{"id":245972,"date":"2008-08-04T00:00:00","date_gmt":"2008-08-03T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/united-india-insurance-co-ltd-vs-sayaji-on-4-august-2008"},"modified":"2015-06-28T15:27:06","modified_gmt":"2015-06-28T09:57:06","slug":"united-india-insurance-co-ltd-vs-sayaji-on-4-august-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/united-india-insurance-co-ltd-vs-sayaji-on-4-august-2008","title":{"rendered":"United India Insurance Co. Ltd vs Sayaji on 4 August, 2008"},"content":{"rendered":"
Bombay High Court<\/div>\n
United India Insurance Co. Ltd vs Sayaji on 4 August, 2008<\/div>\n
Bench: P. R. Borkar<\/div>\n
           IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n                      BENCH AT AURANGABAD.\n\n\n                 FIRST APPEAL NO. 1618 OF 2007\n\n\n\n\n                                                                 \n     United India Insurance Co. Ltd.        ]..Appellant\n     Parbhani through its Divisional\n\n\n\n\n                                         \n     Manager and Authorised Representative\n     and Signatory, Nanded Divisional Office,\n     Guru Complex, G.G. Road, Nanded,\n     Dist. Nanded.\n\n\n\n\n                                        \n                             VERSUS\n\n\n     1. Sayaji s\/o. Masuji Shinde                ]..Respondents\n        Age. 65 years, Occ. Nil,\n\n\n\n\n                             \n     2. Yamunabai w\/o Sayaji Shinde\n        Age. 60 years, Occ. Household,\n                  \n     3. Girjabai w\/o. Gajanan Shinde\n        Age. 28 years, Occ. Household,\n                 \n     4. Ku. Asarabai d\/o. Gajanan Shinde\n        Age. 11 years, Occ. Education,\n\n     5. Ku. Ranjana d\/o. Gajanan Shinde,\n        Age. 8 years, Occ. Nil,\n      \n\n\n     6. Ku. Swati d\/o. Gajanan Shinde,\n        Age. 6 years, Occ. Nil,\n   \n\n\n\n        Respondent Nos.4 to 6 are minors and\n        u\/g of real mother Respondent No.3.\n        All are r\/o. Shinde Wadi, Pan Kanergaon,\n        Tal. Sengaon, Dist. Hingoli.\n\n\n\n\n\n     7. Pankajkumar s\/o. Champaklal Gandhi\n        Age. Major, Occ. Business, R\/o. 221,\n        T.P. Nagar, Indoor (M.P.).\n\n\n     Shri A.B.Gatne, Advocate for the appellant.\n\n\n\n\n\n     Shri P.S.Agrawal, Advocate for respondent Nos. 1 to 6.\n\n\n                                CORAM : P.R. BORKAR, J.\n                          RESERVED ON : 29.07.2008\n                        PRONOUNCED ON : 04.08.2008\n\n\n\n\n                                         ::: Downloaded on - 09\/06\/2013 13:39:31 :::\n                                                    (   2    )\n\n\n\n\n     JUDGMENT :\n<\/pre>\n
     .            Shri        A.B.         Gatne, Advocate for the                   appellant<\/p>\n
     and     Shri P.S.                Agrawal, Advocate for respondent                        Nos.\n<\/p>\n
     1     to 6 are present.                     With the consent of the                parties<\/p>\n
     this     appeal             is     heard       finally        at     the      stage         of<\/p>\n
     admission.<\/p>\n
\n\n\n\n     2.           This        is an appeal preferred by the                          insurance\n\n\n\n\n                                                      \n     company,           which         is     original           opponent        No.2         being\n\n     aggrieved           by\n                               ig the       judgment and award passed                   by     the\n\n     Member,          Motor           Accident Claims Tribunal,                  Hingoli         in\n                             \n     M.A.C.P.              No.         176       of 2001 decided          on     10.10.2005.\n\n     Respondent             Nos.           1 to 6 are the original                 claimants.\n\n     They     are legal heirs of deceased Gajanan s\/o.                                    Sayaji\n      \n\n\n     Shinde,          who        was       son     of respondent No.               1    and      2,\n   \n\n\n\n     husband          of      respondent No.3 and father of                        respondent\n\n     Nos.         4     to       6.     Respondent No.7 is the                  insured        and\n\n\n\n\n\n     owner of truck No.                    MP-09-KA-9549.\n\n\n\n     3.           It        is original case of the claimants that                               on\n\n     22.01.2001             the       deceased         Gajanan was          travelling           in\n\n\n\n\n\n     Truck        No.       MP-09-KA-6549 and went to Chor Pangra.                               He\n\n     was     on       duty as a cleaner.                   One Shaikh Abdul was                the\n\n     driver        of       the        said       truck.        When      the      truck       was\n\n\n\n\n                                                                  ::: Downloaded on - 09\/06\/2013 13:39:31 :::<\/span>\n                                                 (    3   )\n\n\n\n\n     returning              back,       it    was        being      driven        rashly          &\n\n     negligently             and     in excessive speed.                 