Bombay High Court
Shekhar Sadanand Ghortane vs Smt.Savita Mahadeo Gaikwad on 18 January, 2010
Author: C.L.Pangarkar
Bench: C. L. Pangarkar
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.1469 OF 2009
Shekhar Sadanand Ghortane ..Appellant
Age : 50 yrs, Occu : Trade
R/o.8th Galli, Rajarampuri,
District - Kolhapur
V/s.
1. Smt.Savita Mahadeo Gaikwad
Age : 26 yrs, Occu : Household
2.
Prithviraj Mahasdeo Gaikwad
Age : 6 yrs
3. Raviraj Mahadeo Gaikwad
Age : 4 yrs
(Nos.2 and 3 are Minor represented
through Respondent No.1 as the
guardian)
..Respondents
4. Shri Hanmant Rama Gaikwad
Age : 52 yrs, Occu : Nil
5. Sou.Mandabai Hanmant Gaikwad
Age : 42 yrs, Occu : Household
All residing at Ropale (B),
Taluka - Pandharpur,
District Solapur
6. The New India Assurance Co. Ltd.
Through Divisional Manager
Pandharpur Branch, Pandharpur,
District - Solapur
Mr.M.G.Barve, Advocate, for the appellant
Mr.Sachin Pawar h/f.Mr.Sandeep Salunkhe,
Advocate, for the respondent Nos.1 to 5
Mr.D.S.Joshi, Advocate, for respondent No.6
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CORAM : C. L. PANGARKAR, J.
DATE : 18TH JANUARY, 2010
JUDGMENT
. Rule.
2. Rule, returnable forthwith.
3. Heard finally with the consent of the parties.
4. This is an Appeal by the original opponent No.1, the owner of the truck. The facts giving rise to the Appeal are as follows Respondent Nos.1 to 5 instituted an application under Section 166 of the Motor Vehicles Act, 1988 before the Motor Accident Claims Tribunal, Pandharpur, with an allegation that one Mahadeo Hanmant Gaikwad was working as a driver on truck bearing No.MH-13/G/1393 owned by the present ::: Downloaded on - 09/06/2013 15:31:23 ::: 3 appellant. There was another driver on the said truck by name Dilip alias Bapa Maruti Yadav. On 15th October, 2005 at about 4.00 P.M to 4.15 P.M. the deceased Mahadeo handed over the truck to Dilip for being driven. The deceased was sleeping in the cabin of the truck and the said truck was proceeding on Pandharpur-Miraj road. The truck was being driven in excessively high speed and in negligent manner. The said truck met with an accident as a result of which Mahadeo suffered the injuries and died. It was contended that Mahadeo was getting Rs.5000/- per month salary and he was 29 years of age. The compensation of Rs.4,00,000/- was claimed.
5. The said application was opposed by opponent No.2 The New India Assurance Company Limited. The main contention that was raised by the Insurance Company was that the deceased Mahadeo was not driver of the truck but was only a passenger travelling in the ::: Downloaded on - 09/06/2013 15:31:23 ::: 4 truck. Therefore, the Insurance Company was not liable to reimburse the appellant. It was also contended that the truck did not have permit to ply on the road on which it was being plied. The driver did not have effective and valid license. The present opponent No.1 however, did not contest the application.
6. The learned Judge of the Motor Accident Claims Tribunal found that the truck was being driven in a rash and negligent manner by the driver. Mahadeo died due to injuries suffered in the accident. The applicants/respondents were entitled to compensation of Rs.4,52,000/-. He, however, directed only the present opponent/appellant No.1 to pay the compensation and dismissed the petition as against the Insurance Company holding that the second driver i.e.the deceased Mahadeo could not be said to be covered by the Policy of Insurance Company.
::: Downloaded on - 09/06/2013 15:31:23 ::: 5However, feeling aggrieved thereby the owner opponent No.1 has preferred this Appeal.
7. The only point that arises for my consideration upon submissions made by the learned counsel is whether the deceased, who was the second driver could be said to be covered by the Policy of Insurance Company.
The learned
ig counsel for the appellant
submitted Certificate of the Insurance. He
submits that the owner of the truck had
engaged two drivers and both were travelling in the truck. He submits that the word engaged has been defined to denote the person's employment at the relevant time and not whether he was acting within the Authority. He submits that the deceased was engaged as a driver. The learned Judge of the Motor Accident Claim Tribunal has held that the deceased was the second driver and this finding is not challenged by the Insurance Company.
::: Downloaded on - 09/06/2013 15:31:23 ::: 68. There is no dispute that the owner of the truck had drawn Insurance Policy. The learned counsel for the appellant submits that the Policy shows that one driver is covered by the Policy of the Insurance Company. He submits that therefore, the Insurance Company is liable to reimburse the owner in respect of at least one driver. There is a finding of the Motor Accident Claims Tribunal as observed earlier that the deceased was travelling in the truck as a driver though, he was not actually driving the truck. The learned Judge of the Motor Accident Claims Tribunal rejects the claim against the Insurance Company because the deceased was not a person sitting on the steering wheel and actually driving the vehicle. He holds that it is that person alone, who could be said to be covered by the Insurance Policy. The reasons as given by the learned Judge cannot be accepted because such interpretation does not appear to me to be reasonable. The provisions of the Motor ::: Downloaded on - 09/06/2013 15:31:23 ::: 7 Vehicle Act in the form of Sections 140 to 168 are in the form of beneficial legislature.
Therefore, liberal interpretation and an interpretation which would further ends of the such legislation has to be given. To my mind there could be as many drivers on truck as the owner may decide to have but only that number of drivers would stand covered for whom the premium is paid.
ig If the premium is paid for one driver alone, one person or one driver would be covered irrespective of the fact that two drivers may have died in the accident. In the instant case, there were two drivers engaged and premium for only one driver has been paid. The claim is only in respect of only one driver. Therefore, to my mind the Insurance Company cannot escape the liability.
Had both the drivers died then the Insurance Company could have contended that it is not liable to reimburse in respect of both the drivers but in respect of one alone. Since in this case, one out of the two drivers engaged ::: Downloaded on - 09/06/2013 15:31:23 ::: 8 died and claim is laid for only one, the Insurance Company certainly is liable to reimburse. I find substance in the submission of the learned counsel for the appellant. I, therefore, allow the appeal and direct opponent No.2 the Insurance Company to re-
imburse opponent No.1 i.e.to pay the compensation as directed by the Motor Accident Claims Tribunal to the claimants. No order as to costs.
(C.L.PANGARKAR, J.) ::: Downloaded on - 09/06/2013 15:31:23 :::