Bombay High Court
Oriental Insurance ... vs Pandurang S/O Gopalrao Pokale And ... on 27 October, 2021
Bench: V.M. Deshpande
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
FIRST APPEAL NO. 562 OF 2009
Oriental Insurance Co. Ltd.
Divisional Office, Amravati
through the Divisional Manager, .. APPELLANT
Nagpur Divisional Office-II,
Kanoria House, Civil Lines, Nagpur
Versus
1. Pandurang s/o Gopalrao Pokale,
aged 50 years, Occ : Labour,
2. Sou. Kamlabai Pandurangji Pokale,
aged about 45 years, occ : Housewife,
.. RESPONDENTS
3. Sanjay s/o Pandurang Pokale,
aged about 11 years, Minor, through
father and natural guardian,
All residents of village Kurha,
Tq. Tiwasa, Dist., Amravati
4. Ramchandra Marotrao Pakde, - (ABATED)
aged about 50 years, Occ. : Agriculturist
and businessman and Electric decoration
ABATED
contractor,
R/o Village Kurha, Tq. Tiwasa, Distt.
Amravati
5. Subhash Keshavrao Raut
R/o Nandgaon Peth,
Tq. And Dist. Amravati
Mr. D.N. Kukday, Advocate for appellant
Mr. R.D. Wakode, Advocate for respondents No.1 to 3
CORAM: V.M. DESHPANDE, J.
DATE : 27/10/2021
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ORAL JUDGMENT :
ADMIT. Taken for final hearing.
2. This is an appeal filed by the appellant - insurance
company under Section 173 of the Motor Vehicles Act, 1988,
challenging the judgment and Award passed by the learned
Chairman, Motor Accident Claims Tribunal, Amravati dated
17/02/2007 in Motor Accident Claim Petition No.40/1997.
3. By the impugned Award, the learned Chairman,
partly allowed the Claim Petition and directed the present
appellant and the original respondents No.2 to 4 to pay jointly
and severally an amount of Rs.1,34,500/- inclusive of amount
of compensation under Section 140 of the Motor Vehicles Act
along with interest @7.5% from the date of petition i.e.
13/01/2003 with the costs of the petition to the claim
petitioners.
4. The appellant - insurance company was the
respondent No.5 in the Claim Petition, whereas the present
respondents No.1 to 3 were the claimants. The respondent
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No.4 in this appeal passed away and therefore, as per the order
of Registrar (Judicial) of this Court dated 24/11/2009, the
appeal stands abated against him. Though the respondent No.5
is the owner of the offending tractor duly served nobody
appeared from 2009 till today.
5. The appellant - Oriental Insurance Company
Limited is represented by Advocate Shri D.N. Kukday, whereas
the original claimants are represented by their Advocate Shri
R.D. Wakode.
6. In short, the case of the claimants before the
Tribunal was that deceased Ramesh was son of the claimants
No.1 and 2 and brother of claimant No.3 and at the time of his
untimely death due to accident he was about 18 years.
According to the claimants, he was working as a Coolie /
conductor on a tractor No. MH-27-A-7225. The claim petition
proceeded that when on 15/06/1996 the said tractor was duly
ensured with the appellant - insurance company and on that
day the deceased was working as a Coolie on the said tractor,
due to rash and negligent driving of the driver of the said
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tractor it turned turtle, resulting into Ramesh coming under the
tractor and died on the spot. With this basic allegation, the
claimants filed a Claim Petition and claimed compensation of
Rs.1,50,000/-.
7. Though various defences were raised before the
learned Tribunal by the present appellant, before this Court, the
learned counsel for the appellant restricted the case of the
appellant - insurance company to the extent that the deceased
was not covered under the insurance policy as it could be seen
from the registration particulars. He therefore, submitted that
the appeal needs to be allowed.
8. The argument of the learned counsel for the
appellant is countered by the learned counsel for the original
claimants by inviting my attention to Exh.96, which is a policy
issued by the appellant - insurance company in respect of the
tractor in question and he submitted that the view taken by the
learned Tribunal is erroneous.
9. It is to be mentioned here that looking to the
quantum of compensation granted by the learned Tribunal, the
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appellant - insurance company did not challenge the quantum
before this Court in this appeal.
10. According to Shri Kukday, learned counsel for the
appellant, the registration particulars show that the sitting
capacity as one only and that even according to the claimants
the deceased was a Coolie and was not a driver. If that be so, it
is his submission that he was unauthorized passenger and it was
not covered under the policy issued by the appellant - insurance
company.
11. I am afraid that his submissions could be accepted.
Firstly, Exh.78 the registration particulars on which Shri Kukday
have heavily relied is not issued by the insurance company, but,
it is issued by the Transport Officer, Amravati and it is in respect
of the registration particulars. Obviously, the sitting capacity of
a tractor in the registration particulars will be shown as one
only.
12. Exh.96, which is cover note shows that it was issued
in lieu of policy. Perusal of Exh.96 would show that it was for
tractor No. MH-27-A-7225 and trailer No. MH-27-A-2688.
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Under the head licence carrying capacity goods and passengers
and the said note shows 4 + 1 + 1. On behalf of the appellant -
insurance company, Shri Dilip Vishwanth Hegu entered into the
witness box as its witness No.1. His evidence shows that he
could not produce the policy which was issued under cover note
(Exh.96) because it was not having. His evidence is totally
silent that the policy was only for driver and not for companion
on a tractor. In that view of the matter, the Court is required to
fall back on Exh.96 as a document which is having a binding
force on the appellant - insurance company.
13. In view of the undisputed facts before this Court
that Ramesh was travelling on the tractor No. MH-27-A-7225 as
a Coolie and in view of Exh.96, the appellant - insurance
company has covered 1 + 1 on tractor and 4 passengers on a
trailer, in my view, the submission made by the learned counsel
for the appellant cannot be accepted.
14. The learned Chairman of the Tribunal has properly
considered the defence of the appellant and has passed the
impugned order. Besides the aforesaid, no other contention was
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canvassed before this Court. I have to pass the following order :
ORDER
(i) The judgment and Award passed by the Chairman,
Motor Accident Claims Tribunal, Amravati, dated
17/02/2007 in Motor Accident Claim Petition
No.40/1997 is hereby confirmed.
(ii) The Appeal filed by the appellant - insurance
company stands dismissed.
(iii) The amount deposited by the appellant before this
Court is permitted to be withdrawn by the
claimants i.e. respondents No.1 to 3 in this Appeal
along with accrued interest.
(iv) No order as to costs.
JUDGE
MP Deshpande
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