IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
FIRST APPEAL NO. 1618 OF 2007
United India Insurance Co. Ltd. ]..Appellant
Parbhani through its Divisional
Manager and Authorised Representative
and Signatory, Nanded Divisional Office,
Guru Complex, G.G. Road, Nanded,
Dist. Nanded.
VERSUS
1. Sayaji s/o. Masuji Shinde ]..Respondents
Age. 65 years, Occ. Nil,
2. Yamunabai w/o Sayaji Shinde
Age. 60 years, Occ. Household,
3. Girjabai w/o. Gajanan Shinde
Age. 28 years, Occ. Household,
4. Ku. Asarabai d/o. Gajanan Shinde
Age. 11 years, Occ. Education,
5. Ku. Ranjana d/o. Gajanan Shinde,
Age. 8 years, Occ. Nil,
6. Ku. Swati d/o. Gajanan Shinde,
Age. 6 years, Occ. Nil,
Respondent Nos.4 to 6 are minors and
u/g of real mother Respondent No.3.
All are r/o. Shinde Wadi, Pan Kanergaon,
Tal. Sengaon, Dist. Hingoli.
7. Pankajkumar s/o. Champaklal Gandhi
Age. Major, Occ. Business, R/o. 221,
T.P. Nagar, Indoor (M.P.).
Shri A.B.Gatne, Advocate for the appellant.
Shri P.S.Agrawal, Advocate for respondent Nos. 1 to 6.
CORAM : P.R. BORKAR, J.
RESERVED ON : 29.07.2008
PRONOUNCED ON : 04.08.2008
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JUDGMENT :
. Shri A.B. Gatne, Advocate for the appellant
and Shri P.S. Agrawal, Advocate for respondent Nos.
1 to 6 are present. With the consent of the parties
this appeal is heard finally at the stage of
admission.
2. This is an appeal preferred by the insurance
company, which is original opponent No.2 being
aggrieved by
ig the judgment and award passed by the
Member, Motor Accident Claims Tribunal, Hingoli in
M.A.C.P. No. 176 of 2001 decided on 10.10.2005.
Respondent Nos. 1 to 6 are the original claimants.
They are legal heirs of deceased Gajanan s/o. Sayaji
Shinde, who was son of respondent No. 1 and 2,
husband of respondent No.3 and father of respondent
Nos. 4 to 6. Respondent No.7 is the insured and
owner of truck No. MP-09-KA-9549.
3. It is original case of the claimants that on
22.01.2001 the deceased Gajanan was travelling in
Truck No. MP-09-KA-6549 and went to Chor Pangra. He
was on duty as a cleaner. One Shaikh Abdul was the
driver of the said truck. When the truck was
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returning back, it was being driven rashly &
negligently and in excessive speed. When the truck
came near Ganeshpur, the driver lost his control and
suddenly he applied breaks. Due to severe jerk and
fast speed of the truck, the deceased was thrown on
road and had sustained severe injuries and fractures
on various parts of the body and become unconscious.
He was taken to the hospital at Risod, but died on the
next day. In the claim petition it is also mentioned
that deceased Gajanan had gone to Chor Pangra for
taking
out
Jawar and Wheat. Thus the original case
in the claim petition is that Gajanan was on duty
made
as a cleaner and as such an employee of owner of the
truck respondent No.7-Pankajkumar Gandhi.
4. It is argued on behalf of the present
appellant that in-fact, Gajanan was one of the members
of a marriage party which was illegally being
transported in the truck. Gajanan was sitting on
“Falka” (rear side of wooden gate of the truck). As
he was hit against a branch of a tree, he fell down
from the truck and sustained injuries. In the truck,
passengers were being carried illegally. There was
breach of terms and conditions policy and as such the
appellant is not liable. The appellant does not
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dispute the award of compensation of Rs.2 lakhs to
respondent Nos. 1 to 6. It is stated that the owner
of the truck is liable and the appellant insurance
company is not liable to reimburse the owner of said
compensation due to breach of terms and conditions of
the policy.
5. It is also argued before this Court that the
Trial Court has not considered this aspect while
deciding the matter inspite of the fact that there was
evidence
filed by the
led by the appellant.
appellant is
The written statement
at Exh.12 and it is
specifically stated that deceased Gajanan was not on
duty as a cleaner. He was not carrying any goods like
Wheat and Jawar. When the written statement was
filed, necessary particulars of the policy were not
given. Therefore, it is also stated that the policy
was not obtained, but now it is admitted position that
the policy was obtained. It is further stated in para
19 that there was breach of policy terms as passengers
were carried in the goods truck.
