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was breach of terms and conditions of the insurance Policy.

Therefore respondent No. 4- Insurance company is not liable for

any monetary liability for the death of deceased Nangath. The

respondent No. 4 -Insurance company denied the liability and

claimed to dismiss the application.

6. The learned Tribunal pursuant to rival pleadings, framed

the requisite issues for adjudication of the claim petition on

record. The claimant Smt. Majlasbai adduced her evidence on

oath before the Tribunal. The respondent including appellant

owner of offending vehicle did not step into the witness box to

lead evidence to fortify their defence. The Tribunal assessed the

oral and circumstantial evidence adduced on record and arrived

at the conclusion that death of deceased Nangnath was caused

due to rash and negligent driving of the vehicle tractor-trolley by

respondent No.2 Shaikh Gaus-driver of the vehicle. It was

determined that the claimants are entitled to get compensation

of Rs. 1,20000/- as an compensation from the respondents No.1

and 2 owner and driver of the offending vehicle. The Tribunal

simultaneously observed that the monetary liability could not be

fastened on the respondent -Insurance company as deceased

Nagnath was travelling on the tractor in breach of condition of

policy. The vehicle was permitted for agricultural use only.

Therefore, learned Tribunal exonerated the respondent-Insurance

6 FA-980-04-J

Company from the monetary liability and proceeded to pass

impugned judgment and Award, the validity and propriety of,

which is agitated in this appeal on behalf of respondent-owner of

the offending vehicle.

7. The learned counsel for appellant-owner of the offending

vehicle vehemently urged that the impugned Judgment and

Award of the Tribunal is erroneous, illegal and not sustainable

within ambit of law. The leaned Tribunal did not appreciate

evidence on record in its proper perspective and committed error

in absolving respondent -Insurer from the monetary liability. The

Tribunal ought to have held that there was no evidence to prove

that driver was rash and negligent while driving the vehicle at the

relevant time of mishap. Moreover, the conclusion of Tribunal to

absolve the respondent-Insurance company from the monetary

liability pursuant to breach of terms and conditions of the policy

is imperfect, illegal and not within purview of law. The learned

counsel has given much more emphasis on the provisions of

Section 147 (1) of the Motor Vehicles Act, 1988 and submits that

the Tribunal did not appreciate the scope and nature of the policy

of the vehicle involved in the accident. The Tribunal ought to

have considered that Insurance Policy covers all kinds of risk

including third party insurance. Therefore, findings recorded by

learned Tribunal are illegal, imperfect and unsustainable

7 FA-980-04-J

within purview of law. According to leaned counsel, the Police

record did not reflect that deceased Nagnath was the passenger

or labour employed on the tractor, buit shows that at the

relevant time he was found dead after wheels of tractor ran over

from his body. The driver of the vehicle cannot be held

responsible for alleged accident causing death of deceased

Nagnath. The findings of the learned Tribunal absolving

Insurance Company are incorrect, illegal and deserves to be

upset and quashed. Therefore, he prayed to allow the appeal.

The impugned judgment and Award passed by the learned

Tribunal be set aside and quashed being illegal and bad in law.

8. In refutal, learned counsel for respondent-original claimants

vociferously opposed the contentions propounded on behalf of

appellant and submits that the Tribunal has considered the entire

facts and circumstances on record in its proper perspective. It

has been correctly appreciated that respondent - Shaikh Gaus

was driving the vehicle-Tractor at the relevant time in rash and

negligent manner. The Tribunal has considered the documents of

police record and arrived at correct conclusion that deceased died

due to negligent act on the part of driver of vehicle respondent-

Shaikh Gaus. Learned counsel for claimants further added that

deceased Nagnath was travelling on the vehicle tractor and had

fallen on the road and found crushed under the wheels of the

8 FA-980-04-J

tractor resulting into his death. Learned counsel supported the

findings expressed by the learned Tribunal and prayed to dismiss

the appeal.

9. Learned counsel for respondent-Insurance Company also

raised objection and submits that offending vehicle tractor-trolley

was insured with respondent-Insurance Company under farmers

package policy. It was meant for agricultural purpose. At the

relevant time, the deceased Nagantah was found travelling on

the tractor and accidentally he had fallen on the ground and

sustained fatal injuries resulting into his death. The risk of

passenger carried by the driver on the vehicle was not the

subject-matter of present Insurance Policy meant for agricultural

use. Learned Tribunal has appreciated the factual aspects in its

proper perspective. According to learned counsel for the

respondent - Insurance Company, the appellant owner and driver

did not adduce evidence to traverse the pleadings put forth on

behalf of claimants. The deceased Nagnath was travelling on the

tractor as "gratuitous passenger". He was made to sit on the

tractor by the driver. The vehicle was not permitted for carrying

passenger, therefore, findings expressed by Tribunal appears

just, proper and reasonable. Therefore, there is no need to cause

any interference in it. The learned counsel for respondent -

Insurance Company prayed not to nod in favour of the appellant

9 FA-980-04-J

and appeal be dismissed.

