Advocates:
['RATHI SWAPNIL S', 'B R KEDAR', '', 'GORE RAVINDRA VITTHAL NOA', 'R/ DELETED', 'G V GHODE & R V GORE']

1 FA-396-2012-J

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

FIRST APPEAL NO. 396 OF 2012

United India Assurance Company Ltd.,

Through its Deputy Manager,

T.P. Cell, Divisional Office – I,

Osmanpura, Aurangabad.

...Appellant

(Orig. Respondent No.2)

Versus

1.

Yashodabai w/o Radhakishan Lokhande

Age: 34 years. Occu: Household,

R/o: Peer Pimpalgaon,

Tq. & Dist. Dist. Jalna.

2.

Alka d/o Radhakishan Lokhande,

Age : 9 years, Occu: Nil,

R/o. As above.

3.

Krishna s/o Radhakishan Lokhande,

Age : 6 years, Occu: Nil,

R/o. As above.

4.

Jayshree d/o Radhakishan Lokhande,

Age : 4 years, Occu: Nil,

R/o. As above.

(Respondent Nos. 2 to 4 are minors

being represented through their

Natural mother i.e. Resp. No.1)

5.

Kiran s/o Radhakishan Lokhande,

Age : 22 years, Occu: Nil,

R/o. As above.

6.

Banduji s/o Dagdu Lokhande,

Age : 62 years, Occu: Labour,

R/o. As above.

7.

Sunderbai w/o Dagdu Lokhande,

Age : 58 years, Occu: Household,

R/o. As above.

(Respondent No. 7 deleted vide

Court’s order dated 24.03.2017)

8.

Narayan s/o Bhaurao Kolte,

Age : 52 years, Occu: Owner of vehicle,

R/o. Tatewadi, Tq. & Dist. Jalna.

...Respondents

(Resp.Nos. 1 & 7 Ori.Claimants

2 FA-396-2012-J

Resp. No. 8 Orig. Resp. No.1)

Mr Swapnil Rathi, Advocate for Appellant

Mr Swapnil M. Mule h/f Mr R.V. Gore, Advocate for

Respondent Nos.1 to 6

Mr B.R. Kedar, Advocate for respondent No. 8

CORAM : SHRIKANT D. KULKARNI, J.

DATE : 23.02.2022

ORAL JUDGMENT :

1,

The insurance company has disputed its liability to pay the

compensation determined in M.A.C.P. No. 324/2004 by the M.A.C.T.,

Jalna.

2.

Heard Mr Swapnil Rathi, learned counsel for the appellant, Mr

Swapnil Mule holding for Mr R.V. Gore, learned counsel for respondent

Nos. 1 to 6 and Mr B.R. Kedar, learned counsel for respondent No. 8.

3.

Mr Rathi, learned counsel for the appellant/insurance company

invited my attention to the impugned Judgment passed by the Tribunal. He

submitted that the deceased was travelling in a tipper bearing registration

No. MH 10 A 6700 as a cleaner. The tipper was insured with the appellant.

It was a ‘Act policy’ and thereby covering third party risk. He invited my

attention to the insurance policy of the vehicle (tipper) vide Exh. 37. He

pointed out that schedule of premium and submitted that risk of the

cleaner is not covered. The Tribunal has committed grave error in

fastening the liability on appellant/insurance company jointly and severally

with the owner of the vehicle. He submitted that the appellant/insurance

3 FA-396-2012-J

company needs to be absolved from the liability in view of the provisions

of section 147 (1) (b) of the Motor Vehicles Act, 1988.

4.

Mr Swapnil Mule, learned counsel for the original

claimants/respondent Nos.1 to 6 supported the findings recorded by the

Tribunal. He submitted that the Tribunal has considered the evidence on

record and the defence raised by the insurance company and rightly

turned down the defence by assigning the cogent reasons. There is no

error on the part of the Tribunal while fastening the liability on the

appellant to pay the amount of compensation jointly and severally with the

owner. Mr Mule further submitted that if this court comes to the conclusion

that the risk of the cleaner is not covered by the insurance policy of the

vehicle, the order of pay and recover may be passed by placing reliance

on the citation and in case of Manager, National Insurance Co. Ltd. Vs.

Sajui P. Paul & Anr. reported in 2013 AIR (SC) 1064.

5.

Mr B.R. Kedar, learned counsel for respondent No. 8/owner of

the vehicle submitted that if the insurance policy of the vehic