Bombay High Court
New India Assurance Company Ltd vs Chandrakala Madhukar Mengawde ... on 15 January, 2018
Bench: M.S. Sonak
(1) 17- FA 1967 of 2013
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 1967 OF 2013
. New India Assurance Company Ltd.
Through its Divisional Manager,
Adalat Road, Aurangabad. ..Appellant
VERSUS
1. Chandrakala Madhukar Mengawde
Age: 37 years, Occu.: Household.
2. Pravin Madhukar Mengawade
Age: 20 years, Occu.: Education.
3. Priyanka Madhukar Mengawade
Age: 17 years, Occu.: Education.
Minor - U/G of No.1 Mother Chandrakala
4. Gangubai Maruti Mengawde
Age: 65 years, Occu.: Nil
All R/o.Mengalwadi Rajapur,
Tal.Shrigonda, District Ahmednagar.
5. Vilas Baban Waghmare
Age: 55 years, Occu.: Business,
R/o.Deodaithan, Tal.Shrigonda,
Dist.Ahmednagar.
6. Balasaheb Devdas Gaikwad
Age: 38 years, Occu.: Driver,
R/o.Belwandi Bk., Tal.Shrigonda,
Dist.Ahmednagar. ..Respondents
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(2) 17- FA 1967 of 2013
...
Advocate for Appellant : Mr.S.G.Chapalgaonkar
Advocate for Respondent Nos.1 to 4 : Mr.S.L.Bhapkar
...
WITH
CA/9392/2013 AND CA/4002/2017
...
CORAM : M.S.SONAK, J.
DATE : 15th JANUARY, 2018
ORAL JUDGMENT:-
1) Heard Mr.S.G.Chapalgaonkar learned counsel for the
appellant and Mr.S.L.Bhalekar learned counsel for the
respondents/claimants. By order dated 7.8.2013, this
Court had made it clear that the appeal itself will be
heard finally at the stage of admission. Accordingly,
record and proceedings were called for and at the request
of and with the consent of learned counsel for the
parties, the appeal is admitted and taken up for final
disposal.
2) Mr.Chapalgaonkar learned counsel for the appellant
has raised following two grounds in support of the
(3) 17- FA 1967 of 2013
appeal:-
a) That the driver of the offending vehicle
responsible for the accident was licenced only to
drive a non-transport vehicle. Since, the offending
vehicle has been admittedly to be founded to be a
transport vehicle, which the driver was never
authorized to drive, there is a fundamental breach of
the condition of the Insurance Policy.
Mr.Chapalgaonkar submits that in these circumstances,
the Motor Accident Claims Tribunal (MACT) erred in
foisting liability on the appellant Insurance
company.
b) That from the pleadings as well evidence on
record that deceased Madhukar was nothing but the
gratuitous passenger travelling in a goods Vehicle.
In terms of Section 147 of the Motor Vehicles Act,
1988 (said Act), there is absolutely no obligation
upon the Insurance Company, to assume liability
(4) 17- FA 1967 of 2013
towards any injury or demise to such a gratuitous
passenger. Even factually the Insurance Company did
not cover any liability towards any such gratuitous
passenger. Mr.Chapalgaonkar submits that this is a
additional reason as to why the Insurance Company,
who never have been held liable in the like cases.
In support of this proposition, Mr.Chapalgaonkar
relies upon New India Assurance Co.Ltd. Vs. Asha Rani
and others [(2003) 2 SCC, 223], NICU Vs. Rat and ors.
[(2009) 2 SCC, 75], National Insurance Co.Ltd. Vs.
Cholleti Bharatamma and others [(2008) 1 SCC, 423],
Oriental Insurance Co.Ltd. Vs. Devireddy Konda Reddy
and others [2003 2 SCC, 339] and United India
Insurance Company Vs. Suresh K.K. and another [(2008)
12 SCC 657].
3) Mr.S.L.Bhapkar learned counsel for the
respondents/claimants submits that the first ground
raised by Mr.Chapalgaonkar no longer holds good in the
(5) 17- FA 1967 of 2013
light the decision of the Hon'ble Supreme Court in the
case of Mukund Dewangan Vs. Oriental Insurance Company
Limited [(2017) SCC Online SC, 788]. He submits that
even otherwise, such ground stands negated by the
Hon'ble Supreme Court in the case of National Insurance
Company Ltd. Vs. Annappa Irappa Nesaria & Ors. [AIR 2008
SC 1418].