When the          truck\n\n\n\n\n                                                                                         \n     came     near Ganeshpur, the driver lost his control                                     and\n\n     suddenly          he     applied breaks.                Due to severe jerk               and\n\n\n\n\n                                                                 \n     fast     speed          of the truck, the deceased was thrown                              on\n\n     road     and had sustained severe injuries and                                 fractures\n\n\n\n\n                                                                \n     on     various parts of the body and become                               unconscious.\n\n<\/pre>\n
     He was taken to the hospital at Risod, but died on the<\/p>\n
     next     day.          In the claim petition it is also mentioned<\/p>\n
     that     deceased             Gajanan          had gone to Chor            Pangra        for<\/p>\n
     taking<\/p>\n
     out<\/p>\n
                  Jawar and Wheat.                  Thus the original case<\/p>\n
             in the claim petition is that Gajanan was on duty
\n                                                                                             made<\/p>\n
     as     a cleaner and as such an employee of owner of                                     the<\/p>\n
     truck respondent No.7-Pankajkumar Gandhi.\n<\/p>\n
     4.           It         is     argued          on    behalf       of      the     present<\/p>\n
     appellant that in-fact, Gajanan was one of the members<\/p>\n
     of      a    marriage              party        which     was     illegally           being<\/p>\n
     transported             in     the      truck.      Gajanan was            sitting         on<\/p>\n
     “Falka”       (rear side of wooden gate of the truck).                                     As<\/p>\n
     he     was    hit against a branch of a tree, he fell                                   down<\/p>\n
     from     the truck and sustained injuries.                              In the truck,<\/p>\n
     passengers             were     being carried illegally.                     There       was<\/p>\n
     breach       of terms and conditions policy and as such the<\/p>\n
     appellant          is        not     liable.        The     appellant          does      not<\/p>\n
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\n                                          (    4     )<\/p>\n
     dispute         the     award of compensation of Rs.2                      lakhs       to<\/p>\n
     respondent            Nos.    1 to 6.     It is stated that the owner<\/p>\n
     of   the        truck is liable and the                 appellant          insurance<\/p>\n
     company         is not liable to reimburse the owner of                             said<\/p>\n
     compensation            due to breach of terms and conditions of<\/p>\n
     the policy.\n<\/p>\n
     5.         It         is also argued before this Court that                          the<\/p>\n
     Trial      Court        has    not considered            this       aspect        while<\/p>\n
     deciding the matter inspite of the fact that there was<\/p>\n
     evidence<\/p>\n
     filed      by     the<\/p>\n
                      led by the appellant.\n<\/p>\n
                                  appellant    is\n                                                         The written statement\n\n                                                        at    Exh.12        and      it     is\n                           \n     specifically            stated that deceased Gajanan was not                           on\n\n     duty as a cleaner.              He was not carrying any goods like\n\n     Wheat      and        Jawar.      When the         written         statement         was\n      \n\n\n     filed,      necessary          particulars of the policy were                        not\n   \n\n\n\n     given.          Therefore, it is also stated that the                           policy\n\n<\/pre>\n
     was not obtained, but now it is admitted position that<\/p>\n
     the policy was obtained.                 It is further stated in para<\/p>\n
     19 that there was breach of policy terms as passengers<\/p>\n
     were carried in the goods truck.<\/p>\n
\n\n\n\n\n\n     6.         Girjabai           (respondent      No.3)          is      examined         at\n\n     Exh.27.          She     stated that the incident took place                           at\n\n     about      7     1\/2 years ago.          On that day along                 with      her\n\n\n\n\n                                                             ::: Downloaded on - 09\/06\/2013 13:39:31 :::<\/span>\n                                              (    5    )\n\n\n\n\n     husband,          she     and     respondent No.1 had gone                    to     Chor\n\n     Pangra       to     see     her         ailing        maternal       uncle.          They\n\n\n\n\n                                                                                       \n<\/pre>\n