6. Girjabai (respondent No.3) is examined at
Exh.27. She stated that the incident took place at
about 7 1/2 years ago. On that day along with her
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husband, she and respondent No.1 had gone to Chor
Pangra to see her ailing maternal uncle. They
purchased one quintal Wheat and one quintal Jawar from
her uncle and kept it in the truck which was to come
to Chor Pangra. Near Ganeshpur, when they were
travelling with the goods, the truck was in high speed
and due to negligence of the driver, the deceased fell
down from the truck and sustained injury on the head.
7. So, the case that the deceased was employee of
the truck owner and was on duty as a cleaner is not at
all stated by the witness of the claimants. In para
3, respondent No.3-Girjabai stated that the deceased
was doing work as a “Hamal” (coolie), but in the same
breath she stated that elder brother of the deceased
owned an Adat Shop and the deceased was working as a
“Hamal” with him and was getting Rs. 150/- to
Rs.175/- per day. It is contrary to what is stated in
the claim petition. In cross-examination the witness
admitted that she had given instructions to her
advocate and accordingly the claim petition was filed.
She also said that the claim petition is filed on the
basis of police papers. She admitted that she had not
stated in the claim petition that her husband was
working as a “Hamal” with his brother.
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8. At Exh.30 Shivaji Shinde – brother of the
deceased is examined. He was not eye-witness to the
incident, but he said that the deceased was working as
a “Hamal” in his shop. It falsifies the case made out
in the claim petition that the deceased was working as
a cleaner on the truck.
9. On behalf of the appellant, Advocate Shri
Mahendra Gaikwad is examined as a witness at Exh.32.
collected
He was appointed as an Investigator in the matter.
copies of F.I.R., spot panchanama,
He
statements of the witnesses and produced them with his
report. His investigation showed that the deceased
and his wife with other persons were travelling in the
said truck, free of costs, along with bride and
bridegroom, who were sitting in the cabin. The
deceased was sitting on wooden “Falka”. He fell down
and died on the spot. The witness proved his report
at Exh.33.
10. In this case Arun Jawanjal, Branch Manager of
the appellant-insurance company is examined at Exh.34.
He produced copy of insurance note at Exh.35. He also
proved the letter appointing Advocate Shri Mahendra
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Gaikwad as an Investigator.
11. In this case the petitioners have produced
certified copies of the F.I.R., spot panchanama and
inquest panchanama. Since they are certified copies,
they can be read in evidence without any additional
proof. Those are public documents. Along with
Exh.23, certified copies of F.I.R., spot panchanama,
inquest panchanama, post mortem notes and statements
of witnesses recorded by the police are produced by
the
clearly
appellant.
shows
ig The certified copy
that deceased Gajanan was a member
of the F.I.R.
of
the marriage party which was being transported in the
goods truck No. MP-01-KA-6549. It is mentioned in
the complaint lodged by Head Constable Khandalkar that
on investigation he came to know that deceased Gajanan
had gone to Chor Pangra for attending a marriage and
he was returning after marriage in the truck along
with other persons. The bride, bridegroom and ladies
were sitting in cabin and other were sitting in the
back side. The deceased fell down from the truck.
12. In my considered opinion, the Trial Court
could not have ignored the change in the case made out
by the appellant. It is no more disputed that the
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truck in question was a goods carriage vehicle and not
a passenger carrier vehicle and as such question
arises whether risk of death of passenger is covered.
Absolutely, there is no evidence to show that the
deceased was travelling in the truck as an owner of
goods. The original case made out in the petition
that deceased was travelling as a cleaner has been
given complete go-by by petitioner Girjabai. She has
made out a new case. In the circumstances the defence
cannot be lightly brushed aside. Since Motor Accident
Claims
evidence
Tribunal
ig is a tribunal,
are not applicable and the Tribunal can very
strict rules of
well consider what was the case made out before the
Police after the incident. This Court can take into
consideration the certified copies of various
documents on record.
13. In support of their argument, the learned
advocates for the appellant and the respondents cited
few cases. The case of Oriental Insurance Co. Ltd.
V/s. Premlata Shukla and Ors., 2007 AIR SCW 3591 is
cited for the proposition that where party brings on
record certain documents, such party cannot be
permitted to contend that only part of the contents of
the documents should be read which are convenient to
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it and rest part should not be read in evidence. Once
document is admitted in evidence, it can be read as a
whole. In this case, the petitioner has filed
certified copies of the F.I.R. on record and now it
does not lie in the mouth of respondent Nos. 1 to 6
that the same should not be considered merely because
its contents are against the case made out by them.
The petitioner wants this Court to rely on certified
copies produced by respondent Nos.1 to 6 to hold that
deceased Gajanan, who was travelling in the truck in
question fell down from the truck and died as a result
of injuries sustained. They also want this court to
rely on the copy of the policy on record to show that
respondent No.7 was the owner and the appellant was
the insurer of the truck in question.
