Back
2012 Supreme(Bom) 483
2012 (3) ALL MR 181
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (PANAJI BENCH)
U. V. BAKRE, J.
National Insurance Co. Ltd.
Vs.
Smt. Ashwini Balu Gaude & Ors.
First Appeal No. 10 of 2007.
Decided On : 2nd March, 2012.
Shri E. AFONSO, Advocate for the Appellant.
Shri S. D. PADIYAR, Adv. for Respondent No.1.
Shri. M. AMONKAR, Adv. for Respondent No.4.
Headnote:MOTOR VEHICLES ACT, 1988 - Section 147 - Liability of insurer - Where deceased, died in a vehicular accident, was not proved to be a gratuitous passenger in vehicle therefore compensation awarded by Tribunal liable to be paid by insurer to claimants. Claims Tribunal has rightly answered the additional issue in the negative. The deceased is not proved to be a gratuitous passenger. He is duly proved to be a person who was engaged to take care of the goods/marriage presents which were being carried by the said Pickup. No interference is called for with the impugned judgment and order which is passed on correct appreciation of the evidence on record.
MOTOR VEHICLES ACT, 1988 - Section 173(1) - Appeal - Against judgment and award dated 21.4.2006 of Tribunal (MACT), allowing claim petition for compensation partly - Deceased, a labourer’ sustaining grievous injuries in an accident, died due to rash and negligent driving of offending vehicle - Breach of policy - Claimant : wife and children - Tribunal awarded compensation of Rs. 3,45,000/- with interest @ 7.5% p.a. payable by respondents jointly and severally under Section 140 of Act - Insurer-respondent-3 challenging award - Liability of insurer - Denied - Contention that since deceased, a gratuitous passenger hence Insurer not liable to indemnify owner and driver of offending vehicle.
Held - Insurer failed to establish that deceased was a gratuitous passenger - Deceased travelling as a contractor of goods carried in Pick-up/offending vehicle - Impugned judgment and award warrants no interference - Appeal dismissed.
It is seen that it has been pleaded in the claim petition that the deceased was sitting at back side of the Pickup to supervise the marriage presents and other materials which were placed at the back side of the Pickup. "Goods" as defined under Section 2(13) of the M.V. Act includes live-stock, and anything (other than, equipment ordinarily used with the vehicle) carried by a vehicle except living persons, but does not include luggage or personal effect carried in a motor car or in a trailer attached to a motor car or the personal luggage of passengers travelling in the vehicle.
It is true that AW 1 who is wife of the deceased was not travelling in the said vehicle. However, her statement that the deceased was in the tempo to take care of the gift articles has been duly corroborated by independent witness who was travelling in the said Pickup and AW 3, Raghunath Gawas has stated in his affidavit as well as in his cross- examination conducted by the Advocate for respondents No. 1 and 2, that the deceased Balu was employed to carry the gift articles. It is pertinent to note that in the cross- examination of AW3, done by Advocate for the respondent No. 3, though, a suggestion has been put that he has incorrectly stated that Balu was kept to guard the articles in the said Pickup, however, no suggestion has been put that there were no such articles carried in the said Pickup. It is based on the evidence of AW 3 that the Claims Tribunal has held that Balu was engaged to take care of gift articles from Valpoi to Doda Marg in the said Pickup.
However, the principle laid down about the breach of contract of insurance applies to this case also and it has been held that the burden to prove that there is breach of contract of insurance is squarely on the shoulders of the Insurance Company.
Claims Tribunal has rightly answered the additional issue in the negative. The deceased is not proved to be a gratuitous passenger. He is duly proved to be a person who was engaged to take care of the goods/marriage presents which were being carried by the said Pickup. No interference is called for with the impugned judgment and order which is passed on correct appreciation of the evidence on record.
2. The parties shall be referred to in the same manner as they appear in the said Claim Petition.
3. The case of the claimants was that the husband of the claimant no. 1 and father of the claimants no. 2 and 3, since deceased, namely Balu Gaude, was working as labourer and on 26/5/2004 he was carrying the goods in the Pickup, bearing registration no. GA-01-U-0562, hired for the said purpose, after the marriage at Valpoi and the Pickup was proceeding to Va1poi and on reaching Rajmyachi Kond at Velgem at 14.15 hours, an accident occurred due to rash and negligent driving of the said Pickup by respondent no. 2. The result was that the Pickup turned turtle causing grievous injuries to the inmates including deceased Balu.
4. The learned Claims Tribunal has held that the vehicle was driven rashly and negligently by respondent no. 2 and that the said Pickup belonging to the respondent no. I, was insured with respondent no. 3. It has been further held that the deceased was engaged to load and unload, the gift articles of the marriage, in that Pickup and the respondent no. 3 failed to prove that the deceased was a gratuitous passenger in the said Pickup and therefore there was breach of policy of Insurance. It has been held that the deceased died as a result of the injuries sustained in the said accident. The respondents have been jointly and severally held to be liable to pay compensation in the sum of Rs. 3, 45, 5001- to the claimants along with the interest at the rate of 7.5% per annum from the date of the application till the date of award. The amount paid under Section 140 of the Motor Vehicle Act ("M. V. Act", for short) has been ordered to be adjusted against the final compensation.
5. The respondent no. 3 i.e. the Insurance Company is aggrieved by the Judgment and Award.
6. The short point that arises in the present appeal is whether the respondent no.3 is liable to indemnify the owner of the said Pickup, i.e. the respondent no.1, in respect of the death of the said Balu Gaude and consequently liable to pay the compensation awarded by the learned Claims Tribunal.
7. Mr. E. Afonso, learned counsel for the respondent no. 3, argued that on account of amendment carried out to Section 147 of the M. V. Act, on 14/11/1994, the liability in respect of death or bodily injury to any person including either the owner of the goods or his authorised representative carried in the goods vehicle, is covered and the deceased being gratuitous passenger, his risk is not covered by the Insurance policy. The learned counsel argued that the words "bodily injury to any person", mentioned in said section 147(1)(b), refer only to a third party and not to a passenger travelling in the goods carriage whether gratuitous or otherwise. He has relied upon "National Insurance company Limited V/s. Rattani and others"[(2009) 2 SCC 75] : (2009 ALL SCR 246] and "National Insurance Company Limited V/s. Cholleti Bharatamma and others"[(2008) 1 SCC 423] : (2008(1) ALL MR 436 (S.C.)]". He further contended that the records reveal that 30 passengers were returning from marriage by the said Pickup and therefore it can be said that the deceased was also a passenger. He has invited my attention to the Written Statement of the respondent no. I (owner of the Pickup) wherein there is no mention that any goods were carried by the said Pickup. Relying upon the judgment of "Cholleti Bharatamma" [2008(1) ALL MR 436 (S.C.)] (supra), the contention of the learned counsel for the respondent no. 3 is that the owner or representative of the owner should sit in the cabin of the vehicle. He pointed out that the evidence on record does not reveal that the deceased was sitting in the cabin. He has also invited my attention to the definition o
