1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO.297/1994 The New India Assurance Company Ltd. Having its registered office at 87, Mahatma Gandhi Road, Fort Bombay, and a branch office at Jalgaon, Dist.Jalgaon. .. APPELLANT [ORIG.RESP.NO.4] VERSUS 1] Satish s/o Ramkrishna Wani Age 23 years, Occ-Student R/o Type-II, 158-B, near Hospital Ordinance Factory, RESPONDENT Warangaon, Dist.Jalgaon. [ORIG.CLAIMANT] 2] Ramdas s/o Shamrao Koli, Truck driver (deleted since dead) 3] Liyakat Ali s/o Yusuf Ali Age 45 years, occ-business r/o Nasirabad, Tq.&Dist.Jalgaon 4] United India Insurance Co.Ltd. Jalgaon branch , Jalgaon. RESPONDENTS [ORIG.RESP.NOS. 2,3 & 5.] 5] Damu s/o Nathu Patil age 47 years, Occ-business 2 r/o Sakegaon, Tq.Bhusawal Dist.Jalgaon. RESPONDENT [ORIG.RESP.NO.1] (Died) through L.Rs. I] Suresh s/o Damu Patil Age Major,Occ-Business R/o village Sakhegaon Tq.Bhusawal,Dist.Jalgaon ii] Pandit s/o Damu Patil Age major, Occ & R/o as above. Iii] Pravin s/o Damu Patil Age Major, Occ-Service R/o Police line, Tq.Pachora,Dist.Jalgaon iv] Diwakar s/o Damu Patil Age major, Occ-business R/o Village Sakhegaon Tq.Bhusawal,Dist.Jalgaon v] Mrs.Pratibha w/o Prabhakar Choudhary, Age major, occ-household, R/o Varangaon Factory at Varangaon,tq,Bhusawal Dist.Jalgaon vi] Mrs.Alka M. Patil Age Major, Occ-household R/o Paithan Paper Mills 3 at Paithan, Dist.Aurangabad. .... Shri K.V.Kulkarni,Advocate for appellant Shri S.M.Kulkarni,Adv.for R.1. Shri D.V.Soman,Adv.for R.4 Shri V.B.Patil,Adv.for R.5(i) to (vi). .... CORAM : R.K.DESHPANDE,J. DATE : 04/08/2009 ORAL JUDGMENT : 1] This is an appeal by the Insurance Company challenging the judgment and award dated 28/9/1993 passed by Motor Accident Claims Tribunal Jalgaon, in Motor Accident Claim Petition No.137/1987. By this award, the appellant alongwith owner and driver is held liable jointly and severally to pay an amount of Rs.50,000/- towards compensation alongwith interest at the rate of 12% p.a. from the date of application, to the respondent no.1-claimant. 2] The respondent no.1 is the claimant before the Motor Accident Claims Tribunal and had filed M.A.C.P. No.137/1987 alleging that on 4 27/2/1987 he had gone to Jalgaon and had purchased one Jowar bag which he had placed in a truck bearing registration no.MHB 5833 and then started proceeding towards Varangaon in the same truck. The said truck was proceeding along the national high way at high speed and in a zig-zag manner. The applicant stated that he was sitting in the cabin of the said truck and after the truck crossed a distance of about 11 kms. from Jalgaon, it dashed against the auto-rickshaw No.MWD-9509 which came from opposite direction at a high speed and in a zig-zag manner. After giving dash, the truck proceeded ahead towards southern side of the road and dashed against the M.I.D.C.water pipe line. As a result of this accident, applicant claims that he sustained fracture of his right foot and Tibia of his right leg. He was moved to the civil hospital, Jalgaon where he received treatment as an indoor patient for about 4 months and thereafter, he received a treatment for about 1-½ month. In this background, the applicant filed claim petition claiming compensation of Rs.1 Lakh. The truck driver as well as the truck owner were also joined as respondents alongwith the owner of the auto-rickshaw. The appellant-insurance company was joined as a party, as the said truck was insured with the appellant company. United India Insurance Company was also joined as a respondent as the auto-rickshaw was insured with it. 3] The appellant insurance company filed its written statement and 5 denied the liability. The insurance company raised a plea that the truck driver was not holding a valid license on the date of occurrence of accident and that there was a breach of condition of policy. The claim for compensation was opposed by the appellant on the ground that it was a goods vehicle and the appellant was travelling in it as a gratuitous passenger or the passenger travelling by paying fare. The insurance policy did not cover such kind of insurance and hence the claim against the insurance company is liable to be dismissed. 4] The Tribunal did not consider both these contentions raised by the insurance company and passed an award holding the insurance company jointly and severally liable to pay the sum of Rs.50,000/- alongwith the truck owner, the auto-rickshaw owner and the other insurance company i.e. United India Insurance company. Being aggrieved by this, the present appeal has been preferred by the insurance company. 5] The learned counsel for the appellant relying on the judgment of Apex Court reported in (2001) ACJ 1565 Rameshkumar V/s National Insurance Company and in (1991) ACJ(1) Mallaba and others V/s Oriental Insurance Company Ltd., urged that the insurance company is not liable for the death or injuries sustained by the persons carried in the goods vehicle either alongwith their goods or after paying fare or gratuitously. It was a case where owner of the goods was travelling in a 6 goods vehicle and the Apex Court has held that the insurance company is not liable for the same. The learned counsel for claimants does not dispute the factual position in this case, as urged by the appellant and also does not dispute that the matter is covered by the judgments of Apex Court cited supra. Even otherwise I am also of the view that the controversy is no more res-integra. 6] The learned counsel for the claimant however, relied upon two judgments of this Court reported in (1) (2008) Vol-IV MLJ 351 United India Insurance Company Ltd. V/s Suryakantabai and (2) (2009) Vol-I M.L.J.830 New India Assurance Company Ltd. V/s Yuvraj. The learned counsel for the respondent claimant urged that the insurance company has deposited the amount of Rs.25,000/- in this Court towards their liability flowing from the award. The said amount has been withdrawn by the claimants. The learned counsel for the claimant therefore, submits that the course left open for the insurance company is to proceed against the owners to recover the said amount, even if it is presumed that there was a breach of condition and that the truck driver was not holding a valid license. 7] In view of above, the learned counsel for the appellant submits that the appellant be granted permission to recover the amount from the owners. 8] In view of the aforesaid position, the controversy involved in the 7 present case is covered by judgments cited by learned counsel for the appellant in support of his plea that the claimant was the owner of the goods and was travelling in a goods vehicle as a gratuitous passenger and in such a situation, the insurance company was not liable to make the payment. The appeal filed by the insurance company therefore, succeeds. The judgment and award dated 28/9/1993 passed in Motor Accident Claims Petition No.137/1987 is quashed and set aside only to the extent it holds the appellant insurance company liable jointly and severally liable to pay compensation of Rs.50,000/- with interest. The appellant is granted liberty to recover the amount which is deposited in this Court and withdrawn by the claimant, from the owners of the vehicles in accordance with law. 9] In the aforesaid terms, the Appeal is allowed. There shall however, be no order as to costs. [R.K.DESHPANDE] JUDGE umg/fa297-94