Allowed

New India Assurance Co.Ltd a'Bad v. Pama Vithal Magar and Ors.

Bombay HC27 Jan 2015FA/194/2000

Case brief

AI extract

What is this about?

The High Court allowed the first appeal filed by New India Assurance Company. It quashed the Motor Accident Claims Tribunal's order awarding compensation, ruling that the deceased was a passenger at the time of the accident, not an employee, thereby exempting the insurer from liability under the policy.

What did the court decide?

The impugned judgment and order of the Motor Accident Claims Tribunal is quashed and set aside. The amount deposited by the appellant is to be refunded.

New India Assurance Co.Ltd a'Bad Vs Pama… — Contract and Commercial Disputes | Bombay HC (2015)

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1 56-fa194-2000.odt

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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FIRST APPEAL NO.194 OF 2000

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New India Assurance Company
Limited, having its Head
Office and registered Office
atNewIndiaAssurance ..Appellant
Building, 87, M.G. Marg, Fort,
Mumbai 1 and having Divisional
Office at Aurangabad

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V E R S U S

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1 Pama w/o. Vithal Magar, age 39 years, occ. Household and agriculture, r/o. Khandala, Tq. Vaijapur, Dist. Aurangabad

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2 Alka d/o. Vithal Magar, age 14 years

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3 Surekha d/o. Vithal Magar, age 12 years,

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4 Sundar d/o. Vithal Magar, age 9 years,

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5 Ganesh s/o. Vithal Magar, age 6 years,

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6 Ramkishan s/o. Vithal Magar, age 5 years,

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2 56-fa194-2000.odt

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7 Mohammad Issaq Mohd. Yakub, age Major, occ. Tempo owner, ..Respondents

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r/o. Khandala, Tq. Vaijapur, District Aurangabad

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Mr.D.S.Kulkarni, advocate i/b. Mr.S.L.
Kulkarni, advocate for appellant

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Mr.M.D.Joshi, advocate for respondent nos.1
to 6

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CORAM : M.T. JOSHI, J.
DATE : JANUARY 27, 2015

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ORAL JUDGMENT :

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Heard both sides.

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2]Aggrieved by the direction to indemnify the

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owner of a light goods vehicle for the death of

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Vitthal, present appeal is preferred by original
respondent no.3 - New India Insurance Company
Limited.

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3]The oral evidence along with other documentary

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evidence would show that the vehicle involved in

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the accident, bearing registration No.MH-20-A-

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3 56-fa194-2000.odt

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3632, a TATA make vehicle, was dashed by an
unknown vehicle on 26th November, 1992 on Vaijapur
to Aurangabad road. In the said accident,
deceased – Vitthal has died. It was the case of
respondent nos.1 to 6 that the deceased was
working as Cleaner over the said goods vehicle.
Therefore, the compensation at the rate of Rs.One
lakh was claimed.

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4]The main ground of defence of present

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appellant was that the deceased was traveling as a
passenger in the goods vehicle and therefore, as
there was breach of the terms and conditions of
the policy of insurance, it is not liable to pay
the compensation.

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5]The witness of respondent nos.1 to 6 i.e.
original claimants namely, Shamrao, driver of the
vehicle, has admitted that the the deceased was

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4 56-fa194-2000.odt

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not working as Cleaner on the said goods vehicle
at the time of accident and he had left said job
before one year prior to the accident. Learned
Member, therefore, held that the deceased was
being carried as a passenger in the said goods
vehicle, however, relying on the ratio in the case
of 1993 TAC Vol II 644, New India Assurance Co.

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Ltd. and anr. Vs. Kamalbai and ors., it was
observed that merely as the vehicle was carrying
more passengers than the permit, the insurance
companycannotbeexonerated.Therefore,

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compensation was awarded from the present
appellant – Insurance Company also.

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6]Mr.Kulkarni, learned counsel for the

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appellant, submits that learned Member has
misdirected himself in granting compensation. The
issue was not as to whether, any passenger was
permitted in goods vehicle, but it was as to

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5 56-fa194-2000.odt

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whether, any passenger can at all be carried in the
goods vehicle against the conditions of the permit
and the terms and conditions of the policy of

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insurance. He submits that the accident has
occurred on 26thNovember, 1992. During the
relevant period, even the owner of the goods
vehicle was not permitted in the goods vehicle and
the insurer was not statutorily liable to insure
the risk of the said owner and therefore, he
submits that the appeal may allowed.

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7]Mr.Joshi, on the other hand, submits that the
deceased was working as a Cleaner on the said
vehicle and said vehicle was carrying more
passengers than the permit and therefore, the
appeal may be dismissed.

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8]On the basis of this material, following point
arises for my determination :-

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6 56-fa194-2000.odt

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Whether the appellant is liable to
indemnify respondent no.7 – owner of the
vehicle ?

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.My answer to the above point is in negative
therefore, the appeal is allowed for the reasons to
follow.

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R E A S O N S

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9]Though respondent nos.1 to 6 – original
claimants claimed that the deceased was working as
Cleaner over the said goods vehicle, the driver of
the said vehicle, who was examined by very same
respondents, admitted in cross-examination that the
deceased had left said job about one year prior to
the accident. There was no issue as to whether,
any passenger could have been carried in the goods
vehicle. In that view of the matter, the finding
of the learned Member does not survive.

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7 56-fa194-2000.odt

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10]The appeal is hereby allowed without any order
as costs. The impugned judgment and order passed
by learned Member, Motor Accident Claims Tribunal,
Aurangabad, is quashed and set aside. The amount
deposited by the appellant be refunded to the
appellant after a period of sixty days from the
date of this judgment.

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kbp

New India Assurance Co.Ltd a'Bad v. Pama Vithal Magar and Ors.

Case brief

What is this about?

What did the court decide?

New India Assurance Co.Ltd a'Bad v. Pama Vithal Magar and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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