Bombay High Court
Laxmibai Subhan Jadhav And Ors vs Hdfc Ergo General Insurance Co. ... on 3 February, 2021
Bench: V.L. Achliya
7308.20CA.odt
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CIVIL APPLICATION NO.7308 OF 2020
IN FIRST APPEAL [STAMP] NO.22867 OF 2019
LAXMIBAI SUBHAN JADHAV & OTHERS
VERSUS
HDFC GENERAL INSURANCE COMPANY & ANOTHER
...
Mr.Manoj D.Shinde, Advocate for the
applicants - claimants.
Mr.M.R.Deshmukh, Advocate for the respondent
no.1.
...
CORAM : V.L.ACHLIYA,J.
DATE : 03.02.2021
P.C.
1] The applicants have moved this
application seeking withdrawal of the amount
deposited by the appellant-Insurance Company.
2] Heard learned counsel for the
applicants-claimants and the respondent-
appellant-Insurance Company.
3] In brief, it is the contention of
the learned counsel for the appellant-
Insurance Company that the judgment and order
passed by the Tribunal is perverse. It is
pointed out that the Tribunal has held that
the deceased was traveling as a passenger in
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a trolley attached to the tractor insured
with the appellant-Insurance Company. The
trolley was not insured. So also, no premium
was paid covering the risk of the labourer
employed by the owner for the purpose of
loading and unloading of the material in the
trolley. It is further pointed out that the
Tribunal has observed in the order that 15-16
persons were traveling in the trolley
attached to the tractor in contravention of
the terms and conditions of the policy. There
was no risk covered under the terms of policy
of the person traveling in the trolley
including deceased. In spite of such evidence
and finding, the Tribunal has passed the
judgment and award making Insurance Company
liable to pay the same and recover the same
from the owner / insured. In this background,
learned counsel submits that the appellant
has good case to succeed in appeal.
4] On the other hand, learned counsel
for the applicants - claimants support the
judgment and order passed by the Tribunal. He
submits that there is no dispute as to the
fact that tractor involved in the accident
was insured with the appellant-insurance
company. It is submitted that the deceased
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was traveling in the trolley not in the
capacity as fare paying passenger but he was
traveling as labour for cutting sugar cane.
In that view, the Tribunal was justified in
passing the order of pay and recover.
5] On due consideration of the
submissions advanced, I am of the view that
appeal raises arguable case, which needs to
be considered on merits. There is observation
made by the Tribunal that the deceased was
traveling as fare paying passenger along with
15-16 persons. In that view, the interest of
the appellant-Insurance Company deserves to
be protected while allowing the application
to withdraw the amount. Hence the following
order :
ORDER
i] The application is partly allowed.
ii] Out of the amount of Rs.6,32,000/-
deposited by the appellant-Insurance Company,
the amount of Rs.1,50,000/- be paid to the
applicant no.1 to be utilized for the
maintenance of herself and her minor child,
namely, Tulsidas i.e. applicant no.4.
7308.20CA.odt
iii] After making payment of
Rs.1,50,000/-, the balance amount be invested
in Fixed Deposit initially for a period of
three years with any Nationalized Bank with
standing instructions to renew the same till
further orders from this Court.
iv] The interest accrued over the amount
invested in Fixed Deposit be paid to the
applicant no.1 after regular interval of
three months to be utilized for the
maintenance of herself and her minor child
i.e. applicant no.4. The amount be paid to
the applicant no.1 on furnishing undertaking
to the effect that in the event award is set
aside or modified, she shall re-deposit the
amount within eight weeks from the date of
passing of the order.
v] The amount be paid to the applicant
no.1 by transferring the same in her saving
account as per the particulars of the bank to
be furnished by the applicant no.1.
vi] Withdrawal of the amount and payment
of interest to the applicants shall be
subject to the final outcome of the Appeal.
7308.20CA.odt
vii] The Civil Application is disposed of
in above terms.
[V.L.ACHLIYA]
JUDGE
DDC
