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2019 DIGILAW 2204 (BOM)

New India Assurance Company Ltd. v. Anilkumar

2019-09-24

M.G.GIRATKAR

body2019
JUDGMENT : M.G. Giratkar, J. All these three Appeals arise out of a common judgment, dated 3rd September, 2007, passed by the learned President, Motor Accident Claims Tribunal, Buldana, in Motor Accident Claim Petition Nos. 242 of 2001, 243 of 2001 and 249 of 2001. 2. The facts giving rise to the present appeals are, in short, as under:- 3. That, all the claimants-respondents in these three appeals were the employees of Maharashtra State Electricity Board, Deulgaon [Raja]. On 2nd November, 2001, they were going to Buldana for office work. The owner and driver of the offending vehicle was also going to Deulgaon [Raja]. Therefore, all the claimants were travelling in the vehicle of the respondent no. 1 [before the Claims Tribunal], i.e. the owner of the offending trax. The said jeep was driven by the driver/owner in a rash and negligent manner. When the said jeep reached near village Malgi, the same turned turtle. All the claimants sustained grievous injuries. They were admitted in the hospital. They sustained permanent disability. All the claimants filed Claim Petitions. 4. The respondent-Insurance Company appeared and contested all the claims. The Insurance Company has denied its liability on the ground that the vehicle was transferred to the present owner. The Insurance Policy was in the name of registered owner [first owner]. Therefore, Insurance Company is not liable. It is submitted that all the claimants were travelling as passengers in the offending Trax and, therefore, there is a breach of policy condition. Hence, the Insurance Company is not liable to pay any compensation. 5. All the claimants were the employees of Maharashtra State Electricity Board. Therefore, they were at liberty to file claim petitions before the Labour Court under the provisions of the Workmen's Compensation Act, 1923. It is the defence of the Insurance Company that the insurance policy was issued as a “Private Car Policy” and, therefore, the Insurance Company is not liable to pay compensation for the use of said vehicle for carrying passengers. 6. The learned Tribunal framed the Issues. Both the parties have adduced their respective evidence. After hearing both the sides, the Tribunal granted compensation for the injuries/disabilities sustained by the respective claimants. Hence, the present appeals. 7. Heard learned Adv. Shri A.H. Patil for the appellant-Insurance Company. 6. The learned Tribunal framed the Issues. Both the parties have adduced their respective evidence. After hearing both the sides, the Tribunal granted compensation for the injuries/disabilities sustained by the respective claimants. Hence, the present appeals. 7. Heard learned Adv. Shri A.H. Patil for the appellant-Insurance Company. He has submitted that the Insurance Company is not liable to pay any compensation because the insurance policy was in the name of the previous owner. The vehicle was transferred to Ramesh Wagh, the respondent no. 2 in the present appeals. Though he was a registered owner, the insurance policy was not issued in his name and, therefore, Insurance Company is not liable for payment of compensation. 8. It is pertinent to note that there is a specific provision under the Motor Vehicles Act, 1988. Section 157 of the said Act reads as under:- 157. Transfer of certificate of insurance.- (1) Where a person in whose favour the certificate of insurance has been issued in accordance with the provisions of this Chapter transfers to another person the ownership of the motor vehicle in respect of which such insurance was taken together with the policy of insurance relating thereto, the certificate of insurance and the policy described in the certificate shall be deemed to have been transferred in favour of the person to whom the motor vehicle is transferred with effect from the date of its transfer. [Explanation.- For the removal of doubts, it is hereby declared that such deemed transfer shall include transfer of rights and liabilities of the said certificate of insurance and policy of insurance.]. (2) The transferee shall apply within fourteen days from the date of transfer in the prescribed form to the insurer for making necessary changes in regard to the fact of transfer in the certificate of insurance and the policy described in the certificate in his favour and the insurer shall make the necessary changes in the certificate and the policy of insurance in regard to the transfer of insurance.” 9. As per Section 157 of the Motor Vehicles Act, 1988, where a person, in whose favour the certificate of insurance has been issued in accordance with the provisions of this Chapter, transfers to another person the ownership of a motor vehicle in respect of which such insurance was taken together with the policy of insurance relating thereto, the certificate of insurance and the policy described in the certificate shall be deemed to have been transferred in favour of the person to whom the motor vehicle is transferred. In view of the specific provision in Section 157 of the said Act, the objection raised by the Insurance Company that insurance policy was in the name of previous owner and, therefore, Insurance Company is not liable to pay compensation has no force. 