Bombay High Court
Hdfc Ergo General Insurance Co. Ltd. Thr ... vs Vijaymala Munjaji Karhale And Ors on 20 August, 2025
2025:BHC-AUG:22597
FA-2108-2018
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 2108 OF 2018
HDFC ERGO General Insurance Co. Ltd.
Through its Manager,
Ramon House, H.T. Parikh Marg,
169, Backbay Reclamation,
Mumbai - 400 020.
Through the Authorized Signatory / Manager,
Division Office, Adalat Road,
Aurangabad. ... Appellant
(Orig. Resp. No.2)
Versus
1. Vijaymala W/o. Munjaji Karhale,
Age: 34 years, Occu. : Household,
R/o. Kurhadi, Tq. Jintur, Dist. Parbhani.
2. Asaram S/o. Munjaji Karhale,
Age : 17 years, Occu. : Education,
Minior U/g. Real Mother i.e. Claimant no.1
3. Vikas S/o. Munjaji Karhale,
Age : 15 years, Occu. : Education,
Minior U/g. Real Mother i.e. Claimant No.1.
4. Gangaram S/o. Sakharam Dubhalkar,
Age : Major, Occu. : Business,
R/o. Borgilwadi, Tq. Jintur, Dist. Parbhani. ... Respondents.
.....
Mr. Mohit R. Deshmukh, Advocate for Appellant.
Mr. Mahesh P. Kale, Advocate for Respondents.
.....
CORAM : ABHAY S. WAGHWASE, J.
RESERVED ON : 07 AUGUST 2025
PRONOUNCED ON : 20 AUGUST 2025
FA-2108-2018
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JUDGMENT :
1. Original respondent no.2 Insurance Company is dissatisfied by
the judgment and order passed by learned Chairman, M.A.C.T, Parbhani
dated 20.04.2017 in M.A.C.P No. 443 of 2011 awarding compensation to
the present respondents/original claimants.
FACTS GIVING RISE TO THE APPEAL ARE AS UNDER
2. Heirs of deceased Munjaji filed M.A.C.P. No. 443 of 2011 on
the premise that deceased Munjaji was occupant of tractor bearing chassis
No. 918113211178 on 27.01.2011. The driver of the tractor, namely
Mahadu lost his control over the tractor, as a result of which deceased fell
and suffered fatal injuries to which he ultimately succumbed. Crime was
registered against driver of tractor and heirs of deceased set up a claim
under section 166 of Motor Vehicles Act to the tune of Rs.6,36,000/-.
3. Present appellant - insurance company (original respondent
no.2) contested the claim denying its liability on various grounds. The
thrust and emphasize of present appellant is that, risk of deceased was not
covered by them and therefore insurance company is not liable. After
appreciating the respective cases by each of the side, learned tribunal was
pleased to allow the petition granting compensation to the tune of
Rs.4,80,000/- with further directions to original respondent no.1 to
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exclusively pay the amount and present appellant insurance company was
directed to first pay and then recover from original respondent no.1 by
instituting proceedings.
Exception is taken to the above judgment and order by filing
instant appeal.
SUM AND SUBSTANCE OF THE ARGUMENTS
4. Learned counsel for insurance company pointed out that, such
order of pay and recover ought not to have been passed by tribunal. He
pointed out that, deceased was not permitted to occupy the mudguard of
the tractor. Insurance company had covered risk of only driver of the
tractor. Therefore, the very order of even directing insurance company to
pay and recover, is not sustainable. He seeks reliance on following rulings :
1. New India Assurance Company Ltd. v. Diwakar s/o. Daulatrao
Rohankar and others, 2005 (4) Mh.L.J. 773
2. United India Insurance Co. Ltd. v. Laila Ayyub Sayyad & Ors.
2017 STPL 1453 Bombay.
5. In answer to above, learned counsel for respondents - original
claimants submitted that, even the Hon'ble Apex Court in the case of New
India Insurance Company v. Darshana Devi & Ors. , 2008 STPL 5268 SC had
granted compensation. Therefore, he finds grant of compensation at the
instance of respondent no.1 owner of the tractor and prays to dismiss the
appeal.
FA-2108-2018
6. After hearing the submissions advanced by both sides and on
going through the papers, it appears that, crime is registered bearing No. 04
of 2011 for offence punishable under sections 279 and 304(A) of Indian
Penal Code. Claimants had placed on record police papers comprising of
FIR at Exh.34, spot panchanama at Exh.35 and charge-sheet at Exh.38.
Claimants had adduced evidence of eye witness Balaji.
7. In view of FIR and post mortem report, there is no dispute that
Munjaji was working as a labour and was occupying tractor along with
driver. Question which is required to be addressed is whether person other
than driver, is also covered under the policy. Insurance company in the trial
court has examined its Legal Officer Satish Awachar at Exh.61 and has
though admitted about tractor being insured with their company, he has
deposed that, only driver of the tractor is covered and no other occupant is
covered. Policy is also at Exh.62. In cross except admitting that third party
is covered under the policy, rest all suggestions are denied.
8. However, in view of the law discussed by the Hon'ble Apex
Court as well as this court in above referred cases, and more particularly, in
view of nature of vehicle involved, nature of policy and only tractor driver
being covered, risk of deceased was not covered. Therefore, when there is
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no distinct or extra premium paid towards other person except the driver,
liability on insurance cannot be fasted.
9. Leaned counsel for claimants has also taken recourse to the
judgment of the Hon'ble Apex Court in the case of New India Insurance
Company v. Darshana Devi (Supra) . However, therein Hon'ble Apex Court
had exercised extraordinary jurisdiction under Article 142 of the
Constitution of India. Therefore, even if compensation is granted in that
case, same cannot be made applicable, more particularly, in view of the
observations of the Hon'ble Apex Court in paragraph 21, this court finds
substance in the arguments advanced by the learned counsel for insurance
company.
10. In view of the settled position laid down by the Hon'ble
Supreme Court, it is clear that, the Insurance Company is not statutorily
required to ensure the passengers travelling in a goods vehicle and, as such,
would not be liable to pay compensation. In the present case also
admittedly the deceased was sitting on the mud guard of the tractor which
is undoubtedly a goods carrier and in such circumstances the Insurance
Company cannot be made liable to pay compensation to the respondents. In
view of the decision of the Hon'ble Apex Court in the case of National
Insurance Co. Ltd. v. Bommithi Subbhavamma , 2005 (2) T.A.C. 1 SC, the
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insurance company is not liable to pay compensation first to claimants and
then to get it recovered from the owner as it is the owner of the goods
vehicle who alone is liable to pay compensation.
11. In view of the aforesaid settled position of law, the claimants
are at liberty to recover the compensation from the owner of the tractor.
12. The appeal is allowed. No costs.
(ABHAY S. WAGHWASE, J.)
Tandale
