Bombay High Court
Iffco Tokio General Insurance Co. Ltd., ... vs Tulsidas S/O Gangaji Nikode And 3 Others on 13 January, 2016
Author: R.K. Deshpande
Bench: R.K. Deshpande
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fa1389.13.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
First Appeal No.1389 of 2013
Iffco Tokio General Insurance Co. Ltd.,
Through its Authorised Signatories,
8th Floor, Shriramshyam Tower,
Near NIT Complex, Sadar,
Tah. and District Nagpur. ... Appellant
Versus
1. Tulsidas s/o Gangaji Nikode,
Aged about 43 years,
Occ.: Nil.
2. Smt. Shewanta w/o Tulsidas Nikode,
Aged about 41 years,
Occ.: Household.
Both R/o Kardul, Post : Ghot,
Tah.: Chamorshi, Distt.: Gadchiroli.
3. Dilip s/o Natthuji Salve,
Aged Major,
Occ.: Owner of Tractor,
R/o Ghot, Tah.: Chamorshi,
Distt.: Gadchiroli.
4. Nilesh s/o Charandas Gaoture,
Aged about 26 years,
Occ.: Driver,
R/o Kardul, Tah.: Chamorshi,
Distt.: Gadchiroli. ... Respondents
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fa1389.13.odt
Shri A.J. Pophaly, Advocate for Appellant.
Smt. T.D. Khade, Advocate for Respondent Nos.1 and 2.
Coram : R.K. Deshpande, J.
Dated : 13 January, 2016
th
Oral Judgment :
1. In Motor Accident Claim Petition No.44 of 2011, the owner and driver of the offending vehicle along with the appellant-Insurance Company are held jointly and severally liable to pay the compensation of Rs.3,88,500/- along with interest at the rate of 7% per annum from the date of filing of the claim petition till its realization. This order of the Motor Accident Claims Tribunal passed on 31-7-2013 is the subject-matter of challenge in this appeal preferred by the Insurance Company.
2. The defence of the appellant-Insurance Company was that the deceased Agnipath, who was the son of the respondent Nos.1 and 2/claimants, was sitting in the Trolley, which was not insured, and the risk of the deceased was not covered by the policy produced on record at Exhibit 33. The Tribunal has held that it is not necessary to have a separate insurance in respect of the Trolley, which was ::: Uploaded on - 15/01/2016 ::: Downloaded on - 31/07/2016 00:54:54 ::: 3 fa1389.13.odt attached to the Tractor, and the risk of the deceased was covered by the policy at Exhibit 33.
3. The points for determination are as follows :
Sr.No. Points Findings
1. Whether the risk of the deceased, In the negative.
who was the occupant in the Trolley attached to the Tractor, was covered by the cover note at Exhibit 33 in respect of the vehicle in question, which is Tractor bearing No.MH-33/F-
1972?
2. Whether Trolley bearing In the negative.
No.MH-32/TC-82 was required to be separately insured?
4. Even if the finding of the Tribunal is accepted that the Trolley attached to the Tractor was not required to be separately insured, the question is whether the risk of the deceased in question is covered by the cover note at Exhibit 33. Undisputedly, the deceased was the occupant in the Trolley driven by the Tractor. The respondent No.4-Nilesh s/o Charandas Gaoture was driving the Tractor in question, and the policy at Exhibit 33 shows that it covers the risk of ::: Uploaded on - 15/01/2016 ::: Downloaded on - 31/07/2016 00:54:54 ::: 4 fa1389.13.odt one passenger. The respondent Nos.1 and 2/claimants have produced on record the certificate of registration of vehicle in question, marked as Exhibit 32, indicating the sitting capacity (including driver) as "1".
The cover note does not cover the risk of more than one occupant in the vehicle. In such a situation, it cannot be said that the risk of the deceased was covered by the policy of insurance at Exhibit 33. The Tribunal has, therefore, committed an error in holding the Insurance Company liable to make the payment of compensation. The owner and driver of the vehicle in question have not preferred any appeal and hence the order passed against them cannot be touched.
5. In the result, the appeal is allowed. The judgment and order dated 31-7-2013 passed in Motor Accident Claim Petition No.44 of 2011 to the extent it operates against the appellant-Insurance Company, is hereby quashed and set aside. If the appellant-Insurance Company has deposited any amount in this Court, the same shall be permitted to be withdrawn with interest, if any accrued thereon. No order as to costs.
6. At this stage, Smt. Khade, the learned counsel for the respondent Nos.1 and 2/claimants, seeks stay to the effect and ::: Uploaded on - 15/01/2016 ::: Downloaded on - 31/07/2016 00:54:54 ::: 5 fa1389.13.odt operation of this judgment and order for a period of four weeks from today.
This Court grants six weeks' time, and during this period, the judgment and order passed by this Court shall remain suspended, and after expiry of it, the judgment and order shall continue to operate.
JUDGE.
Lanjewar ::: Uploaded on - 15/01/2016 ::: Downloaded on - 31/07/2016 00:54:54 :::