     purchased one quintal Wheat and one quintal Jawar from<\/p>\n
     her     uncle and kept it in the truck which was to                                  come<\/p>\n
     to    Chor        Pangra.         Near       Ganeshpur,        when       they       were<\/p>\n
     travelling with the goods, the truck was in high speed<\/p>\n
     and due to negligence of the driver, the deceased fell<\/p>\n
     down from the truck and sustained injury on the head.\n<\/p>\n
     7.         So, the case that the deceased was employee of<\/p>\n
     the truck owner and was on duty as a cleaner is not at<\/p>\n
     all     stated by the witness of the claimants.                               In     para<\/p>\n
     3,    respondent No.3-Girjabai stated that the                                deceased<\/p>\n
     was     doing work as a “Hamal” (coolie), but in the same<\/p>\n
     breath       she stated that elder brother of the                             deceased<\/p>\n
     owned     an Adat Shop and the deceased was working as                                    a<\/p>\n
     “Hamal”       with        him     and       was   getting        Rs.        150\/-       to<\/p>\n
     Rs.175\/- per day.               It is contrary to what is stated in<\/p>\n
     the     claim petition.            In cross-examination the witness<\/p>\n
     admitted          that    she     had        given     instructions            to     her<\/p>\n
     advocate and accordingly the claim petition was filed.\n<\/p>\n
     She     also said that the claim petition is filed on the<\/p>\n
     basis of police papers.                     She admitted that she had not<\/p>\n
     stated       in     the     claim petition that her                    husband        was<\/p>\n
     working as a “Hamal” with his brother.\n<\/p>\n
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                                         (   6   )<\/p>\n
     8.         At     Exh.30     Shivaji       Shinde – brother            of     the<\/p>\n
     deceased        is examined.       He was not eye-witness to                  the<\/p>\n
     incident, but he said that the deceased was working as<\/p>\n
     a “Hamal” in his shop.             It falsifies the case made out<\/p>\n
     in the claim petition that the deceased was working as<\/p>\n
     a cleaner on the truck.\n<\/p>\n
     9.         On     behalf     of    the appellant,          Advocate          Shri<\/p>\n
     Mahendra        Gaikwad is examined as a witness at                    Exh.32.\n<\/p>\n
     collected<\/p>\n
     He was appointed as an Investigator in the matter.\n<\/p>\n
                       copies      of       F.I.R.,      spot        panchanama,
\n                                                                                     He<\/p>\n
     statements of the witnesses and produced them with his<\/p>\n
     report.         His     investigation showed that the                 deceased<\/p>\n
     and his wife with other persons were travelling in the<\/p>\n
     said     truck,       free   of    costs, along        with       bride       and<\/p>\n
     bridegroom,        who     were    sitting     in     the      cabin.         The<\/p>\n
     deceased        was sitting on wooden “Falka”.                 He fell down<\/p>\n
     and    died on the spot.           The witness proved his                report<\/p>\n
     at Exh.33.\n<\/p>\n
     10.        In     this case Arun Jawanjal, Branch Manager of<\/p>\n
     the appellant-insurance company is examined at Exh.34.\n<\/p>\n
     He produced copy of insurance note at Exh.35.                          He also<\/p>\n
     proved     the        letter appointing Advocate Shri                 Mahendra<\/p>\n
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\n                                              (   7    )<\/p>\n
     Gaikwad as an Investigator.\n<\/p>\n
     11.          In      this       case the petitioners            have       produced<\/p>\n
     certified         copies        of the F.I.R., spot panchanama                     and<\/p>\n
     inquest        panchanama.            Since they are certified copies,<\/p>\n
     they     can      be read in evidence without any                      additional<\/p>\n
     proof.         Those        are       public      documents.         Along        with<\/p>\n
     Exh.23,        certified copies of F.I.R., spot                      panchanama,<\/p>\n
     inquest        panchanama, post mortem notes and                       statements<\/p>\n