10. The contagious questions, which arise for consideration in

this appeal are :-

(I) Whether findings of facts recorded by Tribunal for entitlement of claimants to receive compensation for accidental death of deceased Nangnath, are erroneous imperfect and require to be upset?

(II) Whether respondent - Insurance company is liable to indemnify the insured appellant - owner of vehicle under Insurance Policy, the loss caused following vehicular accident involving death of deceased Nangath?

11. Having heard the rival contentions canvassed on behalf of

both sides and on perusal of the record of case, I find that the

arguments advanced on behalf learned counsel for appellant

appears not appreciable and sustainable one. Admittedly,

occurrence of the vehicular accident involving death of deceased

Nangath arising out of and use of vehicle tractor - trolley, was

not put into controversy on behalf of both sides. The deceased

Nagnath was 15 years old school going boy and lone son of

widow i.e. Claimant No. 1- Majlasbai. It has been alleged that

the so-called incident of accidental death of deceased Nanganth

occurred only due to rash and negligent act on the part of

respondent -driver while driving the vehicle. Therefore, claimants

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preferred the application under section 166 of the Act of 1988 for

compensation.

12. Before adverting to merits of the matter, it is to be born in

mind that the claimant, who approached to Tribunal for claiming

compensation on account of death or physical injuries caused due

to vehicular accident, has to establish that death or physical

injuries complained of are the result of negligent act on the part

of driver of the offending vehicle. Unless, this hard factual aspect

is established, no claimants can claim compensation as envisaged

under section 166 of the Act of 1988. There is no doubt that it is

difficult to find out negligence of the driver of offending vehicle

because such accident used to occur within a fraction of second.

Therefore, it is incumbent to examine all ramification of the

circumstances prevailing over at the scene of occurrence during

the relevant period of accident. Obviously, negligence on the part

of driver is essential to be proved, and it may depends on the

several factors governing the case. There would not be any hard

and fast rule for the same. The Honourable Apex Court in the

case of National Insurance Co. ltd. Vs. Swaran Singh and

others reported in 2004(3) SCC 297 elucidated in paragraph

No. 70 as below:

"70. Apart from the above, we do not intend to lay down anything further i.e. degree of proof which would satisfy the aforementioned requirement

11 FA-980-04-J

inasmuch as the same would indisputably depend upon the facts and circumstances of each case. It will also depend upon the terms of contract of insurance. Each case may pose a different problem which must be resolved having regard to a large number of factors governing the case including conduct of parties as regards duty to inform, correct disclosure, suppression, fraud on the insurer etc. It will also depend upon the fact as to who is the owner of the vehicle and the circumstances in which the vehicle was being driven by a person having no valid and effective licence. No hard-and-fast rule can, therefor, be laid down. If in a given case there exists sufficient material to draw an adverse inference against either the insurer or the insured, the Tribunal may do so. The parties alleging breach must be held to have succeeded in establishing the breach of conditions of the contract of insurance, on the part of insurer by discharging its burden of proof. The Tribunal, there cannot be any doubt, must arrive at a finding on the basis of the materials available on records."

13. In the case of Municipal Corporation of Greater

Bombay Vs. Shri Laxman Iyer and another reported in AIR

2003 Supreme Court 4182, Their Lordship of the Apex Court

elucidated that the negligence does not always mean absolute

carelessness, but want of such a degree of a care as is required

in particular circumstances. Negligence is failure to observe, for

the protection of the interests of another person, the degree of

12 FA-980-04-J

care, precaution and vigilance which the circumstances justly

demand, whereby such other person suffers injury. What

constitutes negligence varies under different conditions and

determining whether negligence exists in a particular case, or

whether a mere act or course of conduct amounts to negligence,

all the attending and surrounding facts and circumstances have

to be taken into account.

14. Bearing in mind aforesaid legal proposition, I proceed to

evaluate evidence available on record in the matter in hand to

determine the negligence, if any on the part of driver of offending

vehicle. Admittedly, the sole evidence of claimant Smt. Majlasbai

is available on record. She deposed in her evidence which is

reproduced as below:

"I have two daughters i.e. claimant No. 2 and 3. My son

Nagnath died in accident on 09-01-2001. On that day at evening

time my son was returning to the house from a field. At that time

one tractor has given lift to my son Nagnath. Tractor was in high

speed. Due to which my son fall down from the tractor, and

wheel of tractor passes over the head of Nangnath. Thereafter,

we rushed to the spot of accident where we found the dead body

of Nagnath. Police have drawn the spot panchnama and corps

was forwarded to the hospital. My husband was already expired.