4) Mr.Bhapkar submits that in this case, the pleadings
as well as the evidence on record clearly indicates that
the deceased Madhukar was travellinig in the Goods
Vehicle alongwith his goods i.e. Milk Cans and therefore,
any liability towards the deceased was completely covered
in terms of the provisions of Section 147 of the Motor
Vehicles Act as amended in the year 1994. Mr.Bhapkar
submits that infact the factual position stands admitted
by the Insurance Company in its written statement and
therefore, the second ground urged in support of his
appeal neither arising nor is required to be decided in
(6) 17- FA 1967 of 2013
favour of the appellant Insurance Company. Mr.Bhapkar
points out that most of the decisions relied upon by the
appellants pertain to the position of Section 147 of the
said Act prior to its amendment in the year 1994. For
these reasons, Mr.Bhapkar submits that this appeal may be
dismissed.
5) So far as the first ground raised by
Mr.Chapalgaonkar is concerned, the same, stands answered
against the appellant in Mukund Dewangan (supra) and
Annappa Irappa Nesaria (supra). In both these cases, it
has been held that the Insurance Company cannot deny any
liability on the ground that driver, who was having
licence to drive Light Motor Vehicle was found to be
driving a transport vehicle without any additional
endorsement on the licence to drive such a vehicle. In
this case, there is absolutely no dispute that the driver
of the offending vehicle had a licence to drive Light
Motor Vehicle. Therefore, the sole ground that there was
(7) 17- FA 1967 of 2013
no additional endorsement made upon such licence to
entitle such driver to drive a transport vehicle, cannot
be a good ground for the Insurance Company to shirk its
liability to pay compensation. The first ground raised
by Mr.Chapalgaonkar on behalf of the appellants,
therefore, cannot be accepted.
6) So far as the second ground is concerned, it is
necessary to make reference to the pleadings. In the
Claim Petition, it is clearly stated that deceased
Madhukar, was travelling in a Goods Vehicle alongwith his
Milk Cans after delivery of milk. No doubt, there is
also a statement that Madhukar chose to travel in this
Goods Vehicle because driver of the Goods Vehicle was
known to him. The pleadings in such matters cannot be
construed pedantically. The essence of the pleadings is
the averment that the deceased Madhukar was travelling in
the Goods Vehicle alongwith his goods namely Milk Cans.
(8) 17- FA 1967 of 2013
7) The Insurance Company has not in its written
statement construed the pleadings pedantically. The
Insurance Company may have denied the averments made in
the Claim Petition, however, the Insurance Company in its
written statement has gone on record to explain how it
has understood or construed the pleadings in the Claim
Petition. Relevant averments in this regard are
contained in paragraph No.14(a) of the Claim Petition. In
paragraph No.9 of the written statement, there is an
evasive denial. However, in paragraph No.11 of the
written statement of the Insurance Company, this is what
has been stated:-
"11] It is submitted that as per the petition
and as per the Police papers deceased was
travelling in the goods vehicle for Hire or
reward and not in persuance of contract. The
policy issued does not cover the risk of the
deceased who was occupant in the vehicle and was
sitting in the rear portion of the vehicle. It
is not a case of applicants that deceased was
travelling along with the goods, therefore, it is
(9) 17- FA 1967 of 2013
submitted that deceased was unauthorised
passenger, even in the FIR it is stated that
deceased was "Pravasi" as such this is a
fundamental breach of terms and conditions of the
policy committed by the owner of the goods
vehicle, knowing well that passengers are not
allowed in the goods vehicle, therefore, this
opponant is not liable to pay any amount even
under the No Fault liability, therefore, petition
be dismissed against this opponant."
8) In the aforesaid circumstances, it does appear that
even the Insurance Company agrees that it was the case of
the claimants that the deceased Madhukar was travelling
in a Goods Vehicle for hire or reward. Further, there is
a statement to the effect that it was not the case of the
claimants that the deceased was travelling along with the
goods. This implies that if there are pleadings to the
effect that the deceased was travelling along with the
goods and further, if there is evidence to back the same,
the Insurance Company will have no reason to avoid
liability.
( 10 ) 17- FA 1967 of 2013
9) If the Claim Petition is perused, there is very
clear assertion on the part of the claimants that the
deceased was travelling alongwith the goods. The
evidence on record, both oral as well as documentary,
establishes this fact. Even Police papers endorse this
position. There is really ample material on record which
establishes that the deceased was travelling along with
his Milk Cans after having delivered the Milk.