     of     witnesses          recorded by the police are produced                        by<\/p>\n
     the<\/p>\n
     clearly
\n             appellant.<\/p>\n
\n\n                    shows\n                            ig       The     certified copy\n\n<\/pre>\n
                                 that deceased Gajanan was a member
\n                                                                   of     the      F.I.R.\n<\/p>\n
                                                                                          of<\/p>\n
     the     marriage party which was being transported in the<\/p>\n
     goods        truck        No.     MP-01-KA-6549.       It is mentioned               in<\/p>\n
     the complaint lodged by Head Constable Khandalkar that<\/p>\n
     on investigation he came to know that deceased Gajanan<\/p>\n
     had     gone to Chor Pangra for attending a marriage                               and<\/p>\n
     he     was     returning after marriage in the                      truck       along<\/p>\n
     with     other persons.               The bride, bridegroom and ladies<\/p>\n
     were     sitting          in cabin and other were sitting in                       the<\/p>\n
     back side.           The deceased fell down from the truck.\n<\/p>\n
     12.          In      my     considered          opinion, the        Trial       Court<\/p>\n
     could not have ignored the change in the case made out<\/p>\n
     by     the     appellant.             It is no more disputed             that      the<\/p>\n
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\n                                                  (    8    )<\/p>\n
     truck in question was a goods carriage vehicle and not<\/p>\n
     a     passenger        carrier           vehicle and           as     such       question<\/p>\n
     arises     whether risk of death of passenger is covered.\n<\/p>\n
     Absolutely,           there        is       no evidence to show                 that     the<\/p>\n
     deceased        was     travelling in the truck as an owner                                of<\/p>\n
     goods.      The        original case made out in                        the      petition<\/p>\n
     that     deceased        was travelling as a cleaner                            has     been<\/p>\n
     given     complete go-by by petitioner Girjabai.                                  She has<\/p>\n
     made out a new case.                    In the circumstances the defence<\/p>\n
     cannot be lightly brushed aside.                            Since Motor Accident<\/p>\n
     Claims<\/p>\n
     evidence
\n                Tribunal
\n                            ig     is        a        tribunal,<\/p>\n
                     are not applicable and the Tribunal can very
\n                                                                      strict         rules      of<\/p>\n
     well     consider        what was the case made out before                               the<\/p>\n
     Police     after the incident.                       This Court can take                into<\/p>\n
     consideration            the            certified           copies        of      various<\/p>\n
     documents on record.\n<\/p>\n
     13.        In     support           of          their argument,           the     learned<\/p>\n
     advocates        for the appellant and the respondents cited<\/p>\n
     few     cases.        The case of Oriental Insurance Co.                                Ltd.\n<\/p>\n
     V\/s.      Premlata Shukla and Ors., 2007 AIR SCW 3591                                      is<\/p>\n
     cited    for the proposition that where party brings                                       on<\/p>\n
     record    certain        documents,                  such      party       cannot          be<\/p>\n
     permitted to contend that only part of the contents of<\/p>\n
     the     documents should be read which are convenient                                      to<\/p>\n
                                                                 ::: Downloaded on – 09\/06\/2013 13:39:31 :::<\/span>
\n                                        (     9    )<\/p>\n
     it and rest part should not be read in evidence.                                 Once<\/p>\n
     document          is admitted in evidence, it can be read as a<\/p>\n
     whole.        In     this    case,      the      petitioner          has         filed<\/p>\n
     certified         copies of the F.I.R.            on record and now                it<\/p>\n
     does     not lie in the mouth of respondent Nos.                            1 to     6<\/p>\n
     that     the same should not be considered merely because<\/p>\n
     its     contents         are against the case made out by                        them.\n<\/p>\n
     The     petitioner wants this Court to rely on                         certified<\/p>\n
     copies       produced by respondent Nos.1 to 6 to hold that<\/p>\n
