The New India Assurance Co. Ltd., ... vs Usha Vishwanath Bhusari And 5 Ors
2017 Latest Caselaw 8261 Bom

        J-fa805.06.odt                                                                                                       1/5


                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                           NAGPUR BENCH, NAGPUR


                                      FIRST APPEAL No.805 OF 2006


        The New India Assurance Co. Ltd.,
        Through its Dy. Manager,
        MECL Premises, Seminary Hills, Nagpur.                                        :      APPELLANT

                           ...VERSUS...

        1.    Smt. Usha Vishwanath Bhusari,
               Aged 25 years,
               Occupation : Household.

        2.    Ganesh Vishwanath Bhusari,
               Aged 6 years,
               Occupation : Nil.

        3.    Ku. Gayatri  Vishwanath Bhusari,
               Aged 5 years,
               Occupation : Nil,
               [Respondent Nos.2 and 3, minors,
                Through respondent No.1-Smt. Usha Vishwanath Bhusari,]
            
        4.    Pandurang Tukaram Bhusari,
               Aged 60 years,
               Occupation : Nil.

        5.    Sau. Kamlabai Pandurang Bhusari,
               Aged 50 years,
               Occupation : Nil.

               All Resident of Mehekar, Tal.
               Mehekar, Distt. Buldhana.

        6.    Panjabrao Pandurang Bhusari,
               Major, owner of motorcycle,
               R/o. Near Old Bus Stand, 
               At Post Mehekar, Distt. Buldhana.                                       :      RESPONDENTS




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        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
        Shri D.S. Dharaskar, Advocate for the Appellant.
        None for Respondent Nos.1 to 5 and 6.
        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-


                                                       CORAM  :   S.B. SHUKRE, J.

st DATE : 31 OCTOBER, 2017.

ORAL JUDGMENT :

1. This is an appeal preferred against the judgment and order

dated 5th June, 2006 rendered by the Motor Accident Claims Tribunal,

Buldhana in Motor Accident Claim Petition No.141/2002. By this

judgment and order, a petition filed under Section 163-A of the Motor

Vehicles Act has been partly allowed by the Tribunal granting

compensation of Rs.1,91,500/- to the claimants, who were the wife,

children and parents of deceased Vishwanath, who died in a vehicular

accident.

2. The accident in this case took place on 30 th May, 2002 in

between 4.00 p.m. and 5.00 p.m. on Undri to Balapur Road, near village

Takarkhed Helga within the limits of Amdapur Police Station, Taluka

Chikhli, District Buldana. At that time deceased Vishwanath was riding a

motorcycle bearing registration No.MH-28-J-2286 along with one pillion

rider Ramesh. The motorcycle was borrowed by him for personal use

from its owner, respondent No.6, and insured with present appellant.

Deceased Vishwanath lost control of the motorcycle when suddenly a

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she-buffalo came in front of the moving motorcycle and the result was

both Vishwanath and pillion rider fell down on the road sustaining fatal

injuries.

3. The claim petition proceeded exparte against the respondent

No.6, while it was strongly contested by the appellant. On merits of the

case, the Tribunal found that the claimants i.e. respondent Nos.1 to 5

were entitled to receive compensation jointly and severally from the

appellant and respondent No.6 and accordingly by the impugned

judgment and order, partly allowed the application. Not being satisfied

with the same, the appellant-insurance company has preferred the

present appeal.

4. I have heard Shri D.S. Dharaskar, learned counsel for the

appellant and nobody is present on behalf of the respondent Nos.1 to 5-

original claimants as well as respondent No.6-owner of the offending

motorcycle. I have gone through the record of the case.

5. Now, the only point which arises for my determination is :

Whether the appellant is liable to pay compensation along with owner to the original claimants ?

6. It is the contention of the learned counsel for the appellant

that since the motorcycle was borrowed for personal use by deceased

Vishwanath from its owner, deceased Vishwanath as well as pillion rider

were not included in the category of third party and as such their risk

J-fa805.06.odt 4/5

was not covered under the insurance policy. He, thus, submits that the

insurance company i.e. appellant cannot be said to be liable to pay

compensation in the present case.

7. This very point and argument were raised before the Tribunal

and the Tribunal in my view has rightly rejected the same. The Tribunal

found that there was an admission given by the witness of the appellant,

Chandrashekhar Anantrao Pande (Exh.-45), who was then working as

Assistant Administrative Officer at Akola Office of the appellant which

went against the case of the appellant. This admission is to the effect

that the policy at Exh.-46 is a comprehensive policy and it discloses that

the appellant accepted amount of Rs.77/- as additional premium towards

risk of public. This has been interpreted by the learned Chairman of the

Tribunal as something covering the risk of all those persons, who were

members of public at the relevant time, irrespective of their not being

third parties. I do not think that the view so taken by the Tribunal could

be found to be arbitrary or patently erroneous. The reason being that the

insurance company or any of its officers, has not come forward before the

Court and explained the meaning of the expression "public risk". The

insurance policy vide Exh.-46 also discloses that additional premium of

Rs.77/- has been accepted by the appellant under the head "liability to

public risk". When the appellant accepted the additional premium under

this head, it was under an obligation to explain before the Court the

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meaning of expression "liability to public risk". But, the appellant has

not performed its such an obligation. Therefore, I find that the

interpretation which favours the claimants in a case filed under welfare

legislation would have to be accepted by the Court and while doing so, I

am of the further view that the Claims Tribunal has rightly found the

appellant is also to be liable to pay compensation together with owner of

the offending vehicle jointly and severally. It is also the contention of the

learned counsel for the appellant that deceased Vishwanath was not

possessing any valid driving licence. However, the evidence available on

record shows that burden to prove that deceased did not possess any

valid driving licence at the relevant time which is on a party to take such

a plea, in this case such party is the appellant, has not been discharged

by the appellant. Neither any evidence has been produced, nor any

circumstances have been brought on record in this regard by the

appellant. Therefore, the argument deserves to be rejected and it is

rejected accordingly.

8. In the result, I find no merit in this appeal.

9. The appeal stands dismissed.

10. The parties to bear their own costs.

JUDGE okMksns