1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO. 660 OF 1992 WITH CIVIL APPLICATION NO.1868 OF 1994 United India Insurance Co. Ltd. Bombay through Divisional Manager, Divisional Office No.4, Mercantile bank Chamber, 19, Cavasji Patel Street, Post Box 1304, Bombay. ...APPELLANT. (Respondent) VERSUS 1) Sundrabai W/o Keshav Somwanshi, age : 27 years Occup. : Household, R/o Karajgaon, Tq. Ausa, Dist. Latur. 2) Himmat S/o Keshav Somwanshi, Age :7 years, 3) Ram S/o Keshav Somwanshi, Age :5 years, 4) Laxman S/o Keshav Somwanshi, Age : 5 years, 5) Gorobakaka S/o Keshav Somwanshi, Age : 1 Years. All Minors U/g of their real mother Claimant No.1. ... Ori.Claimants. 6) Atiulla Buddutruk,Age 30 Years, Driver, Deleted. 2 7) Nizamuddin Abdul Aziz, Age: 52 years, Occup :Business R/o 707/I Jasmine Apartment, Dockyard Road, Bombay, (Dismissed). 8) Shabir Ahmed Wasiuddin Khan, Driver (Deleted) ..Ori.Opponent No. 1to3 ...RESPONDENTS. WITH FIRST APPEAL NO. 661 OF 1992 WITH CIVIL APPLICATION NO.1871 OF 1994 United India Insurance Co. Ltd. Bombay through Divisional Manager, Divisional Office No.4, Mercantile bank Chamber, 19, Cavasji Patel Street, Post Box 1304, Bombay. ...APPELLANT. (Ori. Respondent) VERSUS 1) Gopal S/o Govinda Kare, age : 27 years Occup. : Agril., R/o Karajkheda, Tq. Ausa, Dist. Latur. ... Ori.Claimant. 2) Atiulla Buddutruk,Age 30 Years, Driver, ( Deleted) 3) Nizamuddin Abdul Aziz, Age: 52 years Occup.:Business R/o 707/I Jasmine Apartment, Dockyard Road, Bombay, (Dismissed) 4) Shabir Ahmed Wasiuddin Khan, Driver (Deleted) ..Ori.Opponent No. 1to3 ...RESPONDENTS. 3 WITH FIRST APPEAL NO. 662 OF 1992 WITH CIVIL APPLICATION NO.1872 OF 1994 United India Insurance Co. Ltd. Bombay through Divisional Manager, Divisional Office No.4, Mercantile bank Chamber, 19, Cavasji Patel Street, Post Box 1304, Bombay. ...APPELLANT. (Respondent) VERSUS 1) Chhayabai W/o Arjun Somwanshi, age : 25 years Occup. : Household, R/o Karajgaon, Tq. Ausa, Dist. Latur. 2) Shivaji S/o Arjun Somwanshi, Age : 2 Years. Minors U/g Chhayabai Claimant No.1. ... Ori. Claimants. 3) Atiulla Buddutruk,Age 30 Years, Driver, (Deleted). 4) Nizamuddin Abdul Aziz, Age: 52 Years, Occup.:Business R/o 707/I Jasmine Apartment, Dockyard Road, Bombay, (Dismissed). 5) Shabir Ahmed Wasiuddin Khan, Driver (Deleted) ..Ori.Opponent No. 1to3 ...RESPONDENTS. WITH FIRST APPEAL NO. 663 OF 1992 4 WITH CIVIL APPLICATION NO.1870 OF 1994 United India Insurance Co. Ltd. Bombay through Divisional Manager, Divisional Office No.4, Mercantile bank Chamber, 19, Cavasji Patel Street, Post Box 1304, Bombay. ...APPELLANT. (Respondent) VERSUS 1) Nagnath Ganpati Mograge, age : 30 years Occup. : Agril., R/o Karajgaon, Tq. Ausa, Dist. Latur. ... Ori. Claimant. 2) Atulla Buddutruk,Age 30 Years, Driver, (Deleted). 3) Nizamuddin Abdul Aziz, Age: 52 Years, Occup.:Business R/o 407/7 Jasmine Apartment, