Bombay High Court
The Oriental Insurance Co. Ltd ... vs Sau. Rekha Ramesh Rahile And Another on 18 January, 2016
Author: R.K. Deshpande
Bench: R.K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
First Appeal No.1153 of 2013,
First Appeal No.1162 of 2013,
First Appeal No.1168 of 2013,
First Appeal No.129 of 2014
And
First Appeal No.361 of 2014
First Appeal No.1153 of 2013
The Oriental Insurance Company Ltd.,
Veer Wamanrao Chowk,
Dist. Yavatmal,
Represented by Manager,
Oriental Insurance Company,
T.P. Hub, Nagpur. ... Appellant
Versus
1. Sau. Rekha Ramesh Rahile,
Aged 35 years,
Occupation - Service (Teacher),
R/o Navin Belora, Po Belora,
Tq. & Distt. Chandrapur.
2. Devanad Shankar Uike,
Aged Major,
Occupation - Business,
R/o Amrapali Ward No.1,
Ghuggus,
Tq. & Dist. Chandrapur. ... Respondents
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First Appeal No.1162 of 2013
The Oriental Insurance Company Ltd.,
Veer Wamanrao Chowk,
Dist. Yavatmal,
Represented by Manager,
Oriental Insurance Company,
T.P. Hub, Nagpur. ... Appellant
Versus
1. Satish Ramchandra Jadhav,
Aged 22 years,
Occupation - Cleaner,
R/o Mohari, Tq. Mangrul(pir),
Dist. Washim.
2. Devanad Shankar Uike,
Aged Major,
Occupation - Business,
R/o Amrapali Ward No.1,
Ghuggus,
Tq. & Dist. Chandrapur. ... Respondents
First Appeal No.1168 of 2013
The Oriental Insurance Company Ltd.,
Veer Wamanrao Chowk,
Dist. Yavatmal,
Represented by Manager,
Oriental Insurance Company,
T.P. Hub, Nagpur. ... Appellant
Versus
1. Shakuntalabai @ Kantabai Sambhaji
Sontakke,
Aged 46 years,
Occupation - Yavatmal.
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2. Devanad Shankar Uike,
Aged Major,
Occupation - Business,
R/o Amrapali Ward No.1,
Ghuggus,
Tq. & Dist. Chandrapur. ... Respondents
First Appeal No.129 of 2014
The Oriental Insurance Company Ltd.,
Veer Wamanrao Chowk,
Dist. Yavatmal,
Represented by Manager,
Oriental Insurance Company,
T.P. Hub, Nagpur. ... Appellant
Versus
1. Sau. Kantabai w/o Krishna Sontakke,
Aged 35 years,
Occupation - Service - Tailoring,
R/o P.O. Navin Belora, Tq. Wani,
Distt. Yavatmal.
2. Devanad Shankar Uike,
Aged Major,
Occupation - Business,
R/o Amrapali Ward No.1,
Ghuggus,
Tq. & Dist. Chandrapur. ... Respondents
First Appeal No.361 of 2014
The Oriental Insurance Company Ltd.,
Veer Wamanrao Chowk,
Dist. Yavatmal,
Represented by Manager,
Oriental Insurance Company,
T.P. Hub, Nagpur. ... Appellant
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Versus
1. Uttam Lalaji Rathod,
Aged 31 years,
Occupation - Cloth Merchant,
R/o Shirpur, Tq. Wani,
Distt. Yavatmal.
2. Devanad Shankar Uike,
Aged Major,
Occupation - Business,
R/o Amrapali Ward No.1,
Ghuggus,
Tq. & Dist. Chandrapur.
ig ... Respondents
Ms Mrunal Naik, Advocate for Appellant.
None for Respondents.
Coram : R.K. Deshpande, J.
Dated : 18 January, 2016
th
Oral Judgment :
1. Admit. Heard finally by consent of the learned counsel
appearing for the appellant. None for the respondents.
2. In Motor Accident Claim Petitions No.169 of 2005, 197 of 2005, 227 of 2005, 33 of 2006 and 256 of 2007 filed under Section 166 of the Motor Vehicles Act, 1988 and decided by the common judgment and order dated 7-3-2012, the appellant-Insurance ::: Uploaded on - 30/01/2016 ::: Downloaded on - 31/07/2016 01:30:24 ::: 5 fa1153.13+.odt Company is held liable to make the payment of compensation for the injuries suffered by the claimants as a result of the accident in question which occurred on 15-9-2003 involving the vehicle in question, i.e. Tata Sumo, bearing registration No.MH-28A/8881, travelling from Wani to Belora. It was the defence raised by the Insurance Company that the policy in question, which is at Exhibit 67, did not cover the risk of the occupants in the said vehicle, as it indicates payment of charges of Rs.700/- towards "any extra loading".