10. The learned Counsel Shri A.H. Patil has submitted that all the claimants being the employees of Maharashtra State Electricity Board, they could have filed claims before the Labour Court under the provisions of the Motor Vehicles Act and, therefore, Insurance Company is not liable to pay compensation. Section 167 of the Motor Vehicles Act is very clear. As per Section 167 of the said Act, it is the choice of the claimants/injured/legal heir of the deceased person where to file a claim petition. Section 167 of the Motor Vehicles Act is reproduced below:- 167. Option regarding claims for compensation in certain cases.- Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of, or bodily injury to, any person gives rise to a claim for compensation under this Act and also under the Workmen's Compensation Act, 1923, the person entitled to compensation may without prejudice to the provisions of Chaper X claim such compensation under either of those Acts but not under both.” 11. Therefore, the choice is given to the claimant to choose the forum either before the Labour Court under the Workmen's Compensation Act or before the Claims Tribunal as per the provisions of the Motor Vehicles Act. 12. The learned counsel has submitted that all the claimants were travelling as passengers in the offending vehicle and, therefore, Insurance Company is not liable to pay compensation. To prove the contention, the Insurance Company has examined witness-Chandrashekhar Pande. He has admitted in his cross-examination that the insurance policy was a comprehensive policy. 12. The learned counsel has submitted that all the claimants were travelling as passengers in the offending vehicle and, therefore, Insurance Company is not liable to pay compensation. To prove the contention, the Insurance Company has examined witness-Chandrashekhar Pande. He has admitted in his cross-examination that the insurance policy was a comprehensive policy. It is held by this Court and the Apex Court in several judgments that when the comprehensive policy is issued by the Insurance Company, then it is its liability to pay compensation. As per Section 147 of the Motor Vehicles Act, first the Insurance Company has to comply with the Award and then it can recover the amount from the registered owner in case of breach of policy condition. 13. It is submitted that there was also a breach of policy condition because the claimants were travelling in the offending vehicle; but there is no evidence to show that they were travelling as passengers in the offending vehicle. Exh.53 was issued by the Office of Maharashtra State Electricity Board. As per Exh.53, the vehicle was not hired for carrying the claimants. It is specifically observed by the Claims Tribunal that the witness of Insurance Company has not proved that there was any breach of policy condition. There is no evidence to show that the claimants were travelling as passengers in the vehicle. 14. Learned Adv. Shri Patil has submitted that if the claimants were not passengers paying fare, then they were the gratuitous passengers and, therefore, it was their risk. In support of his submission, he has pointed out the judgment of Hon'ble Apex Court in the case of United India Insurance Co. Ltd., Shimla v. Tilak Singh [ (2006) 4 SCC 404 ], in which case, the Hon'ble Apex Court has held “Third-party risk - Liability of insurer to pay compensation under Section 147 - Extent of - Risk of death or injury to gratuitous passenger carried in a private vehicle, if covered - Held, an insurance policy under S. 147 does not cover such a risk.” In the present appeals, nothing is on record to show that the appellants were gratuitous passengers or they were fare paying passengers. Therefore, the cited decision is not applicable to the case in hand. The learned Adv. has also pointed out the decision of the Hon'ble Supreme Court in the case of Manuara Khatun v. Rajesh Kr. Therefore, the cited decision is not applicable to the case in hand. The learned Adv. has also pointed out the decision of the Hon'ble Supreme Court in the case of Manuara Khatun v. Rajesh Kr. Singh [ (2017) 4 SCC 796 : 2017 AIR (SC) 1204], wherein it is observed that “The vehicle was carrying gratuitous passengers - Insurance company not liable to pay compensation to victims of accident who were gratuitous passengers. However, insurance company directed to pay compensation awarded to victims and recover the same from owner of vehicle in execution proceedings.” In the present case, the Insurance Company has not examined owner/driver of the offending vehicle to prove that the claimants were travelling in the offending vehicle as gratuitous passengers or fare paying passengers. In such a situation, the cited decision is not applicable to the case in hand. 15. In the recent judgment of this Court in case of Malanbai Mahipatrao Tumane v. Suresh Natthuji Moharle [2019 (3) Mh.L.J. 821], it is held that to prove the breach of policy condition, there must be a fundamental breach of the insurance policy. The accident took place due to rash and negligent driving of the driver of the offending vehicle. It is the occurrence of accident and not because the claimants were travelling as passengers in the vehicle and, therefore, there is no fundamental breach of insurance policy. 16. The learned Tribunal has taken into consideration all the material defence raised by the Insurance Company. Hence, there is no merit in all the three appeals. Accordingly, the appeals are dismissed with no orders as to costs.