My son Nagnath was in 7th Std. He was cleaver student. Due to

13 FA-980-04-J

the death of Nagnath, I sustained damages of Rs.4,00,000/-.

Nagnath was my alone son. Claimant No. 2 is physically

handicapped. Due to poor financial position, I restricted my

claim upto Rs.2,00,000/- we have agricultural land. However, no

one is available to look after the agricultural field."

15. She was cross-examined on behalf of respondents, but it

appears that there was no arduous cross-examination to the

claimant Majlasbai sufficient to draw the inference that the driver

was not at fault. The respondents only put suggestion in the form

of denial of the allegations, cast on them by the claimants. The

learned counsel for Insurance Company proceeded one step

ahead and suggested to the claimant that driver of the tractor

accepted the fare of Rs.3/- from deceased Nagnath and allowed

him to sit on the tractor for going towards village.

16. The claimants also produced extract of police record of the

accident comprising FIR, spot panchnama, inquest panchnama,

provisional cause of death certificate etc. It is not denied that

criminal proceeding under sections 279 and 304-A of the Indian

Penal Code, was instituted against driver of the offending vehicle

-Tractor-trolley. The spot panchnama reflects that head of

deceased Nagnath was seen crushed under wheels of tractor -

trolley at the spot itself. The offending vehicle - tractor-trolley

was found stationary at the distance of 20 to 25 feet from the

14 FA-980-04-J

dead body of deceased lying on the spot.

17. The question, as to whether the vehicle-tractor trolley was

being driven rashly or not, must be answered on the context of

attending circusmtances that vehicle tractor-trolley was newly

purchased by the appellant and no mechanical problem would

arise nor the owner - appellant complained about the same.

Moreover, the vehicle tractor-trolley was driven at the relevant

time of accident on the village road. The respondent driver was

resident of the vicinity located nearby the spot of incident. He

was employee of appellant - owner of the vehicle as driver having

valid driving licence. In such circumstances, it cannot be

suggested that driver had no idea about the road condition of the

village of spot of incident. There was no evidence or suggestion

that unexpectedly stray cattle etc. came in-front of the vehicle

tractor-trolley and that made driver to apply brakes of the tractor

suddenly, and consequently the alleged accident occurred. There

were no marks on the scene of occurrence pointing out the fact

that driver applied the brakes urgently in emergent situation. It is

strange to appreciate that even in absence of above mentioned

circumstances, vehicle tractor-trolley of respondent got in

trouble. There was no explanation on the part of respondent

about the cause of accident occurred resulting into death of

deceased Nagnath. Significantly, no one respondent came

15 FA-980-04-J

forward and stepped into witness box to unfurl the circumstances

prevailing over on the scene of occurrence at the time of alleged

mishap. It was the burden on the driver to show how accident

occurred resulting into death of deceased Nagnath. It would be

reiterated that there were no endeavour on the part of

respondent to establish that driver of the vehicle tractor-trolley

was not at fault and the alleged accident might, more probably,

occurred in a manner, which did not connote negligence on the

part of driver.

18. It is evident from the circumstances on record that claimant

Smt. Majlasbai reached to the spot of incident immediately after

the alleged accident. She received an opportunity to watch the

spectacle. She narrated the attending circumstances on the spot

of the incident causing instant death of her teenager son

Nagnath. Respondent driver did not deny that criminal

proceeding was lodged against him under sections 279 and 304A

of the IPC for rash and negligent driving of the offending vehicle

at the time of alleged accident.

19. Pleadings and legal evidence on record, if considered in its

entirety, it would safely concluded that the driver was at fault

and guilty of rash and negligent driving of the offending vehicle-

tractor trolley and caused death of deceased Nagnath. The

factum of occurrence of accident and death of deceased Nagnath

16 FA-980-04-J

in the mishap was not put into controversy on behalf of

respondents. Therefore, there is no impediment to draw inference

that vehicle tractor-trolley was driven at the relevant time of

accident in rash and negligent manner by driver - Shaikh Gaus.

20. It is to be noted that ownership of the offending vehicle

tractor - trolley with the appellant-respondent is not in dispute.

It was an admitted fact that the appellant was the owner of

offending vehicle tractor-trolley and respondent Shaikh Gaus was

his employee for driving the vehicle tractor-trolley. No doubt,

the alleged accident had taken place during the course of

employment of driver - respondent Shaikh Gaus. He was found

negligent while driving the vehicle during the course of his

employment. Therefore, the appellant owner of the vehicle is

liable for the negligent act of his employee-driver. As referred

above, respondent driver did an unauthorized act of carrying the

teenager of deceased 15 years old on the tractor and driven the

vehicle in rash and negligent manner without taking care of

deceased boy travelling on the tractor. In such circumstances,

the appellant being owner of the tractor - trolley cannot be

escaped from the vicarious liability for the loss caused in accident

arising out of and use of vehicle (emphasis is supplied in

exposition of law laid down by the Hon'ble Apex Court in the case

of Pushpabai Purushottam Udeshi and others Vs. Ranjit

17 FA-980-04-J

Ginning & Pressing Co. (P) Ltd. and another reported in

AIR 1977 SC 1735.