14. In the case of M/s. National Insurance Co.
Ltd. V/s. Prakash Sakharam Dudhankar & Ors., 2006(2)
ALL MR 239,
239 death of passenger travelling in goods
vehicle had occurred and it was held that the
insurance company cannot be made liable to pay
compensation if the passenger is travelling in the
goods vehicle. It was not relevant as to whether the
passenger was travelling as fare paying passenger or
as a gratuitous passenger. The learned advocate for
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respondent Nos. 1 to 6 wanted this Court to rely on
para 6 in which direction was given to the insurance
company to satisfy the award and then recover the same
from owner of the vehicle. In that case the direction
was also given for the purpose of said recovery that
it would not be necessary for the insurer to file
separate suit, but it may initiate proceeding before
the executing court as if dispute between insurer and
owner was subject matter for determination before the
Tribunal.
15. Reliance
ig was placed on the case of New India
Assurance Co. Ltd.V/s. Asha Rani and others, 2002
AIR SCW 5259.
5259 In that case, in para 9 the following
observations are made:-
“9………… If the Motor Vehicles Amended
Act of 1994 is examined, particularly Section
46 of Act 6 of 1991 by which expression
‘injury to any person’ in the original Act
stood substituted by the expression ‘injury to
any person including owner of the goods or his
authorised representative carried in the
vehicle’ the conclusion is irresistible that
prior to the aforesaid Amendment Act of 1994,
even if widest interpretation is given to the
expression ‘to any person’ it will not cover
either the owner of the goods or his
authorised representative being carried in the
vehicle. The objects and reasons of clause 46
also states that it seeks to amend Section 147
to include owner of the goods or his
authorised representative carried in the
vehicle for the purposes of liability under
the Insurance Policy. It is no doubt true
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that sometimes the legislature amends the law
by way of amplification of an inherent
position which is there in the statute, but a
plain meaning being given to the words used in
the statute, as it stood prior to its
amendment of 1994, and as it stands subsequent
to its amendment in 1994 and bearing in mind
the objects and reasons engrafted in the
amended provisions referred to earlier, it is
difficult for us to construe that the
expression ‘including owner of the goods or
his authorised representative carried in the
vehicle which was added to the pre-existed
expression ‘injury to any person’ is either
clarificatory or amplification of the
pre-existing statute. On the other hand it
clearly demonstrates that the legislature
wanted to bring within the sweep of Section
147 and making it compulsory for the insurer
to insure even in case of a goods vehicle, the
owner
of the goods
representative
or his
being carried in a
authorised
goods
vehicle when that vehicle met with an accident
and the owner of the goods or his
representative either dies or suffers bodily
injury. The judgment of this Court in
Satpal’s case, therefore must be held to have
not been correctly decided and the impugned
judgment of the Tribunal as well as that of
the High Court accordingly are set aside and
these appeals are allowed.”
16. In this case accident had occurred on
22.01.2001. Even in the case of National Insurance
Co. Ltd. V/s. Bommithi Subbhayamma and others, 2005
ACJ 721, it is held that where gratuitous passenger is
travelling in goods vehicle, insurance company is not
liable.
17. The learned advocate for the respondent stated
that in view of the observations of para 11 in the
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case of M/s. National Insurance Co. Ltd. V/s.
Prakash Sakharam Dudhankar & Ors., 2006(2) ALL MR 239,
239
this Court should direct the insurance company to pay
the amount and recover it from the owner. The learned
advocate for the appellant relied upon case of
Oriental Insurance Co.Ltd. V/s. Rashanna Laxmanrao
Biradar, 2007(3) Bom.C.R.377, in which after referring
to various authorities it is observed that directions
given by the Supreme Court in 2007 AIR SCW 3734 and
2004 ACJ 428 cannot be construed as ratio laid down in
that behalf.
The same powers, which are available to
the Apex Court under Article 136 and under Article 142
of the Constitution, are not available to the Tribunal
or High Court. The Apex Court did not, however, lay
down that in all such cases, the insurer shall first
be liable to pay and then recover it from the insured.
18. Considering the facts and circumstances of the
case I am inclined to allow the appeal and also
inclined to give direction similar to one given in the
case of M/s. National Insurance Co. Ltd. Vs.
Prakash Sakharam Dudhankar (Supra),
(Supra) so far amounts
already received by the respondent Nos. 1 to 6.
However, I agree with observations made by this Court
in para 19 & 20 of United India Insurance Co. V/s.
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Anubai Thakare, 2008 (1) Mh.L.J.73. The law is
correctly enunciated therein.
