Bombay High Court
United Indira Insurance Co. Ltd., ... vs Smt. Koushyalya Haridas Chang on 13 March, 2018
Author: Z.A.Haq
Bench: Z.A.Haq
Judgment 1 fa829.2011.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
FIRST APPEAL (FA) NO. 829/2011
United India Insurance Co. Ltd.
Gadchiroli Branch, Through the
Regional Manager, Nagpur
Regional Office, Shankar Nagar Square,
Nagpur
.... APPELLANT.
// VERSUS //
1] Smt. Koushyalya Wd/o Haridas Chang
Aged about 36 years, Occ:- Household
2] Ku. Rekha D/o Haridas Chang
Aged about 19 years, Occ:- Education
3] Ku. Chandrakala D/o Haridas Chang
Aged about 16 years, Occ:- Education
4] Pramod S/o Haridas Chang
Aged about 12 years, Occ:- Education
5] Smt. Yashodabai Wd/o Sakharam Chang
Aged about 65 years, Occ:- Nil,
(Respondents no. 3 & 4 are minor through
their mother and natural guardian i.e.
Respondent no. 1 herein)
All R/o Mohali, Tah. Dhanora,
Dist. Gadchiroli
6] Anil Madhukar Dhait
Aged not known, Occ:- Owner,
R/o Nifandra, Tah. Saoli,
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Judgment 2 fa829.2011.odt
Dist. Chandrapur
7] Sanjay S/o Nilkanth Gedam,
Aged not known, Occ:- Owner,
R/o Gangalwadi, Tah. Mul,
Dist. Chandrapur
.... RESPONDENTS
.
=====================================
Shri D.P. Shouche, Advocate for the appellant
Shri P. P. Pendke, Advocate for the respondent nos. 1 to 5
=====================================
CORAM : Z.A.HAQ, J.
DATED : MARCH 13, 2018
ORAL JUDGMENT : -
As per the order of this Court dated 02/02/2018, this appeal is listed for final disposal.
Heard.
2] The appellant-Insurance company has challenged the award passed by the Tribunal upholding the claim of the respondent nos. 1 to 5 (claimants) for grant of compensation on account of death of Haridas Sakharam Chang (husband of the respondent no. 1, father of the respondent no. 2 and son of the respondent no. 5) in an accident ::: Uploaded on - 04/04/2018 ::: Downloaded on - 21/05/2018 10:18:43 ::: Judgment 3 fa829.2011.odt caused because of rash and negligent driving of the vehicle owned by the respondent no. 6. According to the appellant-Insurance Company, deceased-Haridas was a gratuitous passenger and would not fall in the category of "third party" and therefore the claim made by the claimants against the Insurance Company is not maintainable. The learned advocate for the appellant-Insurance Company submitted that the insurance policy [Exh. 22(6)] shows that the insurer had not paid the premium to cover the liability in respect of the passenger travelling in the vehicle.
The learned advocate for the respondent nos. 1 to 5 has supported the impugned award.
3] After hearing the learned advocates for the respective parties, I find that the following point arises for consideration:-
"Whether the Tribunal has committed any error by holding that the appellant-Insurance Company, alongwith the owner of the vehicle is jointly and severally liable to pay the amount of compensation." ::: Uploaded on - 04/04/2018 ::: Downloaded on - 21/05/2018 10:18:43 :::
Judgment 4 fa829.2011.odt 4] Shri P.P. Pendke, learned advocate for the respondent
nos. 1 to 5 (claimants) has pointed out that the appellant- Insurance Company had not filed written statement before the Tribunal. Consequently, the defence which is now sought to be raised by the appellant-Insurance Company was not raised before the Tribunal. For want of pleadings and evidence, there was no occasion for the Tribunal to consider the point which is now raised by the appellant-Insurance Company. 5] The learned advocate for the appellant-Insurance Company has submitted whether the Insurance Company can be made liable to pay the compensation to the legal representatives of the gratuitous passenger, is a question of law and can be raised in appeal. In my view, this submission cannot be accepted. What is the nature of the policy and what is the extent of the liability of the Insurance Company depends on the terms of the insurance policy and unless proper defence is raised before the Tribunal by way of pleadings and leading evidence, it is not possible for the Tribunal to examine the point. As the appellant-Insurance Company failed to raise defence before the Tribunal, it cannot be said that the Tribunal has committed an error by holding that the ::: Uploaded on - 04/04/2018 ::: Downloaded on - 21/05/2018 10:18:43 ::: Judgment 5 fa829.2011.odt appellant-Insurance Company is liable to pay the amount of compensation jointly and severally alongwith the owner of the vehicle.
6] It is relevant to state that the vehicle in which deceased-Haridas was travelling was Maruti Omni Car and admittedly it was insured with the appellant-Insurance Company. In the facts of the case, I see no reason to interfere with the impugned award as it is based on proper appreciation of material on record.
7] In view of the above, the following order is passed:-
O R D E R
a) The appeal is dismissed with costs quantified at Rs. 10,000/- (Rs. Ten Thousand) to be paid by the appellant-Insurance Company to the respondent nos. 1 to 5 (claimants) within two months.
The appellant-Insurance Company shall ::: Uploaded on - 04/04/2018 ::: Downloaded on - 21/05/2018 10:18:43 ::: Judgment 6 fa829.2011.odt produce the receipt showing payment of costs on record of this appeal within two months.
b) The amount deposited by the appellant- Insurance Company with the Registry of this Court, alongwith interest on it, if any, be given to the claimants as per the directions given by the Tribunal in the impugned award.
JUDGE Ansari ::: Uploaded on - 04/04/2018 ::: Downloaded on - 21/05/2018 10:18:43 :::