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2012 DIGILAW 347 (BOM)

Tarabai Uttam Gorkhe v. Sopan Khandu Bhagwat

2012-02-15

M.T.JOSHI

body2012
Judgment Heard. 2. The present Appeals have arisen out of the same award passed by the learned Member of the Motor Accident Claims Tribunal, Ahmednagar. 3. Deceased Pandurang Uttam Gorkhe met with an accidental death on 15.5.1990, while he was being carried in the goods truck on Nagar to Daund road near village Ghargaon. The goods truck was insured with New India Assurance Company Ltd., who has preferred First Appeal no.237 of 1996. It was the case of the original claimants that the accident has occurred due to the rash and negligent driving of the truck driver. Therefore, the pleadings were that the deceased alongwith members of the band party were returning with their big musical instruments after giving performance in a marriage. The instruments being bigger, it was not possible to travel by the State transport bus, therefore the band party members were travelling with their musical instruments as the owner of the goods. In the circumstances, the original claimants i.e. the parents and brother of the deceased claimed compensation of Rs.1,00,000/-. The driver as well as the owner, in their joint written statement had claimed that the deceased was being carried in a truck gratuitously, as there was raining. They pointed out that the truck was insured with the respondent no.3 in the Petition i.e. the insurer. 4. The original respondent no.3 i.e. the insurer, after traversing the pleadings of the original claimants submitted that the policy of insurance did not cover the passengers travelling in the said goods truck. According to it, at the material time, the deceased was travelling as the passenger and, therefore, it is not liable to pay any compensation. 5. The learned Member of the M.A.C.T. held that the deceased was the owner of the goods and, therefore, the insurer would be liable to pay compensation alongwith the driver and owner as the rash and negligent driving of the truck is proved. As regards the quantum, the compensation of Rs.40,000/-was awarded. 6. Aggrieved by the award against it, the insurer preferred First Appeal no.237 of 1996. Partly aggrieved by the grant of lesser compensation, the original claimants preferred First Appeal no.481 of 1995. 7. Mr. As regards the quantum, the compensation of Rs.40,000/-was awarded. 6. Aggrieved by the award against it, the insurer preferred First Appeal no.237 of 1996. Partly aggrieved by the grant of lesser compensation, the original claimants preferred First Appeal no.481 of 1995. 7. Mr. V.N. Upadhye, learned Advocate for the insurer, vehemently submitted that the evidence on record would show that about 78 members of the band party were travelling as the passengers in the goods truck and, therefore, the learned Member ought not have held the appellant-insurer liable to pay the compensation. On the other hand, Mr. V.S. Bedre, learned Advocate for the original claimants submitted that the evidence on record clearly suggested that the musical instruments being bigger one, the members of the band party were travelling as the owners of their respective goods. In the alternative, he submitted that since this is the sole Petition filed regarding the incident, the deceased should be accepted as the owner of the goods i.e. the musical instrument and accordingly, the award holding the insurer liable to pay the compensation, be upheld. He further submitted that the learned Member committed error in granting the meager amount of Rs.40,000/-towards the loss of an earning young man and hence, he submitted that compensation of Rs.1,00,000/-be awarded. 8. On this material, following point arises for my determination: (I) Whether the deceased was travelling in the goods truck in the breach of the terms and conditions of the policy of the insurance? (II) Whether the compensation awarded by the learned Member is just? My answer to point no.(I) is in the negative, to point no.(II) is in the affirmative. In the result, both the Appeals are dismissed without any orders as to costs for the following reasons. REASONS : 9. Mr. Upadhye, learned Advocate for the insurer does not deny that the owner of the goods travelling in the goods truck is covered by the policy of insurance. The only question is as to whether the deceased was travelling by the said goods truck, as the owner of the goods or the passenger? 10. The pleadings of the original claimants would show that since the musical instruments were bigger in size, it was not possible for the members of the band party to travel by the State transport bus. Mr. 10. The pleadings of the original claimants would show that since the musical instruments were bigger in size, it was not possible for the members of the band party to travel by the State transport bus. Mr. Upadhye, learned Advocate, however, submitted that the cross-examination of Uttam, the father of the deceased would show that he alongwith the deceased and other members of the band party were waiting for the State transport bus for a considerable time and as the bus did not turn up, ultimately, they gave signal to the present goods truck and thereafter they boarded in the same. 11. On the other hand, Mr. V.S. Bedre, learned Advocate points towards the deposition of the next of the witness i.e. Dada Gorakha, who was the uncle of the deceased and also member of the band party, to the effect that due to the large size of the musical instruments like drum etc., the party members were not able to travel by the State transport bus and, therefore, they started travelling with their musical instruments by making payment of Rs.200/-. 