Single judge allowed the appeal set aside the Tribunal award and dismissed the claim petition against the Insurance Company. Held that deceased was an illegal occupant in a chassis and risk not covered by policy.
Impugned award set aside; Claim Petition dismissed; Amount deposited refunded to appellant.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
1
FA NO.36 of 2004
IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD
FIRST APPEAL NO.36 OF 2004
New India Assurance Company Ltd.,
Through it's Divisional Manager,
Adalat Road, Aurangabad
...APPELLANT
(Orig. Resp. No.3)
VERSUS
1.Gangubai w/o Raosaheb Solat,
Age: 46 years, Occu. Household,
R/o. Gangapur, Tq. Gangapur,
Dist. Aurangabad
(Orig. Claimant)
2.TATA Engineering & Locomotive
Company Limited, Through it's
Regional Sales Office, TELCO,
Ambala-Chandigarh Road,
Dist. Ropur (Punjab) ...RESPONDENTS
(Orig. Resp. No.1)
***
Mr. S.G. Chapalgaonkar, Adv. for Appellant;
Mr. V.D. Patnurkar, Adv. for Resp. No.1
Mr. A.S. Bajaj, Adv. for Resp. No.2.
***
CORAM: P.R.BORA, J.
DATE :July 28th, 2017.
ORAL JUDGMENT:
2 FA NO.36 of 2004
3 FA NO.36 of 2004
was a Chassis and was not at all meant for transportation of goods, or any passenger. It was also contended that the permit to the said vehicle was issued only for the purpose of carrying the Chassis from the manufacturer to the dealer. It was also the defense raised by the Insurance Company that the vehicle was possessing a Trade Certificate. It was also specifically pleaded that risk of the deceased was not covered under the insurance policy meant for the offending vehicle.
5. The Tribunal, however, turned down the
objections so raised by the Insurance Company and allowed the petition against the Insurance Company also, holding it jointly and severally liable with the owner of the said Chassis, and directed it to pay compensation of Rs.1,35,000/- to the claimants with interest thereon at the rate of 9 per cent per annum from the date of the petition till its realization. Aggrieved thereby, the Insurance Company has preferred the present appeal.
4 FA NO.36 of 2004
for the appellant Insurance Company, submitted that the Tribunal has manifestly erred in not appreciating the defenses raised by the Insurance Company. Learned Counsel submitted that the vehicle was having a Trade Certificate, meaning thereby that it was permitted to be carried from the manufacturer to the dealer. Learned Counsel further submitted that no passenger was allowed to be carried on the said chassis. Learned Counsel submitted that admittedly, the deceased was father of the person who was driving the said chassis and the said driver had illegally allowed the deceased to travel along with him on the said Chassis. Learned Counsel further submitted that the risk of the deceased was not at all covered by the Insurance policy pertaining to the said vehicle. Learned Counsel pointed out that in so far as the Insurance for Chassis is concerned, it is a usual practice to purchase the policy in group, for more than one chassis at a time. Learned Counsel submitted that the insurance policy filed on record by the Insurance Company demonstrates the said fact. Learned Counsel submitted that, however, the Tribunal has wrongly held
5 FA NO.36 of 2004
that it was a comprehensive policy covering the risk of passengers by drawing some unwarranted inference and has allowed the claim petition even against the appellant Insurance Company. Learned Counsel submitted that the Tribunal has further erred in recording a finding that the deceased was a person travelling along with the goods in the said chassis and, therefore, his risk was covered by the Insurance policy and has, therefore, wrongly held the Insurance Company liable to pay the amount of compensation to the heirs of the deceased.
6 FA NO.36 of 2004
and award. Shri A.S.Bajaj, learned Counsel appearing for respondent no.2 also supported the impugned judgment and award. Learned Counsel submitted that the Tribunal has rightly discussed the facts involved in the petition and has correctly interpreted the relevant legal provisions while holding the appellant Insurance Company liable to pay the amount of compensation to the claimants. Learned Counsel submitted that no interference is warranted in the impugned judgment and award. He, therefore, prayed for dismissal of the appeal.
7 FA NO.36 of 2004
the said truck for the purpose of sitting, the material on record does not support her contention. Even in the claim petition, the offending vehicle is stated to be a Tata Chassis. In the spot panchnama also, the offending vehicle is described as a Tata Chassis. It is further significant to note that witness no.2, examined by the claimant, namely, Laxman Raosaheb Solat, who was at the relevant time driving the offending Tata Chassis, has admitted in his cross examination that except driver, no one else was allowed to sit in the cabin of the said Chassis. The learned Tribunal, however, has completely ignored the said evidence and on some wrong pre-conceived notions, has recorded a complete erroneous finding that the insurance policy of the offending vehicle was covering the risk of the passengers carried in the said vehicle. The moot question was whether it was permissible to carry any passenger by the said Chassis and as mentioned hereinabove, the answer was given by the witness examined by the claimant herself that it was not permissible. Even otherwise, the Chassis of a vehicle cannot be, in any case, held to be a goods carrier so as to
8 FA NO.36 of 2004
carry the goods through the said vehicle and, consequently, to allow the owner of the said goods to travel by the said vehicle. As has come on record, deceased Raosaheb was the father of Laxman who was driving the said Tata Chassis at the relevant time. It is evident that the said Laxman has illegally allowed his father to travel in the said chassis.
