Bombay High Court
Divisional Manager, United India ... vs Kantabai Wd/O Manohar Sonone And Ors. on 12 July, 2004
Equivalent citations: II(2005)ACC473, 2005ACJ628, 2005(1)BOMCR317, 2004(4)MHLJ811
Author: Anoop V. Mohta
Bench: Anoop V. Mohta
JUDGMENT Anoop V. Mohta, J.
1. This appeal is by appellant - United India Insurance Company (original Non-applicant No. 3) (for short 'Insurance Company'), thereby challenging the award dated 13-10-1988 passed by the learned Motor Accident Claims Tribunal, Akola in Motor Vehicle Case No. 9/1983, thereby the appellant along with the driver and owner (original non-applicant No. 1 and 3), are directed jointly and severally to pay compensation of Rs. 50,000/- along with interest @ 12% p.a. from the date of accident i.e. 8-8-1982, till realization of the amount. There is no appeal by the owner or driver of the vehicle. The present appeal is only by the appellant insurance company, therefore there is no much dispute as regards merits of the matter. Except the statutory liability of the insurance company to the extent of then existing provisions of the Motor Vehicles Act, 1939 (for short 'M. V. Act'), and based on the existing insurance policy executed between the respective parties.
2. The facts which are set out in the matter can be summarised as under:
On 8-8-1982 along with other hundred persons one Mr. Manohar Sonone, the husband of the original petitioner No. 1 and the father of the original petitioner No. 2, respondents No. 1 and 2 herein, boarded the truck bearing No. MTV 2091, owned by the original non-applicant No. I/respondent No. 3 herein and driven by the original non-applicant No. 2/respondent No. 4 herein, and for that made payment of Re. 1/- each for their journey upto Akot from Popatkheda. There were heavy rains, and because of the rash and negligent driving by the respondent No. 4, driver, the said truck turned turtled at a distance of about 4 furlong from Popatkheda. The deceased Manohar along with 5 persons died on the spot and many other were injured. The said truck was admittedly insured with the insurance company. The policy nowhere deals with or take care of such passengers boarded the truck in question. Admittedly, such policy no where take care of injury, permanent or of any kind or death of such passenger. There is no dispute about this aspect of policy.
3. The learned Advocate Mr. Kalar, appearing for. the appellant insurance company, basically contended that the learned Member ought not to have awarded such compensation, at least against the appellant insurance company, as they were not liable to make payment based on insurance policy in question, as admittedly, those passengers including the deceased, and/or such other passengers were not covered or govern by such policy. The insurance company therefore, are not liable to make payment as awarded by the claims tribunal. There was no such additional contract or premium paid for covering the risk of such passengers. Therefore, the award of such compensation against the appellant insurance company was illegal and contrary to the provisions of law, as well as the policy between the concerned parties. He referred to and relied on 2004(2) SRJ 187, National Insurance Company Ltd. vs. Ajit Kumar and Ors., 2003(1) SRJ 569, New India Assurance Co. vs. Asha Rani and Ors., , New India Assurance Co. vs. Satpal Singh, , Oriental Insurance Co. vs. Devireddy Konda Reddy and Ors., in support of his contention. The relevant paras of National Insurance Company Ltd. vs. Ajit Kumar and Ors. (supra) are as under :
"11. The inevitable conclusion therefore, is that provisions of the Act do not enjoin any statutory liability on the owner of the vehicle to get his vehicle insurance for any passenger travelling in a goods carriage and the insurer would have no liability therefor.
12. Our view gets support from the decision of a three Judge bench in New India Assurance Co. vs. Asha Rani and Ors., 2003(2) SCC 223, and Oriental Insurance Co. vs. Devireddy Konda Reddy and Ors., ."
4. The learned Judge has relied on , Guru Govekar vs. Filomena F. Lobo and Ors., and awarded compensation against the appellant also. The facts of that case are totally inapplicable. However, in view of the recent judgment of the Apex Court as referred to above, the finding recorded in para no. 17 and 18 cannot be sustained.
5. The learned Advocate appearing for the respondents/original claimants fairly conceded the issue in view of the above settled principle of law. Therefore, without going into further merits of the matter, and as the law is settled in view of the judgments referred above I am of the view that the insurance company cannot be directed to make payment of compensation as awarded. However, so far as the original driver and owner are concerned, they are liable to make the payment as ordered. Therefore, the impugned order is maintained against those respondents No. 3 and 4.
6. The fact that accident took place on 8-8-1982, and compensation was awarded on 13-10-1988, and as the amount is still lying with the Motor Accident Claims Tribunal, Akola, as per the order dated 20-3-1989, the appellant insurance company has deposited the amount I see there is no reason not to compel the original claimants/respondent Nos. 1 and 2 herein, to start recovery proceedings against the original owner or the driver, as the award was against them also. However, liberty is granted to appellant to take appropriate steps for recovery proceedings, if advised against the respondent Nos. 3 and 4 herein, i.e. the owner and driver. The appellant may taken into consideration sympathically whether to initiate or not the recovery proceedings against such owner and driver, after lapse of such period. The amount of Rs. 15,000/- which was already paid to the original claimants under section 92-A of the M. V. Act should be adjusted.-
7. The appellant, therefore if so advised may recover the balance amount of Rs. 35,000/- from the original owner and driver of the vehicle. Interim order dated 20-3-1982 stands vacated, with these directions that the respondents/original claimants be/permitted to withdraw the said amount.
8. In view of the above observations the appeal is partly allowed. No order as to costs.