21. The crucial issue which remains to be considered in this

appeal is in regard to liability of the Insurance Company to

indemnify the loss caused to the insured arising out of and use

of the vehicle tractor trolley. After considering the factual score

relating to the occurrence of alleged mishap, it appears that the

Tribunal has rightly recorded the findings of facts that the

deceased Nagnath was unauthorized passenger, travelling in the

vehicle tractor-trolley during the relevant period of the accident.

Learned counsel for respondents-original claimants and the

insurer invited attention of this Court to the document of policy

produced on record before the Tribunal at Exhibits-32, 33 and 34.

Perusal of these documents reflects that insurance policy of the

offending vehicle tractor-trolley was issued under "Farmer's

Package Policy". The vehicle was referred under policy in section

XIV of the scheme of said Farmers Package Policy as "Agricultural

Tractor." The clause ( c ) under the head of liability to the third

party referred in Section II of the aforesaid section XIV of the

scheme of "Farmer's Package Policy", it was specifically

delineated as under:

"( c ) Except so far as is necessary to meet the requirements of the Motor Vehicles Act in relation to the liability under the Workmen's Compensation

18 FA-980-04-J

Act, 1923 the Company shall not be liable in respect of death of or bodily injury to any person (other than a passenger carried by reason of or in pursuant of a contract of employment) being carried in or upon or entering or mounting or alighting from the Tractor at the time of the occurrence of the event out of which any claim arises."

22. In view of aforesaid condition of policy, it is manifestly clear

that vehicle tractor-trolley in question was only allowed to be

used for agricultural purpose. It was not permitted to carry

passengers for hire or reward. The deceased Nagnath was

unauthorized passenger travelling in the vehicle tractor-trolley.

He was not employee engaged as labour etc. for agricultural work

by respondent - owner of the vehicle. But, he was made to sit

on the tractor by the respondent-driver of the vehicle.

Thereafter, accident occurred resulting into his death. In such

peculiar circumstances and in view of settled principles of law,

monetary liability could not be fastened on respondent-Insurance

Company. The deceased Nagnath could not be treated as third

party for imposing monetary liability on the insurer to make

payment. But, the deceased Nagnath was travelling in the

vehicle tractor-trolley without being legally permitted and without

any risk coverage. Their Lordships in the case of National

Insurance Company Ltd. Vs. Baljit Kaur and others

19 FA-980-04-J

reported in 2004(2) SCC 01 observed that the insurer cannot

be held responsible for monetary liability in respect of passengers

especially "Gratuitous Passengers", who were neither

contemplated at the time of contract of Insurance was entered

into, nor was any premium paid to the extent of benefit of

insurance to such category of people.

23. In the light of aforesaid guidelines, the arguments

advanced on behalf of learned counsel for the appellant in regard

to section 147 of the Motor Vehicles Act 1988 in respect of

monetary liability of the insurer for death or bodily injuries

caused to any person arising out of and use of the offending

vehicle in public place would not be sustainable and considerable

one. The deceased Nagnath cannot be considered as "third

party" in this case in view of expression "any person" used in

section 147(1) (b) of the Act of 1988.

24. The resultant effect of the aforesaid discussion is that the

Tribunal has committed no illegality for exonerating the

respondent - Insurance Company from the monetary liability to

make payment of compensation to the claimants. However, in

view of negligence on the part of driver of the offending vehicle,

he is responsible for the loss caused to the claimants following

death of deceased Nagnath. The appellant -original respondent

being owner of the offending vehicle vicariously liable for the

20 FA-980-04-J

wrong committed by his employee respondent - driver during the

course of his employment while driving the offending vehicle. The

negligent act of driver caused the death of deceased Nangnath.

Therefore, the Tribunal has correctly appreciated the attending

circumstances on record and imposed monetary liability jointly

and severally on respondents No. 1 and 2 owner and driver of the

offending vehicle. In the aftermath, Award passed by learned

Tribunal is, therefore, required to be made absolute and

confirmed.

25. In the above premises, there is no need to cause any

interference in the finding expressed by learned Tribunal,

imposing monetary liability on the appellant and his employee

i.e. owner and driver of the offending vehicle. Accordingly, the

appeal stands dismissed. No order as to costs.

Sd/-

[ K. K. SONAWANE ] JUDGE

MTK ****