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2015 Supreme(Bom) 1737
IN THE HIGH COURT OF BOMBAY AT GOA
K. L. WADANE, J
Mr. Nagu Naik - Appellants.
Versus
Mr. Swapnesh Prabhu - Respondents.
FIRST APPEAL NO. 128 OF 2010
Decided on : 29-09-2015
Advocate Appeared:
Mr. V.G.P. Dukle, Advocate for the claimants/appellants, Mr. E.Afonso, Advocate for respondent no.3-Insurance Company
Mr. V.D. D'souza, Advocate for the respondent no.4.
The central legal point established in the judgment is the determination of the insurance company's liability for compensation under the insurance policy and the payment of additional premium to cover the risk of the deceased conductor.
Headnote:
Motor Accident Claims Tribunal - Motor Vehicles Act - Section 166 - Summary of Acts and Sections: The court discussed the provisions of Sections 147 and 165 of the Motor Vehicles Act, as well as relevant case law, to determine the liability of the insurance company for compensation in the case of a deceased conductor involved in a motor vehicle accident. The court emphasized the coverage of risk under the insurance policy and the payment of additional premium to determine the entitlement of the claimants for compensation.
Fact of the Case:
The claimants filed a petition under Section 166 of the Motor Vehicles Act for compensation due to the death of their son and brother in a motor vehicle accident. The claim was dismissed by the Motor Accident Claims Tribunal, leading to the present appeal.
Finding of the Court:
The court found that the deceased conductor's risk was covered under the insurance policy, and the claimants were entitled to compensation as determined by the Presiding Officer while deciding the issue no.2.
Issues: The issues included negligence of the driver, entitlement of compensation, negligence of the deceased, ownership of the vehicle, breach of insurance policy terms, and jurisdiction of the Tribunal.
Ratio Decidendi: The court's decision was based on the determination that the risk of the deceased conductor was covered under the insurance policy, and the claimants were entitled to compensation as per the terms and conditions of the policy.
Final Decision: The appeal was partly allowed, setting aside the finding of the Presiding Officer to issue no.5-A and granting the claimants entitlement to compensation as determined by the Presiding Officer while deciding issue no.2.
1. The present appeal is directed against the judgment and award passed by the Presiding Officer of the Motor Accident Claims Tribunal, Margao in Claim Petition No.167 of 2008 dated 29th April, 2010, by which the claim of the claimants is dismissed. Therefore, the claimants have preferred this present appeal.
2. The parties are referred to their original status.
3. The claimants have filed the petition under Section 166 of the Motor Vehicles Act on account of death of son of the claimant nos. 1 and 2 and brother of the claimant no.3 namely Prasad Nagu Naik, due to motor vehicle accident, which took place on 18.5.2008 at about 18.30 hours near railway over bridge, Curchorem, Goa.
4. The Brief facts can be stated as follows:-The deceased Prasad Nagu Naik was the Conductor on the Mini-bus bearing no. GA-02-T-4339, which was proceeding from Curchorem bus stand to Usgaon-Ponda via Dabal. When the bus reached at the spot of accident, it turned turtled on its cleaner side/left side on the upper slope approaching the railway over-bridge. In the accident, the deceased received serious injuries and died because of the same.
5. The accident occurred due to rash and negligent driving of the bus by its driver – respondent no.1
6. The claimants have claimed total compensation of Rs. Eight lakhs under the different heads namely loss of income, love and affection, care, company of the deceased, funeral expenses and future prospects etc., on the ground that the deceased was earning Rs. 9000/-per month and the claimants were fully dependent upon him.
7. The respondent no.1 contested the petition and has contended that the petition is not maintainable as the accident occurred due to mechanical defect i.e. handle of the gear came out from the gear box due to which bus become neutral and therefore, getting down to slop. The deceased was standing at the door. Therefore, the respondent no.1 prayed to dismiss the petition.
8. The respondent no.2 filed his written statement and thereby contended that the bus involved in the accident was already sold out to respondent no.4 on 20.2.2008 much prior to the date of the accident. Therefore, the petition suffers from mis-joinder of the parties. He further contended that the bus was insured with the respondent no.3 at the relevant time of the accident and the Insurance was transferred in the name of the respondent no.4 with effect from 10.3.2008. The respondent no.3 contended that the insured had committed breach of the terms and conditions of the policy. The bus was carrying 44 passengers, however, the bus was having permit to carry only 39 passengers and two employees i.e. driver and the conductor. The respondent no.3 has questioned the jurisdiction of the Tribunal on the ground that the deceased Conductor was not the third party. Therefore, the claim is not maintainable.
9. The respondent no.4 has also contested the petition and thereby contended that the vehicle was carrying required number of passengers and there was no contravention or violation of any terms and conditions of the Insurance Policy.
10. Considering the rival pleadings of the parties, the learned Presiding Officer has framed six issues, (1) relating to the negligence of the respondent no.1, (2) entitlement of the compensation (3) negligence of the deceased, (4) relating to the ownership of the respondent no.2, (5) regarding breach of the terms and conditions of the policy b y the insured and (5-A) regarding jurisdiction of the Tribunal. The issue nos.1 to 5 are decided in favour of the claimants while the Issue no. 5A relating to the jurisdiction against the claimants. Consequently, the claim petition is dismissed. Hence, the present appeal.
11. I have heard the arguments of Mr. Dukle, learned Advocate appearing for the claimants/appellants, Mr. E.Afonso, learned Advocate appearing for the respondent no.3-Insurance Company and Mr. V.D. D'souza, learned counsel for the respondent no.4.
12. Considering the evidence on record and upon
