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2014 Supreme(Bom) 1093
In the High Court of Bombay at Goa
U.V. BAKRE, J.
The United India Insurance Co. Ltd.
Versus
Milagres Francisco Palha & Others
First Appeal No. 35 of 2014
Decided on : 09-05-2014
For the Appellant:A.R.S. Netrawalkar, Advocate.
For the Respondents:R1 to R5, Shirin Naik, R6, J.J. Mulgaonkar, R7, R8, A. R. Kantak, Advocates.
The main legal point established in the judgment is that the deceased, as a representative of the owner of the goods carried in the vehicle, was covered under the insurance policy, and the insurance company was liable to pay compensation.
Headnote:
Insurance - Motor Accident Claims - Motor Vehicles Act, 1988 - Section 166 - [166] - The judgment discusses the liability of the insurance company in a motor vehicular accident case. The court analyzed the evidence and held that the deceased was a representative of the owner of the goods carried in the vehicle, and therefore covered under the insurance policy. The court referred to various judgments to establish that the deceased was not a gratuitous passenger but a representative of the owner of the goods, and thus the insurance company was liable to pay compensation.
Fact of the Case:
The claimants filed a petition under Section 166 of the Motor Vehicles Act, 1988 for compensation due to the death of the deceased in a motor vehicular accident. The insurance company, as the insurer of the vehicle involved in the accident, challenged the judgment and award passed by the Motor Accident Claims Tribunal, claiming that the deceased was a gratuitous passenger and not covered under the insurance policy.
Finding of the Court:
The court found that the deceased was a representative of the owner of the goods carried in the vehicle and was engaged for loading and unloading the goods. The court held that the insurance company was liable to pay compensation to the claimants based on the evidence presented.
Issues: The main issue was whether the deceased was a gratuitous passenger or a representative of the owner of the goods carried in the vehicle, and thus covered under the insurance policy.
Ratio Decidendi: The court relied on the evidence and various judgments to establish that the deceased was not a gratuitous passenger but a representative of the owner of the goods, and therefore covered under the insurance policy. The court also emphasized the inclusive provision in Section 147(1)(b)(i) of the Motor Vehicles Act, which covers the owner of the goods or authorized representative carried in the vehicle.
Final Decision: The appeal was dismissed, and the court held that the insurance company was liable to pay compensation to the claimants based on the evidence and legal provisions.
1. Heard Mr. Netrawalkar, learned Counsel appearing on behalf of the appellant, Mr. Naik, learned Counsel appearing on behalf of respondents no. 1 to 5, Mr. Mulgaonkar, learned Counsel appearing on behalf of respondent no. 6 and Mr. Kantak, learned Counsel appearing on behalf of respondents no. 7 and 8.
2. On 24/04/2014, the parties agreed that the matter be disposed of at the stage of admission itself. Hence, the matter was heard finally.
3. By this appeal, the appellant has challenged the judgment and award dated 21/06/2013 passed by the learned Motor Accident Claims Tribunal at Panaji ('Tribunal', for short), in Claim Petition No. 54/2009.
4. The appellant, which was the insurer of Tempo bearing No. GA-01/T-9484 was the respondent no.2; respondents no. 1 to 5 were the claimants; respondent no. 6, the driver and owner of said Tempo bearing No. GA-01/T-9484 was respondent no. 1 whereas respondents no. 7 and 8, respectively the driver and owner of Kadamba Bus No. GA-01/X-0152, were the respondents no. 3 and 4 in the said Claim Petition No. 54 of 2009. Parties shall, hereinafter, be referred to as per their status in the Claim Petition.
5. The claimants had filed the said petition under Section 166 of the Motor Vehicles Act, 1988 for compensation on the ground of death of wife of the claimant no. 1 and mother of the claimants no. 2 to 5 in a motor vehicular accident which took place on 23/04/2009 at 19.20 hours at NH-17, Malwara, Agacaim.
6. The case of the claimants was that on that day and at the said time, respondent no. 1 was driving the Tempo bearing No. GA-01/T-9484 which was proceeding from Margao to Panaji, whereas respondent no. 3 was driving KTC Bus Bearing No. GA-01/X-0152 which was proceeding from Panaji towards Vasco. Both the drivers drove their vehicles in a rash and negligent manner, as a result of which the vehicles dashed against each other at Malwara, Agacaim and the deceased Ana Francisca Correia Palha expired as a result of injuries sustained by her in the said accident.
7. Respondent no. 1, who was the driver and owner of the said Tempo bearing No. GA-01/T-9484, stated in the written statement that on the relevant day, the deceased was travelling by his said Tempo as a representative of Jose Silveira and Bernadina Silveira, who had hired the same to transport the goods that were gifted by them to their daughter on the occasion of her marriage.
8. Respondent no. 2-Insurance Company, in its written statement, admitted that the said Tempo bearing No. GA-01/T-9484 was insured with it under Policy No. 120500/31/08/01/00003966 for the period from 11/10/2008 to 10/10/2009 and that its liability was governed by the terms and conditions of the said policy. It was specifically averred by respondent no. 2 that the deceased was travelling in the said Tempo as a gratuitous passenger and as such, respondent no. 2 was not liable to indemnify respondent no. 1.
9. The claimants had examined claimant no. 1, the father of the deceased, as AW1; an eyewitness, namely Antonio Gonsalves as AW2; one Shri Govind Gaonkar, one of the panch witnesses to the scene of accident panchanama and sketch as AW3; Shri Chandrahas Gaonkar, Head Constable then attached to Agacaim Police Station as AW4; and Shri Shamrao Chavan, the Police-Sub-Inspector then attached to Agacaim Police Station as AW5. Respondent no. 1 then examined himself as RW1 and Smt. Bernadina Fernandes e Silveira as RW2. Respondent no. 2 examined its Divisional Manager Shri Yeshwant Naik Rasaikar as RW3. Lastly, respondents no. 3 and 4 examined the respondent no. 3, Shashikant Shirodkar as RW4.
10. Upon consideration of the entire evidence on record, the learned Tribunal held that the accident was caused solely due to the rash and negligent driving of respondent no. 1, who was also the owner of the said Tempo which was insured with respondent no. 2. The Tribunal held that respondent no. 2 failed to prove that respondent no. 1 had violated the terms and conditions