     deceased          Gajanan, who was travelling in the truck                         in<\/p>\n
     question fell down from the truck and died as a result<\/p>\n
     of     injuries sustained.            They also want this court                    to<\/p>\n
     rely     on the copy of the policy on record to show that<\/p>\n
     respondent         No.7     was the owner and the appellant                       was<\/p>\n
     the insurer of the truck in question.\n<\/p>\n
     14.          In    the    case of M\/s.           National Insurance               Co.<\/p>\n
\n\n     Ltd.    V\/s.       Prakash Sakharam Dudhankar & Ors., 2006(2)\n\n     ALL     MR   239,\n                  239 death of passenger travelling                         in     goods\n\n\n\n\n\n     vehicle      had     occurred     and       it     was      held       that       the\n\n     insurance         company    cannot     be        made      liable          to    pay\n\n     compensation         if     the passenger is travelling                     in    the\n\n\n\n\n\n     goods     vehicle.        It was not relevant as to whether the\n\n     passenger         was travelling as fare paying passenger                          or\n\n     as    a gratuitous passenger.               The learned advocate                  for\n\n\n\n\n                                                         ::: Downloaded on - 09\/06\/2013 13:39:31 :::<\/span>\n                                    (   10   )\n\n\n\n\n     respondent      Nos.    1 to 6 wanted this Court to rely                  on\n\n     para     6 in which direction was given to the                insurance\n\n\n\n\n                                                                         \n<\/pre>\n
     company to satisfy the award and then recover the same<\/p>\n
     from owner of the vehicle.         In that case the direction<\/p>\n
     was     also given for the purpose of said recovery                    that<\/p>\n
     it     would    not    be necessary for the insurer             to     file<\/p>\n
     separate       suit, but it may initiate proceeding                before<\/p>\n
     the     executing court as if dispute between insurer and<\/p>\n
     owner     was subject matter for determination before the<\/p>\n
     Tribunal.<\/p>\n
\n\n\n\n     15.        Reliance\n                        ig   was placed on the case of New                India\n                      \n     Assurance      Co.     Ltd.V\/s.   Asha Rani and others,                2002\n\n     AIR    SCW 5259.\n                5259       In that case, in para 9 the             following\n\n     observations are made:-\n      \n\n\n<\/pre>\n
               “9…………   If the Motor Vehicles Amended<\/p>\n
               Act of 1994 is examined, particularly Section
\n               46 of Act 6 of 1991 by which expression
\n               ‘injury to any person’ in the original Act
\n               stood substituted by the expression ‘injury to
\n               any person including owner of the goods or his<\/p>\n
               authorised representative carried     in   the
\n               vehicle’ the conclusion is irresistible that
\n               prior to the aforesaid Amendment Act of 1994,
\n               even if widest interpretation is given to the
\n               expression ‘to any person’ it will not cover
\n               either   the owner of     the goods or     his
\n               authorised representative being carried in the<\/p>\n
               vehicle. The objects and reasons of clause 46
\n               also states that it seeks to amend Section 147
\n               to   include owner of     the goods or     his
\n               authorised representative carried     in   the
\n               vehicle for the purposes of liability under
\n               the Insurance Policy. It is no doubt true<\/p>\n
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\n                                       (    11   )<\/p>\n
                 that sometimes the legislature amends the law
\n                 by way of amplification      of an    inherent
\n                 position which is there in the statute, but a
\n                 plain meaning being given to the words used in<\/p>\n
                 the   statute, as it     stood prior to its
\n                 amendment of 1994, and as it stands subsequent
\n                 to its amendment in 1994 and bearing in mind<\/p>\n
                 the objects and reasons engrafted in the
\n                 amended provisions referred to earlier, it is
\n                 difficult   for us to     construe that    the
\n                 expression ‘including owner of the goods or
\n                 his authorised representative carried in the<\/p>\n
                 vehicle which was added to the pre-existed
\n                 expression ‘injury to any person’ is either
\n                 clarificatory   or   amplification    of   the
\n                 pre-existing statute.    On the other hand it
