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2018 Supreme(Bom) 561
IN THE HIGH COURT OF BOMBAY AT AURANGABAD
M.S. SONAK, J.
New India Assurance Company Ltd. - Appellant
Versus
Chandrakala Madhukar Mengawde - Respondents
First Appeal No. 1967 of 2013
Decided On : 15-01-2018
For the Appellant :S.G. Chapalgaonkar, Advocate.
For the Respondent:S.L. Bhapkar, Advocate.
Headnote:
Motor Vehicles Act, 1988 - Section 147 - Motor Accident Claim - FIR - Motor Vehicles said Act there is absolutely no obligation upon Insurance Company to assume liability towards any injury or demise to such gratuitous passenger - Even factually Insurance Company did not cover any liability towards any such gratuitous passenger - Submits that this is additional reason as to why Insurance Company who never have been held liable in like cases - In support of this proposition relies upon New India Assurance - Others National Insurance - Cholet others Oriental Insurance and others United India Insurance Company - Suresh another – Held, Case there is absolutely no dispute that cause of action has arisen after Amendment in which crucial expression including owner goods or his authorized representative carried in vehicle came to be introduced in Section said Act - In supra Hobble Supreme Court has that Amendment was not clarify cattery in nature and therefore there was no question of giving it any retrospective effect so as to cover cases where cause of action arose prior to Amendment - Therefore principle in supra is not applicable to facts present case in which cause of action has admittedly arisen after Amendment - Most other decisions relied upon by counsel follow supra principle and therefore are distinguished on same ground as aforesaid - In addition supra in fact it was admitted that there courted no gift articles in vehicle concerned and therefore passengers courted simply gratuitous passengers not travelling in their capacity as owners of any goods - In Cholet supra Insurance Company was held liable in respect of only one passenger who was actually found to be travelling as owner goods but liability in respect of other passengers who courted not so found was not foisted upon Insurance Company This document in fact assists respondents than appellant Insurance Company – Supra is relied upon supra principle and is therefore required to be distinguished on same basis as supra has been distinguished - In Suresh supra deceased was gratuitous passenger and no goods courted found to be carried in offending vehicle - On this factual ground decision is clearly distinguishable – Thus both on facts as courtly as in law it is not possible to accept two contentions raised by behalf of appellant – Appeal disposed
1. Heard Mr. S.G. Chapalgaonkar learned counsel for the appellant and M.L. Bhalekar learned counsel for the respondents/claimants. By order dated 7.8.2013, this Court had made it clear that the appeal itself will be heard finally at the stage of admission. Accordingly, record and proceedings were called for and at the request of and with the consent of learned counsel for the parties, the appeal is admitted and taken up for final disposal.
2. Mr. Chapalgaonkar learned counsel for the appellant has raised following two grounds in support of the appeal:-
(a) That the driver of the offending vehicle responsible for the accident was licenced only to drive a non-transport vehicle. Since, the offending vehicle has been admittedly to be founded to be a transport vehicle, which the driver was never authorized to drive, there is a fundamental breach of the condition of the Insurance Policy. Mr. Chapalgaonkar submits that in these circumstances, the Motor Accident Claims Tribunal (MACT) erred in foisting liability on the appellant Insurance company.
(b) That from the pleadings as well evidence on record that deceased Madhukar was nothing but the gratuitous passenger travelling in a goods Vehicle. In terms of Section 147 of the Motor Vehicles Act, 1988 (said Act), there is absolutely no obligation upon the Insurance Company, to assume liability towards any injury or demise to such a gratuitous passenger. Even factually the Insurance Company did not cover any liability towards any such gratuitous passenger. Mr. Chapalgaonkar submits that this is a additional reason as to why the Insurance Company, who never have been held liable in the like cases. In support of this proposition, Mr. Chapalgaonkar relies upon New India Assurance Co. Ltd. v. Asha Rani and others [(2003) 2 SCC 223], NICU v. Rat and ors. [(2009) 2 SCC 75], National Insurance Co. Ltd. v. Cholleti Bharatamma and others [(2008) 1 SCC 423], Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy and others [2003 2 SCC 339] and United India Insurance Company v. Suresh K.K. and another [(2008) 12 SCC 657].
3. Mr. S.L. Bhapkar learned counsel for the respondents/claimants submits that the first ground raised by Mr. Chapalgaonkar no longer holds good in the light the decision of the Hon'ble Supreme Court in the case of Mukund Dewangan v. Oriental Insurance Company Limited [(2017) SCC Online SC 788]. He submits that even otherwise, such ground stands negated by the Hon'ble Supreme Court in the case of National Insurance Company Ltd. v. Annappa Irappa Nesaria & Ors. [AIR 2008 SC 1418].
4. Mr. Bhapkar submits that in this case, the pleadings as well as the evidence on record clearly indicates that the deceased Madhukar was travelling in the Goods Vehicle along with his goods i.e. Milk Cans and therefore, any liability towards the deceased was completely covered in terms of the provisions of Section 147 of the Motor Vehicles Act as amended in the year 1994. Mr. Bhapkar submits that infact the factual position stands admitted by the Insurance Company in its written statement and therefore, the second ground urged in support of his appeal neither arising nor is required to be decided in favour of the appellant Insurance Company. Mr. Bhapkar points out that most of the decisions relied upon by the appellants pertain to the position of Section 147 of the said Act prior to its amendment in the year 1994. For these reasons, Mr. Bhapkar submits that this appeal may be dismissed.
5. So far as the first ground raised by Mr. Chapalgaonkar is concerned, the same, stands answered against the appellant in Mukund Dewangan (supra) and Annappa Irappa Nesaria (supra). In both these cases, it has been held that the Insurance Company cannot deny any liability on the ground that driver, who was having licence to drive Light Motor Vehicle was found to be driving a transport vehicle without any additional endorsement on the licence to drive such a vehicle. In this case, there is absolutely no dispute that th