Therefore, the point for determination is as under :
Point Finding Whether the liability of the occupants in In the negative. vehicle Tata Sumo No.MH-28A/8881 was covered by payment of Rs.700/- towards "any extra loading", as shown in the policy at Exhibit 67?
3. The occupants in the vehicle have claimed the compensation for the injuries suffered by them as a result of an accident in question.
I have gone through the policy at Exhibit 67. Basically, it is a third party policy and to cover the risk of personal accident for which premium of Rs.100/- is paid. Under the caption "any extra loading", ::: Uploaded on - 30/01/2016 ::: Downloaded on - 31/07/2016 01:30:24 ::: 6 fa1153.13+.odt an amount of Rs.700/- has been paid. The Insurance Company has examined its Administrative Officer, and in his examination-in-chief, he has stated as under :
"... The certified copy of the insurance policy is at Ex.67, the terms and conditions of the policy is at Ex.67-A and the copy of the extract of Indian Motor Tariff is at Ex.67-B. The offending vehicle is insured as a private car. The words liability only policy mentioned in policy is Act Policy and it is commonly known as Third Party Policy. Under basic liability premium of Rs.700/- third party risk is covered. Under Personal Accident (P.A.) premium of Rs.100/- the liability of the owner cum driver is covered to the extent of Rs.2,00,000/-. Premium of Rs.25/- as legal liability of driver is obtained. Rs.700/- is obtained as any extra loading which is Surcharge on 100% basic liability premium. Such extra loading charges are obtained as Surcharge to recover the loss. In this policy the liability of any other person except third party, owner-cum- driver and driver is not covered. Since the risk of passenger is not covered by the insurance policy, the petitions are liable to be dismissed."
In the cross-examination, the witness deposes as under :
"... It is true that the explanation of the premium mentioned in the policy is given at its bottom. It is true that the explanation as regards the premium of Rs.700/- as extra loading is not mentioned at the bottom of policy. I cannot assign any reason as to why words Surcharge is not mentioned against the Extra Loading Premium. It is true that the vehicle was not Goods Vehicle. It is not true that extra loading means the persons travelling in the vehicle in excess of its seating capacity. It is not true that in this policy the risk of occupants travelling in ::: Uploaded on - 30/01/2016 ::: Downloaded on - 31/07/2016 01:30:24 ::: 7 fa1153.13+.odt the vehicle is also covered. Premium of Rs.76/- mentioned in the policy is towards service tax. It is true that against premium of Rs.76/- no head for which it is recovered is mentioned. It is true that seating capacity of Tata Sumo vehicle is 8+1. It is not true that in this policy the premium of Rs.700/- is obtained for the risk of 7 persons in addition to the driver and owner cum driver. It is not true that I am deposing false in order to avoid the liability of insurance company."
The stand taken by the Insurance Company is very clear that the policy does not cover the liability except third party, owner-cum-driver and driver. It is clear from the evidence of this witness that the policy does not cover the risk of the occupants/passengers in the vehicle, which is not a goods vehicle, but a private vehicle. The witness has stated in his cross-examination that it is not true that in this policy the premium of Rs.700/- is obtained for the risk of seven persons in addition to the driver and owner-cum-driver. It is, therefore, apparent that the "extra loading" is for the bad condition of the vehicle and it is in the nature of surcharge over the basic liability premium of the third party. In view of this, the Tribunal has committed an error in holding that the policy covered the risk of the occupants/passengers in the vehicle and, therefore, the Insurance Company was liable to pay the compensation.
4. In the result, the appeals are allowed. The common ::: Uploaded on - 30/01/2016 ::: Downloaded on - 31/07/2016 01:30:24 ::: 8 fa1153.13+.odt judgment and order dated 7-3-2012 passed by the Motor Accident Claims Tribunal at Yavatmal in Motor Accident Claim Petitions No.169 of 2005, 197 of 2005, 227 of 2005, 33 of 2006 and 256 of 2007, to the extent it holds the appellant-Insurance Company liable to make the payment, is hereby quashed and set aside. Rest of the order does not call for any interference. The amount deposited by the appellant-Insurance Company is permitted to be withdrawn by the Insurance Company along with interest, if any accrued thereon. No order as to costs.
JUDGE.
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