\n                 clearly demonstrates that     the legislature
\n                 wanted to bring within the sweep of Section<\/p>\n
                 147 and making it compulsory for the insurer
\n                 to insure even in case of a goods vehicle, the
\n                 owner<\/p>\n
                         of the goods
\n                 representative
\n                                          or   his
\n                                  being carried in a
\n                                                     authorised
\n                                                          goods
\n                 vehicle when that vehicle met with an accident
\n                 and   the   owner   of   the goods    or   his<\/p>\n
                 representative either dies or suffers bodily
\n                 injury.   The judgment of     this Court    in
\n                 Satpal’s case, therefore must be held to have
\n                 not been correctly decided and the impugned
\n                 judgment of the Tribunal as well as that of
\n                 the High Court accordingly are set aside and<\/p>\n
                 these appeals are allowed.”\n<\/p>\n
     16.         In    this    case       accident      had      occurred           on<\/p>\n
     22.01.2001.        Even    in the case of National                 Insurance<\/p>\n
     Co.    Ltd.      V\/s.   Bommithi Subbhayamma and others, 2005<\/p>\n
     ACJ 721, it is held that where gratuitous passenger is<\/p>\n
     travelling       in goods vehicle, insurance company is not<\/p>\n
     liable.\n<\/p>\n
     17.       The learned advocate for the respondent stated<\/p>\n
     that   in     view of the observations of para 11                     in     the<\/p>\n
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\n                                           (   12   )<\/p>\n
     case     of       M\/s.     National Insurance          Co.       Ltd.            V\/s.\n<\/p>\n
     Prakash Sakharam Dudhankar & Ors., 2006(2) ALL MR 239,
\n                                                       239<\/span><\/p>\n
     this     Court should direct the insurance company to pay<\/p>\n
     the amount and recover it from the owner.                        The learned<\/p>\n
     advocate          for    the    appellant     relied        upon          case    of<\/p>\n
     Oriental          Insurance Co.Ltd.       V\/s.     Rashanna           Laxmanrao<\/p>\n
     Biradar, 2007(3) Bom.C.R.377, in which after referring<\/p>\n
     to     various authorities it is observed that directions<\/p>\n
     given       by        the Supreme Court in 2007 AIR SCW 3734                     and<\/p>\n
     2004 ACJ 428 cannot be construed as ratio laid down in<\/p>\n
     that    behalf.\n<\/p>\n
                              The same powers, which are available to<\/p>\n
     the Apex Court under Article 136 and under Article 142<\/p>\n
     of the Constitution, are not available to the Tribunal<\/p>\n
     or     High Court.         The Apex Court did not, however,                      lay<\/p>\n
     down    that in all such cases, the insurer shall                           first<\/p>\n
     be liable to pay and then recover it from the insured.\n<\/p>\n
     18.          Considering the facts and circumstances of the<\/p>\n
     case    I        am    inclined     to allow the       appeal         and       also<\/p>\n
     inclined to give direction similar to one given in the<\/p>\n
     case    of       M\/s.      National      Insurance      Co.        Ltd.          Vs.<\/p>\n
     Prakash       Sakharam         Dudhankar (Supra),
\n                                              (Supra) so             far       amounts<\/p>\n
     already       received         by   the respondent Nos.               1    to     6.\n<\/p>\n
     However,         I agree with observations made by this Court<\/p>\n
     in    para       19 & 20 of United India Insurance Co.                        V\/s.\n<\/p>\n
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                                             (   13    )\n\n\n\n\n     Anubai        Thakare,       2008      (1)      Mh.L.J.73.          The     law      is\n\n     correctly enunciated therein.\n\n\n\n\n                                                                                   \n     19.        In     this       case      the      insurance         company           has\n\n\n\n\n                                                           \n     produced        insurance         policy at Exh.35 and               limitations\n\n     are      typed        on    the        insurance       certificate.                The\n\n\n\n\n                                                          \n     certificate           makes it clear that \"(2) The policy                         does\n\n     not     cover     use       whilst drawing a trailer                 except        the\n\n     towing        (other       than     reward)      of    any      one         disabled\n\n\n\n\n                                               \n     mechanically propelled vehicles.                      (3) Use for carrying\n\n\n\n     driver)\n                           \n<\/pre>\n