19. In this case the insurance company has
produced insurance policy at Exh.35 and limitations
are typed on the insurance certificate. The
certificate makes it clear that "(2) The policy does
not cover use whilst drawing a trailer except the
towing (other than reward) of any one disabled
mechanically propelled vehicles. (3) Use for carrying
driver)
passengers in the vehicle except employees (other than
not exceeding six in number coming under the
purview of the Workmen’s Compensation Act, 1923. Use
only for carriage of goods within the meaning of the
Motor Vehicles Act, 1988.” These limitations clearly
show that the gratuitous passengers are not included.
What is included is risk of six employees and
obviously that is provision for coolies or “Hamals”
taken for loading and unloading. This appears to be
the reason for the petitioners to take plea that
deceased was a “Hamal” (coolie) or that he was a
cleaner.
20. This Court is not satisfied that the deceased
was in any way employed by respondent No. 7 who was
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stationed at Indore and doing business at Indore.
Now, it is well settled law that passengers cannot be
carried in a goods carriage vehicle. In-fact, it is
an offence to carry passengers in a goods carriage
vehicle under the Motor Vehicles Act, 1988.
21. I may refer to paras 13 & 14 of National
Insurance Co. Ltd. V/s. Prema Devi & Ors., 2008 AIR
SCW 2023,
2023 which are as follows:-
“13. The difference in the language of “goods
vehicle” as appear in the old Act and “goods
carriage” in the Act is of significance. A
bare reading of the provisions makes it clearthat the legislative intent was to prohibit
goods vehicle from carrying any passenger.
This is clear from the expression “in addition
to passengers” as contained in definition of
“goods vehicle” in the old Act. The position
becomes further clear because the expressionused is “goods carriage” is solely for the
carriage of goods. Carrying of passengers ina goods carriage is not contemplated in the
Act. There is no provision similar to Clause
(ii) of the proviso appended to Section 95 of
the old Act prescribing requirement of
insurance policy. Even Section 147 of the Actmandates compulsory coverage against death of
or bodily injury to any passenger of “public
service vehicle”. The proviso makes it
further clear that compulsory coverage in
respect of drivers and conductors of public
service vehicle and employees carried in goods
vehicle would be limited to liability underthe Workmen’s Compensation Act, 1923 (in short
“WC Act.”). There is no reference to any
passenger in “goods carriage”.
14. The inevitable conclusion, therefore, is
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to get his vehicle insured for any passenger
travelling in a goods carriage and the insurer
would have no liability therefor.”
22. Taking into consideration all circumstances
and clear mention in the insurance certificate that no
passenger is to be carried and the use only should be
for carriage of goods within the meaning of Motor
Vehicles Act, I hold that there is breach of
conditions of the policy. The insurance company is
not liable to pay.
23. In
the result the appeal is allowed. The
order of the Motor Accident Claims Tribunal, Hingoli,
as against the appellant is hereby set aside. The
award is, however, confirmed against respondent No.7 –
Pankajkumar s/o. Champaklal Gandhi (owner of the
truck in question).
. At the same time it is directed that if
already the amount is deposited by the appellant and
paid to respondent Nos. 1 to 6, in that case the
insurance company is directed to recover the amount
paid to respondent Nos. 1 to 6 from the owner of the
vehicle i.e. respondent No. 7 and for the purpose of
said recovery, it would not be necessary for the
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insurer to file a separate suit, but it may initiate a
proceeding before the executing Court as if the
dispute between the insurer and the owner was the
subject matter of determination, before the Tribunal.
24. The appeal is disposed of accordingly.
Parties to bear their own costs.
[P.R. BORKAR, J.]
.
Advocate
After
Shri
igpronouncement of the judgment as above,
Gatne pointed out that already N.F.L.
amount is deposited and paid to respondent Nos. 1 to
6. However, rest of the amount is only deposited and
there is no order of payment. Considering the two
cases of this Court referred to above, this Court is
of the opinion that when already the amount is
deposited and paid to the L.Rs., it is preferable that
the insurance company should proceed against the owner
of the vehicle to recover the same as he would be
primarily liable to pay the said amount to the
claimants. Otherwise, there would be two proceedings,
one by the insurance company against the claimants for
recovery and another for recovery by claimants against
the owner. Whenever, the amounts are not paid to the
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claimants, it is not proper that the insurance company
should be asked to bear the liability and then recover
it from the owner as if the insurance company is an
agent of the claimant to recover the amount. In the
circumstances, if any amount is deposited by the
appellant/insurance company in the Court and not paid
to the claimants, the same may be refunded back to the
insurance company. Such amount which is not paid
already, can be recovered by the claimants from the
owner of the vehicle.
ig [P.R. BORKAR, J.]
snk/2008/AGU08/fa1618.07
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