"41. Purposes for which motor vehicle with trade certificate may be used .— The holder of a trade certificate shall not use any vehicle in a public place under that certificate for any purpose other than the following:—
(a) for test, by or on behalf of the holder of a trade certificate during the course of, or after
9 FA NO.36 of 2004
completion of, construction or repair; or
(b) for proceeding to or returning from a weigh bridge for or after weighment, or to and from any place for its registration; or
(c) for a reasonable trial or demonstration by or for the benefit of a prospective purchaser and for proceeding to or returning from the place where such person intends to keep it; or
(d) for proceeding to or returning from the premises of the dealer or of the purchaser or of any other dealer for the purpose of delivery; or
(e) for proceeding to or returning from a workshop with the objective of fitting a body to the vehicle or painting or for repairs; or
f) for proceeding to and returning from airport, railway station, wharf for or after being transported; or
(g) for proceeding to or returning from an exhibition of motor vehicles or any place at which the vehicle is to be or has been offered for sale; or
(h) for removing the vehicle after it has been taken possession of by or on behalf of the financier due to any default on the part of the other party under the provisions of an agreement of hire-purchase, lease or hypothecation."
It was thus evident that the Chassis involved in the alleged
accident was not liable to be used for any other purpose
than prescribed in the aforesaid Rule. In the
circumstances, it was not permissible to carry any
10 FA NO.36 of 2004
passenger or any goods through the said Chassis. The policy of insurance also clearly demonstrates that the Chassis which was insured by the said policy was having seating capacity of only one person i.e. the driver of the vehicle. I reiterate that the said fact has also been admitted by the Driver of the said vehicle.
11 FA NO.36 of 2004
impugned judgment also are not relevant and inapplicable. On what basis the learned Tribunal has recorded a conclusion that the Insurance policy at Exh.45 is a comprehensive policy is not understood. On the contrary, the insurance policy clearly demonstrates that it was a transit policy, validity of which was only for a period of one month i.e. from 13th of May, 1998, to 12th of June, 1998.
12 FA NO.36 of 2004
occupant and his risk was, therefore, not covered by the said Insurance policy.
13 FA NO.36 of 2004
the Insurance Company has deposited the said amount. The record further shows that respondent no.1 i.e. the claimant was permitted to withdraw an amount of Rs.50,000/- from the deposited amount and the balance amount was directed to be invested in Fixed Deposit Receipt till decision of the appeal. In view of the conclusions recorded by me, the amount so deposited by the Insurance Company is liable to be refunded to it and liberty needs to be given to the appellant Insurance
Company to recover the amount from the owner of the offending vehicle which has been withdrawn by the claimant out of the said deposited amount.
ORDER
appellant Insurance Company stands set aside. Consequently, Motor Accident Claim Petition No.245/1998 stands dismissed against the appellant Insurance Company.
14 FA NO.36 of 2004
The First Appeal (No.36 of 2004) stands allowed in
aforesaid terms.
...
agp/36-04fa
3 issues framed by the court
Whether an insurance company is liable to compensate a deceased who was an illegal occupants travelling in a chassis vehicle holding a trade certificate.
Whether the Tribunal erred in holding the insurance policy covered passengers when the vehicle seating capacity was limited to the driver.
Whether the impugned Motor Accident Claim award against the appellant stands set aside.
Colour shows how this judgement treated each authority
National Insurance Company Vs. Jugalkishore and othersReferred¶26
National Insurance Company Vs. Jugalkishore and others ( AIR 1988 SC 719) · Who else cites this
United India Insurance Co.Ltd., Jalgaon Vs. Shaheda ParvinReferred¶26
United India Insurance Co.Ltd., Jalgaon Vs. Shaheda Parvin ( 2008 BCI 243)
National Insurance Company Ltd. Vs. Rattani and othersApplied¶60
National Insurance Company Ltd. Vs. Rattani and others ( AIR 2009 S.C. 1499) · Who else cites this
3 provisions across 2 enactments
New India Assurance Company Ltd.
Gangubai w/o Raosaheb Solat
TATA Engineering & Locomotive Company Limited
P.R.Bora
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court