     passengers in the vehicle except employees (other than<\/p>\n
                    not exceeding six in number coming under                            the<\/p>\n
     purview        of the Workmen’s Compensation Act, 1923.                            Use<\/p>\n
     only     for carriage of goods within the meaning of                               the<\/p>\n
     Motor     Vehicles Act, 1988.” These limitations                            clearly<\/p>\n
     show     that the gratuitous passengers are not included.\n<\/p>\n
     What     is     included          is   risk      of    six      employees           and<\/p>\n
     obviously        that       is provision for coolies or                    “Hamals”\n<\/p>\n
     taken     for loading and unloading.                   This appears to               be<\/p>\n
     the     reason        for    the petitioners to             take       plea       that<\/p>\n
     deceased        was     a    “Hamal” (coolie) or that                  he     was      a<\/p>\n
     cleaner.<\/p>\n
\n\n\n\n\n\n     20.        This        Court is not satisfied that the deceased\n\n     was     in any way employed by respondent No.                          7 who       was\n\n\n\n\n                                                           ::: Downloaded on - 09\/06\/2013 13:39:31 :::<\/span>\n                                        (    14   )\n\n\n\n\n     stationed        at    Indore    and doing business            at     Indore.\n\n     Now,     it is well settled law that passengers cannot be\n\n\n\n\n                                                                             \n     carried       in a goods carriage vehicle.              In-fact, it            is\n\n     an     offence        to carry passengers in a          goods        carriage\n\n\n\n\n                                                     \n<\/pre>\n
     vehicle under the Motor Vehicles Act, 1988.\n<\/p>\n
     21.       I      may    refer    to paras 13 &        14      of     National<\/p>\n
     Insurance Co.          Ltd.     V\/s.   Prema Devi & Ors., 2008 AIR<\/p>\n
     SCW 2023,
\n         2023 which are as follows:-\n<\/p>\n
               “13. The difference in the language of “goods
\n               vehicle” as appear in the old Act and “goods
\n               carriage” in the Act is of significance.      A
\n               bare reading of the provisions makes it clear<\/p>\n
               that the legislative intent was to prohibit
\n               goods vehicle from carrying any passenger.
\n               This is clear from the expression “in addition
\n               to passengers” as contained in definition of
\n               “goods vehicle” in the old Act. The position
\n               becomes further clear because the expression<\/p>\n
               used is “goods carriage” is solely for the
\n               carriage of goods. Carrying of passengers in<\/p>\n
               a goods carriage is not contemplated in the
\n               Act.    There is no provision similar to Clause\n<\/p><\/blockquote>\n
               (ii) of the proviso appended to Section 95 of
\n               the   old Act     prescribing requirement    of
\n               insurance policy. Even Section 147 of the Act<\/p>\n
               mandates compulsory coverage against death of
\n               or bodily injury to any passenger of “public
\n               service    vehicle”.   The   proviso makes it
\n               further clear that compulsory coverage in
\n               respect of drivers and conductors of public
\n               service vehicle and employees carried in goods
\n               vehicle would be limited to liability under<\/p>\n
               the Workmen’s Compensation Act, 1923 (in short
\n               “WC Act.”).     There is no reference to any
\n               passenger in “goods carriage”.\n<\/p><\/blockquote>\n
               14.         The inevitable conclusion, therefore, is
\n               that        provisions of the Act do not enjoin any<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 13:39:31 :::<\/span>
\n                                            (    15    )<\/p>\n
                statutory liability on the owner of a vehicle
\n                to get his vehicle insured for any passenger
\n                travelling in a goods carriage and the insurer
\n                would have no liability therefor.”\n<\/p><\/blockquote>\n
     22.        Taking       into     consideration all                  circumstances<\/p>\n
     and clear mention in the insurance certificate that no<\/p>\n
     passenger        is to be carried and the use only should be<\/p>\n
     for     carriage        of     goods within the meaning                    of      Motor<\/p>\n