12. Mr. Upadhye, learned Advocate relied in the ratio in the case of National Insurance Co. Ltd. Vs. Cholleti Bharatamma and ors. (2008) 1 Supreme Court Cases 423. The Supreme Court in the said case reiterated the basic principle that passengers travelling in a goods carriage whether gratuitous or otherwise, were not required to be covered by the policy of the insurance, as per the provisions of section 147 of the Motor Vehicles Act, 1988. The reading of the authority shows that the Apex Court had decided various Appeals arising out of the claims made towards the personal injury or the death caused to various persons in various accidents, travelling by the goods vehicles. Specifically, we have the ratio in C.A. @ SLP (C) no.7248 of 2003 starting from paragraph Nos.22 to 25. 13. In the said case 20 persons were travelling in the truck alongwith their bags of paddy. The truck met with an accident. various claims were filed. L.R. of One of the deceased filed Claim Petition, claiming that the deceased were travelling in goods truck as the owner of the goods. The learned Member of the M.A.C.T. held that at best, the insurance Company is liable to pay compensation jointly and severally in respect of one non-fare paying passenger, who was the owner of the goods. L.R. of One of the deceased filed Claim Petition, claiming that the deceased were travelling in goods truck as the owner of the goods. The learned Member of the M.A.C.T. held that at best, the insurance Company is liable to pay compensation jointly and severally in respect of one non-fare paying passenger, who was the owner of the goods. Ultimately, the Supreme Court adverted to the submission of the learned counsel for the claimants that from within the 20 persons, as the only the L.R. of the sole deceased had preferred the Appeal, the Court should hold that atleast the claimant-respondents were entitled to compensation as the deceased was travelling as the owner of the goods. Upholding the contention, the Appeal of the insurance company was dismissed. 14. In the present case, what we find is that the petitioner pleaded that since it was not possible to travel by the State transport bus alongwith the bigger musical instruments, the members of the band party travelled by the goods truck. The witnesses of the petitioners deposed accordingly. There is a sole admission from the mouth of the illiterate father of the deceased that after waiting for the State transport bus, the deceased alongwith other party members boarded the goods truck. In the circumstances, in my view, the learned Member of the M.A.C.T. has correctly come to the conclusion that the deceased was travelling as the owner of the goods i.e. the musical instruments. Even otherwise, since this is a sole case, wherein the claim is made, the deceased in the alternative also can be held as the owner of the goods as is found in the case of National Insurance Co. Ltd. (supra). 15. For the foregoing reasons, First Appeal no.237 of 1996 preferred by the Insurance Company fails, without any order as to costs. 16. As regards the next Appeal by the claimants, it is to be noted that the deceased, 21 years aged young man, was a member of the village band party. His parents and a major brother had claimed compensation. The accidental death has occurred in the year 1990. 16. As regards the next Appeal by the claimants, it is to be noted that the deceased, 21 years aged young man, was a member of the village band party. His parents and a major brother had claimed compensation. The accidental death has occurred in the year 1990. The learned Member appreciated the oral evidence of the father of the deceased and the fact that as the marriage ceremony season is in the summer and winter, arrived at a finding that monthly income of the deceased was Rs.250/-per month i.e. Rs.3000/-per annum, deducting 1/3rd towards the personal expenses, the loss of dependency was arrived at Rs.2000/-per annum. By applying multiple of 16, compensation of Rs.32,000/-was awarded. Thereafter, an amount of Rs.4000/-each towards the loss of love and affection was granted and compensation of Rs.40,000/-was awarded. Though, no amount towards funeral expenses were awarded, taking into consideration that an amount of Rs.8000/-towards love and affection is granted, in my view, reasoning of the learned Member, cannot be faulted with as regards the quantum of compensation. In view of that matter, First Appeal no.481 of 1995 also fails. 17. Accordingly, both First Appeals are dismissed without any order as to costs.