Bombay High Court
M/S National Insurance Co Ltd vs Alka Sunil More And Ors on 26 November, 2021
Bench: R. G. Avachat
FA-858-2009.odt
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 858 OF 2009
M/s National Insurance Co. Ltd.
Having its registered and head office at 3,
Medditon Road Kolkatta, 700 071
Br. at Ambar Plaza, Nr. S.T. Stand, Ahmednagar
Divisional Office at Hazari Chambers,
Station Road, Aurangabad 431 005
Through its Divisional Manager & Constituted
Attorney Dr. Milind s/o Kishanrao Ranvir
age 51 Yrs ... Appellant
(Orig. Respondent No.2)
Versus
1] Smt. Alka Sunil More
Age: 28 years, Occ. Household
2] Kum. Ashvini Sunil More 5 yrs, Occu.Education
3] Kum. Krishna Sunil More, aged 2 yrs, Nil
No.2 and 3 Minors, u/g of No.1 above
All R/o Raghunath Mailiba Dushing
At Post Umbare Tq. Rahuri,
District Ahmednagar
4] Bhausaheb Baburao Mahankal
age Major Occ. Business
R/o Deolali Pravara
Tq. Rahuri, Dist. Ahmednagar ... Respondents
....
Mr. V. N. Upadhye, Advocate for appellant
Mr. N. C. Garud, Advocate for respondent Nos. 1 to 3
Mr. Sandeep D. Munde, Advocate h/f Mr. R. R. Karpe, Advocate for
respondent No.4
....
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CORAM : R. G. AVACHAT, J.
DATED : 26th NOVEMBER, 2021
PER COURT :-
. This is Insurance Company's appeal, taking exception to
the judgment and award dated 05.04.2008, granting compensation
of Rs.66,000/- (excluding NFL amount) on account of death in
vehicular accident.
2. The challenge is mainly on the ground of the deceased
having been travelling as a gratuitous passenger in a goods carriage
and therefore, there being no liability of the insurer (appellant) to
pay any compensation.
3. It so happened that the deceased Sunil was travelling in
a tempo bearing registration No. MH-17-A-6141 on 07.04.2004. His
widow - Alka gave evidence claiming the deceased to have been
working as a Cleaner on the tempo. The driver asked the deceased to
see whether the goods kept above the tempo were intact or not. It
was the running tempo. The deceased therefore raised his head out
of the window. His head hit with a branch of road side tree. The
deceased suffered fatal injuries and died.
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4. On due investigation, the First Information Report
(F.I.R.) was lodged, wherein it has been mentioned that the deceased
was travelling in an ill-fated tempo for worship the goddess Vedubai
@ Banna. The Tribunal, on appreciating the evidence found the
deceased to have been travelling as a passenger in a goods carriage.
The same is the case averred in the F.I.R. The policy of the insurance
indicates that on risk of such passenger was covered.
5. The learned Advocate for the appellant - Insurance
Company was right in submitting that the appellant - Insurance
Company has no liability to pay the respondents - claimants any
amount of compensation, since the deceased was travelling as
gratuitous passenger in goods vehicle. This Court is very much with
the learned Advocate for the appellant - Insurance Company on this
point of submissions. The law is on his side.
6. Without appreciating factual matrix and legal aspects of
the matter, this Court is not inclined to interfere with the impugned
award, in the peculiar facts and circumstances of the case, mainly it
being a death claim filed by a 28 years widow and minor children in
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the age group of 2 and 5 years and the amount of compensation
awarded being Rs.66,000/- only. The appeal is therefore, dismissed.
7. The amount in deposit, if any, with this Court or the
Tribunal, be paid to the respondents - claimants along with interest
accrued thereon, immediately.
8. In view of disposal of appeal, Civil application No. 2446
of 2014 stands disposed of.
[ R. G. AVACHAT, J. ]
SMS
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