     Vehicles        Act,     I     hold       that       there      is     breach          of<\/p>\n
     conditions        of     the policy.            The insurance company                  is<\/p>\n
     not liable to pay.\n<\/p>\n
     23.        In<\/p>\n
                       the     result          the appeal is           allowed.           The<\/p>\n
     order     of the Motor Accident Claims Tribunal, Hingoli,<\/p>\n
     as     against     the appellant is hereby set                        aside.         The<\/p>\n
     award is, however, confirmed against respondent No.7 –\n<\/p>\n
     Pankajkumar        s\/o.        Champaklal            Gandhi (owner            of     the<\/p>\n
     truck in question).\n<\/p>\n
     .          At     the     same     time         it is      directed          that      if<\/p>\n
     already       the amount is deposited by the appellant                               and<\/p>\n
     paid     to     respondent        Nos.       1 to 6, in that               case      the<\/p>\n
     insurance        company       is directed to recover the                       amount<\/p>\n
     paid     to respondent Nos.               1 to 6 from the owner of the<\/p>\n
     vehicle i.e.           respondent No.            7 and for the purpose of<\/p>\n
     said     recovery,        it     would not be            necessary           for     the<\/p>\n
                                                             ::: Downloaded on – 09\/06\/2013 13:39:31 :::<\/span>
\n                                             (    16     )<\/p>\n
     insurer to file a separate suit, but it may initiate a<\/p>\n
     proceeding          before       the       executing       Court       as     if     the<\/p>\n
     dispute          between     the       insurer and the owner                 was     the<\/p>\n
     subject matter of determination, before the Tribunal.\n<\/p>\n
     24.          The        appeal     is        disposed         of      accordingly.\n<\/p>\n
     Parties to bear their own costs.\n<\/p>\n
                                                        [P.R. BORKAR, J.]<\/p>\n
     .\n<\/p>\n
     Advocate
\n                 After<\/p>\n
                      Shri
\n                           igpronouncement of the judgment as above,<\/p>\n
                              Gatne pointed out that already                         N.F.L.\n<\/p>\n
     amount       is deposited and paid to respondent Nos.                               1 to<\/p>\n
     6.      However, rest of the amount is only deposited and<\/p>\n
     there       is     no order of payment.                Considering           the     two<\/p>\n
     cases       of this Court referred to above, this Court                                is<\/p>\n
     of    the        opinion   that        when      already        the      amount        is<\/p>\n
     deposited and paid to the L.Rs., it is preferable that<\/p>\n
     the insurance company should proceed against the owner<\/p>\n
     of    the        vehicle   to recover the same as he                       would       be<\/p>\n
     primarily         liable     to    pay       the       said     amount        to     the<\/p>\n
     claimants.         Otherwise, there would be two proceedings,<\/p>\n
     one by the insurance company against the claimants for<\/p>\n
     recovery and another for recovery by claimants against<\/p>\n
     the     owner.      Whenever, the amounts are not paid to the<\/p>\n
                                                             ::: Downloaded on – 09\/06\/2013 13:39:31 :::<\/span>
\n                                    (    17   )<\/p>\n
     claimants, it is not proper that the insurance company<\/p>\n
     should be asked to bear the liability and then recover<\/p>\n
     it   from   the owner as if the insurance company is                         an<\/p>\n
     agent   of the claimant to recover the amount.                      In     the<\/p>\n
     circumstances,    if    any       amount is      deposited          by     the<\/p>\n
     appellant\/insurance     company in the Court and not paid<\/p>\n
     to the claimants, the same may be refunded back to the<\/p>\n
     insurance    company.     Such       amount which is             not      paid<\/p>\n
     already,    can   be recovered by the claimants from                       the<\/p>\n
     owner of the vehicle.\n<\/p>\n
                        ig                   [P.R. BORKAR, J.]\n                      \n     snk\/2008\/AGU08\/fa1618.07\n      \n   \n\n\n\n\n\n\n                                                   ::: Downloaded on - 09\/06\/2013 13:39:31 :::<\/span>\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court United India Insurance Co. Ltd vs Sayaji on 4 August, 2008 Bench: P. R. Borkar 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-245972","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nUnited India Insurance Co. 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