Bombay High Court
United India Insurance Company ... vs Bhagyashri Dhanraj Soudane And ... on 26 August, 2021
Bench: R. G. Avachat
FA-1283-2011.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 1283 OF 2011
WITH
CIVIL APPLICATION NO.356 OF 2019
United India Insurance Company Ltd.,
Through its Divisional Manager,
Osmanpura, Aurangabad ..Appellants
Vs.
1. Bhagyashri w/o. Dhanraj Soudane,
Age:27 years, Occ. Household,
r/o. Yusuf Wadgaon, Tq. Kaij,
Dis. Beed
2. Tushar s/o. Dhanraj Soudane,
Age:5 years, Minor,
3. Rani @ Bai d/o. Dhanraj Soudane,
Age:3 years, Minor
4. Kanhopatra w/o. Raosaheb Soudane,
Age:56 years, Occ. Nil,
r/o. As above
5. Raosaheb s/o. Bapurao Soudane,
Age : 61 years, Occ. Nil,
r/o. As above
6. Ramesh s/o. Jagannath Patil,
Age : Major, Occ. Jeep owner,
r/o. Yusuf-Wadgaon, Tq. Kaij,
Dist. Beed ..Respondents
----
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2 FA-1283-2011
Mr.S.G.Chapalgaonkar, Advocate for appellant
Mr.S.G.Kawade, Advocate for respondent nos.1 to 5
Mr.H.P.Jadhav, Advocate for respondent no.6
----
AND
CIVIL APPLICATION NO.356 OF 2019
IN
FIRST APPEAL NO.1283 OF 2011
Bhagyashri w/o. Dhanraj Soudane,
Age:27 years, Occ. Household,
r/o. Yusuf Wadgaon, Tq. Kaij,
Dis. Beed ..Applicants
Vs.
United India Insurance Company Ltd.,
Through its Divisional Manager,
Osmanpura, Aurangabad
and anr. ..Respondents
----
Mr.S.G.Kawade, Advocate for applicants
Mr.S.G.Chapalgaonkar, Advocate for respondent no.1
Mr.H.P.Jadhav, Advocate for respondent no.2
----
CORAM : R.G. AVACHAT, J.
DATE : AUGUST 26, 2021
JUDGMENT :-
This is an insurance company's appeal challenging
the judgment and award dated 24.09.2010 passed by Motor
Accident Claims Tribunal (M.A.C.T.), Ambajogai, in Motor
Accident Claim Petition (M.A.C.P.) No.127 OF 2008.
3 FA-1283-2011
2. By the impugned judgment and award, the appellant
- insurance company and owner of the vehicle (Jeep bearing
registration No.MH-23-E-1151) have been directed to pay
jointly and severally a sum of Rs.4,04,000/- together with
interest at the rate of 7.5% p.a. to the claimants, from
25.08.2008 till its realisation.
FACTS:-
3. On 16.08.2008, deceased - Dhanraj was proceeding
in ill-fated vehicle (Jeep). While passing from village Sukali on
Yusuf-Wadgaon to Kalamb road, the driver lost control over the
vehicle, as a result of which, it turned turtle. The inmates of
the vehicle including Dhanraj succumbed. The claimants,
therefore, filed M.A.C.P. for compensation. The M.A.C.T., on
appreciation of evidence in the matter, passed the impugned
award.
4. Mr.S.G.Chapalgaonkar, learned counsel for the
appellant - insurance company, would submit that the policy of
insurance purchased by the owner of the ill-fated vehicle, was
4 FA-1283-2011
act-only policy. The deceased was traveling as a gratuitous
passenger. The risk of the passenger traveling in the vehicle
was not covered under the policy of insurance. The deceased
could not be termed to be a third-party. According to learned
counsel, the M.A.C.T., therefore, erred in directing the appellant
- insurance company to pay the amount of compensation under
the impugned award.
5. Mr.S.G.Kawde, learned counsel for respondent nos.1
to 5 - claimants and Mr.H.P.Jadhav, learned counsel for
respondent no.6 - owner of vehicle, would submit that the
M.A.C.T., on appreciating the evidence in the case, has rightly
passed the award. Learned counsel took me through paragraph
19 of the judgment to ultimately submit that no interference
with the impugned award is called for. Mr.Jadhav, learned
counsel for respondent no.6, submitted that the owner of the
vehicle had transferred the vehicle long before the accident.
6. The accident took place on 16.08.2008. The policy
of insurance was valid from 31.07.2008 to 30.07.2009.
5 FA-1283-2011
Admittedly, it was a `Private Car Liability Only Policy' (act-only
policy). As such, the insurance company was liable to
indemnify the owner of the vehicle for compensation, which he
would have been directed to pay to a third party. The
deceased was one of the passengers traveling in the jeep.
By no stretch of imagination, he could be termed to be a third
party victim of the accident. Admittedly, the risk of the
passenger traveling in the vehicle has not been covered under
the policy of insurance. Still, the M.A.C.T. has observed in
paragraph 19 of the judgment as under :-
"19. Certified copy of insurance policy of
offending jeep is at Exh.43. This shows
that sitting capacity of the said jeep is eight
persons. It is admitted by respondent no.2
that at the relevant time, Dhanraj was
traveling in the said jeep. So, taking into
consideration that sitting capacity of
offending jeep was eight persons and
Dhanraj was traveling in the said jeep at
the relevant time, I am of the opinion that
there is no substance in the contention of
the insurance company that it is not liable
to pay compensation to applicants for death
of Dhanraj."
6 FA-1283-2011
7. The aforesaid observations of the M.A.C.T. run
counter to the terms of the insurance contract and the settled
proposition of law. The issue is no longer res-integra. In the
case of General Manager, United Insurance Company Limited
Vs. M. Laxmi and ors., (2009)17 SCC 301, Hon'ble Supreme
Court observed thus:-
"Motor Vehicles Act, 1988- Ss.147 and 166-
Third-party risk-Death of pillion rider-
Liability of insurer to pay compensation-
Deceased being a pillion rider and also
gratuitous passenger hence, not a third
party, reiterated, cannot claim
compensation from Insurance Company."
In the case of United India Insurance Co. Ltd., Shimla Vs. Tilak
Singh and ors., (2006)4 SCC 404, Hon'ble Supreme Court
observed thus:-
"Motor Vehicles Act, 1988-S.147- Third
party risk-Liability of insurer to pay
compensation under S.147-Extent of-Risk
of death or injury to gratuitous passenger
carried in a private vehicle, if covered-
Held, an insurance policy under S.147 does
not cover such a risk."
7 FA-1283-2011
8. In view of the above, the award passed against the
appellant - insurance company is required to be set aside.
Needless to mention that this Court, in such a case, has no
jurisdiction to pass order directing the appellant - insurance
company first to pay the amount of compensation and then
recover it from the owner of the vehicle. Respondent no.6 is
registered owner of ill-fated vehicle on the day of the accident.
He, therefore, cannot escape liability on the ground of having
transferred the vehicle before the accident.
9. In the result, the appeal succeeds. Hence, the
following order:-
(i) The First Appeal is allowed. The impugned order
dated 24.09.2010 passed by Motor Accident Claims Tribunal,
Ambajogai, in Motor Accident Claim Petition No.127 OF 2008 is
set aside. M.A.C.P. No.127 of 2008 stands dismissed against
the appellant-insurance company.
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(ii) The amount of compensation, if any, deposited by
the insurance company in this appeal, be paid back to it along
with interest accrued thereon.
(iii) Civil Application also stands disposed of.
[R.G. AVACHAT, J.]
KBP
