Bombay High Court
Unites India Insurance Company Ltd vs Shobha Balkrishna Gaikwad & Others on 4 July, 2011
Author: A.S. Oka
Bench: A.S. Oka
ash 1 fa-1046.96
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELATE JURISDICTION
FIRST APPEAL NO.1046 OF 1996
Unites India Insurance Company Ltd. .. Appellant
Vs
Shobha Balkrishna Gaikwad & Others. .. Respondents
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Shri S.R. Singh for the Appellant.
Shri L.S. Gaikwad for Respondent Nos.1 to 4.
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ig CORAM ; A.S. OKA, J
DATED : 14TH JULY, 2011
ORAL JUDGMENT :
. Heard learned counsel appearing for the Appellant and the learned counsel appearing for Respondent Nos. 1 to 4. The 1st to 4th Respondents filed a claim petition under Section 110A of the Motor Vehicles Act, 1939. By the impugned judgment and award, the claim petition has been partly allowed by granting compensation of Rs.
2,52,000/- ( including no fault liability ) with interest. The Appellant is original Opponent No.2. The Appellant is the insurer of a tempo which is one of the two offending vehicles.
2. The compensation is claimed on account of death of one Balkrishna in a motor accident on 15th April, 1988. On the fateful day, the deceased was waiting at Swargate, Pune with his luggage. The ::: Downloaded on - 09/06/2013 17:26:17 ::: ash 2 fa-1046.96 driver of a tempo showed willingness to take his articles in the tempo.
Accordingly, he loaded the articles in the tempo and started journey in the said tempo. While the tempo was proceeding, a truck came from the opposite direction. There was a collision between the tempo and the truck. As a result of the injuries sustained in the accident, the deceased died. A claim petition was filed against the owner and insurer of the tempo as well as the owner and insured of the truck.
The 4th Opponent in the claim petition (7th Respondent herein ) is the insurer of the truck. The Tribunal found that the drivers of both the vehicles were rash and negligent and, therefore, both of them were responsible for the accident. The Tribunal apportioned the liability between the owner of the tempo and the owner of the truck equally.
The Appellant is the insurer of the tempo. One of the defences raised by the Appellant was that the deceased was travellling in the tempo which was a goods vehicle in breach of the terms and conditions of the policy and in any event the policy was not required to cover the liability of such passengers.
3. The Tribunal relied upon a decision of the Division Bench of this Court in the case of Nasibdar Suba Fakir Vs. M/s. Adhia and Company and another, (1983 ACJ 264). Relying upon the said decision, the Tribunal held that the liability of the owner of the goods travelling by the goods vehicle along with the goods was required to be ::: Downloaded on - 09/06/2013 17:26:17 ::: ash 3 fa-1046.96 covered by the policy and, therefore, the Appellant was liable to pay compensation.
4. The learned counsel appearing for the Appellant has placed reliance on a decision of the Apex Court in the case of Mallawwa (Smt.) & Others Vs. Oriental Insurance Company Limited & Others, [1999(2) Bom.C.R. 515]. He submitted that in view of the law laid down by the Apex Court, the Appellant insurer was not liable to pay compensation.
The learned counsel appearing for the Original claimants has relied upon a decision of the Division Bench of this Court in the case of Oriental Insurance Company Limited Vs. Gangavarapur Padmawati wd/o Ramanna Reddy & Others, [1999(2) Mh.LJ 167) and submitted that no interference is called for.
5. I have carefully considered the submissions. The case will be governed by the Motor Vehicles Act, 1939. It is an admitted position that the tempo was a goods vehicle. It is also an admitted position that the deceased was travelling by the tempo alongwith his articles.
Therefore, the only issue is whether the Appellant insurer is liable to satisfy the award passed against the owner of the tempo. In this behalf, a reference will have to be made to the case of Mallawwa (supra). A larger bench of the Apex Court decided a reference made to it. In Paragraph 1 of the judgment, the Apex Court reproduced the order of ::: Downloaded on - 09/06/2013 17:26:17 ::: ash 4 fa-1046.96 Division Bench making a reference to a Larger Bench of three Hon'ble Judges. The said order reads thus:-
"What we are concerned with in these mattes is the correct interpretation of section 95 of the Motor Vehicles Act, 1939. The question arises, specifically, in the context of the death of the owner of goods being carried in a goods vehicle is liable to pay the compensation awarded to his legal heirs. We note that there are divergent views expressed by the High Courts. Apart from that, in our view, a decision of a Bench of two learned Judges in (Pushpabai Purshottam Udeshi v. Ranjit Ginning & Pressing Co.
(P) Ltd.), A.I.R. 1977 S.C. 1735 : 1977(2) S.C.C. 745 needs to be reconsidered in greater detail. In these circumstances, it is appropriate that these matters should be heard and disposed of by a Bench of three learned Judges."