10) Taking into consideration the pleadings as well as
evidence on record, there is no reason to fault the view
taken by the Motor Accident Claims Tribunal to the effect
that Insurance Policy covers liability towards demise of
a person like Madhukar. This is because Madhukar was
travelling along with the goods at the time when he met
with fatal accident.
11) Section 147 of the Motor Vehicles Act, inter-alia,
( 11 ) 17- FA 1967 of 2013
provides that in order to comply with the requirements of
Chapter XI of the said Act, a Policy of Insurance must be
a Policy issued by a person, who is authorized insurer;
and insure a person or classes of a person specified in
the Policy to the extent specified in Sub-Section (2).
Such insurance has to be covered against any liability,
which may be incurred by such person in respect of death
or bodily injury to any person including owner of the
goods or his authorized representative carried in the
vehicle, or damage to any property of third party caused
by or arising out of the use of the vehicle in a public
place.
12) Taking into consideration the pleadings as well as
evidence on record, the liability in the present case has
arisen on account of death of the owner of the goods
carried in the vehicle. Accordingly, the plea based upon
the construction of Section 147 of the said Act cannot be
accepted.
( 12 ) 17- FA 1967 of 2013
13) In the case of Asha Rani (supra) at Paragraph No.12
of the said Judgment, it is noted that there was no
dispute in the batch of appeals when the cause of action
in each of the cases arose prior to coming into force the
1994 Amendment in the Motor Vehicles Act, 1988, and
therefore, the 1994 Amendment would have no bearing on
the matter.
14) In the present case, there is absolutely no dispute
that the cause of action has arisen after the 1994
Amendment, in which the crucial expression
".....including the owner of the goods or his authorized
representative carried in the vehicle....." came to be
introduced in Section 147(1)(b)(i) of the said Act.
15) In Asha Rani (supra), the Hon'ble Supreme Court has
held that the 1994 Amendment was not clarificatory in
nature and therefore, there was no question of giving it
( 13 ) 17- FA 1967 of 2013
any retrospective effect so as to cover cases where cause
of action arose prior to 1994 Amendment.
16) Therefore, the principle in Asha Rani (supra) is not
applicable to the facts of the present case in which the
cause of action has admittedly arisen after the 1994
Amendment.
17) Most of the other decisions relied upon by
Mr.Chapalgaonkar, learned counsel, follow the Asha Rani
(supra) principle and therefore, are distinguished on the
same ground as aforesaid. In addition, in Rattani
(supra), infact, it was admitted that there were no gift
articles in the vehicle concerned, and therefore, the
passengers were simply gratuitous passengers not
travelling in their capacity as owners of any goods.
18) In Cholleti Bharatamma (supra), the Insurance
Company was held liable in respect of only one of the
( 14 ) 17- FA 1967 of 2013
passenger, who was actually found to be travelling as
owner of the goods, but liability in respect of other
passengers, who were not so found, was not foisted upon
the Insurance Company, This document infact assists the
respondents than the appellant Insurance Company.
19) Devireddy Konda Reddy (supra), is relied upon the
Asha Rani (supra) principle and is therefore, required to
be distinguished on the same basis as Asha Rani (supra)
has been distinguished.
20) In Suresh K.K.(supra), deceased was a gratuitous
passenger and no goods were found to be carried in the
offending vehicle. On this factual ground, the decision
is clearly distinguishable.
21) Thus, both on facts as well as in law, it is not
possible to accept the two contentions raised by
Mr.Chapalgaonkar on behalf of the appellant.
( 15 ) 17- FA 1967 of 2013
22) Since, no other grounds were raised in support of
appeal and two grounds raised in support of the appeal
deserve no acceptance, this appeal is liable to be
dismissed and hence, hereby dismissed.
23) As the appeal is dismissed, interim order is
vacated.
24) In the facts and circumstances, there shall be no
order as to costs.
25) The respondent claimant Nos.1 to 4 are permitted to
withdraw the compensation amount deposited in this Court
after accounting for the amount already withdrawn by them
during pendency of this appeal. They are permitted to
withdraw interest, if any, that may have accrued on the
said amount.
( 16 ) 17- FA 1967 of 2013
26) From out of the withdrawn amount, Rs.60,000/- to be
paid to respondent No.4, Mrs.Gangubai Maruti Mengawde.
The balance amount to be paid to respondent Nos.1, 2 and
3 in equal proportion.
27) Civil Application for stay does not survive as the
appeal is disposed of.
[M.S.SONAK, J.]
SPT/17- FA 1967 of 2013
