Allowed

Naryan Tatya Pawar v. Anada Kishan Shinde and Anr.

Bombay HC5 Dec 2012FA/998/2012

Case brief

AI extract

What is this about?

In an appeal against a Motor Vehicles Act compensation award, the High Court held that based on oral evidence, the deceased was travelling with goods. Consequently, the Insurance Company could not be exonerated. The award was modified to hold the vehicle owner and insurer jointly liable for compensation.

What did the court decide?

The appellant and Respondent No. 2 to jointly pay Rs. 1,59,750 including interest.

Naryan Tatya Pawar Vs Anada Kishan Shinde and Anr. — Insurance | Bombay HC (2012)

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F.A.No.998/12

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 FARAD CONTINUATION SHEET NO.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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 APPELLATE SIDE, BENCH AT AURANGABAD

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 FIRST APPEAL NO.998 OF 2012

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Office Notes, Office
Memoranda of Coram,
appearances, Court's
orders or directions
andRegistrar's
orders.

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Court's or Judge's orders

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Mr.P.S.Agrawal, advocate for the appellant.
Mr.B.S.Kudale, advocate for the Respondent No.1.
Mr.S.G.Chapalgaonkar, advocate for Respondent No.2.

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 CORAM : S.V.GANGAPURWALA,J.

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 Date : 05.12.2012.

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PER COURT :

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Heard.

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The present Respondent No.1 has filed a petition U/s 166 of the Motor Vehicles Act, for compensation. The same was partly allowed. The present appellant was directed to pay compensation amount to the claimant. The Respondent No.2 Insurance Company is exonerated. Aggrieved thereby, the owner of the vehicle has filed the present appeal.

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Mr.Agrawal, learned counsel for the appellant submits that evidence on record clearly shows that the claimant was travelling along with the fertilizer bags and in such circumstance, the Insurance Company can not be exonerated. The Tribunal has negatived the claim only on the count that vehicle was a goods

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F.A.No.998/12

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vehicle and the claimant was travelling in the same. The evidence on record in respect of the claimant travelling with the goods has not been considered in proper perspective. According to the learned counsel, the oral evidence led before the Court clearly establishes that the claimant was travelling along with the goods and as such Insurance Company can not be exonerated.

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Mr.Chapalgaonkar, learned counsel for the Insurance Company submits that the vehicle was plied against the terms of the permit. The statement is recorded that apart from the claimant, there were other passengers who were travelling for hire and reward. The learned counsel relies on the judgment of the Apex Court in a case of "National Insurance Co. Ltd., Vs. Challa Upendra Rao and others" reported in AIR 2004 Supreme Court 4882 . So also the judgment of the learned Single Judge of this Court in a case of "Anil Tukaram Patil Vs. Vishnu Tukaram

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Shinde (Patil) and others" reported in 2007 (3) T.A.C. 661 . The learned counsel further states that even it is not proved that the claimant was travelling with the goods. The Tribunal has considered the said fact also.

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With the assistance of the learned counsel, I have gone through the judgment and the record and proceedings. Factum of accident, the vehicle being insured, is not disputed. The only issue of dispute is whether the claimant was travelling with the goods and

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F.A.No.998/12

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whether the Insurance Company can be made liable.

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The oral evidence has been led by the party. On the basis of the oral evidence led, it can be safely concluded that the claimant was travelling along with the fertilizer bags. The Tribunal has considered the fact that PW 5 Dwarkabai, though has given evidence that petitioner was carrying fertilizer, the said Dwarkabai in her statement made to the Police had not stated this fact and the same is the material omission. The evidence in its totality will have to be considered. If the oral evidence on record is considered along with the bill of the fertilizers produced on record, there is no hesitation to hold that the claimant was travelling with the fertilizer bags and the vehicle is a goods vehicle.

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The arguments of Mr.Chapalgaonkar, learned counsel about the breach of the policy and the permit could have been considered if the persons who were travelling on hire and reward would have been the claimants and further it would have been proved that they were travelling as fare paying passengers. In the present case, the terms of the policy are not spelt out. The claimant has travelled along with the goods as such would be entitled for compensation and the Insurance Company can not be exonerated. I have considered the case with regard to the facts involved in the present matter and in absence of the terms of the policy.

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In light of the above, the impugned award is modified and

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the appeal is allowed. It is held that the present appellant and the Respondent No.2 are jointly and severally liable to pay compensation amount to the claimant. The present appellant and Respondent No.2 shall jointly and severally pay an amount of Rs. 1,59,750/- (Rupees one lac fifty nine thousand seven hundred fifty) including the NFL amount to the claimant along with interest at the rate of Rs.6% p.a. from the date of petition till realisation. The statutory amount deposited is allowed to be withdrawn by the claimant-Respondent No.1. However, there shall be no order as to costs.

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(S.V.GANGAPURWALA,J.)

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Dt.05.12.2012. asp/office/Fa998.12

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F.A.No.998/12

Naryan Tatya Pawar v. Anada Kishan Shinde and Anr.

Case brief

What is this about?

What did the court decide?

Naryan Tatya Pawar v. Anada Kishan Shinde and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

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