(Underline supplied )
6. The Apex Court considered the provisions of Section 95 of the said Act. After considering the provisions of Section 95 of the said Act, the Apex Court in Paragraph 10 observed thus:-
"10. For the purposes of section 95, ordinarily a vehicle could have been regarded as a vehicle in which passengers were carried if the vehicle was of that class. Keeping in mind the classification of vehicles by the Act, the requirement of registration with particulars including the class to which it belonged, requirement of obtaining a permit for using the vehicle for different purposes and compulsory coverage of insurance risk, it would not be proper to consider a goods vehicle as a passenger vehicle on the basis of a single use or use on some stray occasions as a vehicle for carrying passengers for hire or reward. For the purpose of construing a provision like proviso ::: Downloaded on - 09/06/2013 17:26:17 ::: ash 5 fa-1046.96
(ii) to section 95(1)(b), the correct test to determine whether a passenger was carried for hire or reward, would be whether there has been a systematic carrying of passengers. Only if the vehicle is so used then that vehicle can be said to be a vehicle in which passengers are carried for hire or reward. The High Courts have expressed divergent views on the question whether a passenger can be said to have been carried for hire or reward when he travels in a goods vehicle either on payment of fare or along with his goods......"
( Underline supplied )
7. Thereafter, the Apex Court proceeded to consider the law laid down by a Full Bench of Orissa High Court in the case of New India Assurance Co. Ltd. v. Kanchan Bewa, [1994 ACJ 138 (Ori.)]. The Paragraphs 22 and 23 of the judgment of Orissa High Court quoted by the Apex Court read thus:-
"22. Thus, to find out whether an insurer would be liable to indemnify an owner of a goods vehicle in a case of the present nature, the mere fact that the passenger was carried for hire or reward would not be enough; it shall have to be found out as to whether he was the owner of the goods, or an employee of such an owner, and then whether there were more than six persons in all in the goods vehicle and whether the goods vehicle was being habitually used to carry passengers. The position would thus become very uncertain and would vary from case to case. Production of such result would not be conducive to the advancement of the object sought to be achieved by requiring a compulsory insurance policy.
23. There is another aspect of the matter which had led us to differ from the Full Bench decision of ::: Downloaded on - 09/06/2013 17:26:17 ::: ash 6 fa-1046.96 the Rajasthan High Court. The same is what finds place in sub-section (2) of section 95. That sub-section specifies the limits of liability and clause (a) deals with goods vehicle; and insofar as the person travelling in goods vehicle is concerned, it has confined the liability to the employees only. This is an indicator, and almost a sure indicator, of the fact that the legislature did not have in mind carrying of either the hirer of the vehicle or his employee in the goods vehicle, otherwise, Clause (a), would have provided a limit of liability regarding such persons also."
(Underline supplied)
8. In Paragraph 11, the Apex Court expressly approved the view taken by the Orissa High Court by observing that:-
"though the conclusion was arrived at after taking into consideration the Orissa Motor Vehicles Rules, in our opinion the said view is correct, even otherwise also. In view of what we have said, the contrary view expressed by other High Courts has to be regarded as incorrect."
(underline supplied )
9. Hence, the Appellant was under no obligation under Section 95 of the said Act of 1939 to cover liability of the person accompanying goods travelling by a goods vehicle. Thus, in view of the said decision of the Apex Court, the Appellant will not be liable as there is no evidence to show that there was any extra premium paid to cover the liability of persons accompanying goods. In view of the binding precedent of the Apex Court, the decisions of this Court in the case of ::: Downloaded on - 09/06/2013 17:26:17 ::: ash 7 fa-1046.96 Nasibdar Suba Fakir v. M/s. Adhia and Company and others ( 1983 ACJ 264 ) and Oriental Insurance Company Ltd. v. Gangavarapur Padmawati, [1995(1) Mh.LJ 167] cannot be read as precedents on the question involved in this Appeal. What binds this Court is the decision of this Court in the case of Mallawwa (supra). Hence, it will have to be held that the Appellant was not liable to honour the award passed against the original Opponent No.1 (insured). As per the impugned award, the liability of the Appellant and the original Opponent No.1 ( Respondent No.5 herein) was confined to 50% of the compensation and rest of the amount is made payable by the insured and the insurer of the truck.
10. Hence, I pass the following order:-
(a) The impugned judgment and award is modified.
(b) The Claim Petition stands dismissed as against the Appellant.
(c) The rest of the impugned judgment and award is confirmed.
(d) The Appeal is partly allowed on above terms.::: Downloaded on - 09/06/2013 17:26:17 :::
ash 8 fa-1046.96
(e) There will be no orders as to costs.
(f) If the sum of Rs.25,000/- deposited by the Appellant is pending in this Court, the same shall be refunded to the Appellant along with interest accrued, if any, ig ( A.S. OKA, J ) ::: Downloaded on - 09/06/2013 17:26:17 :::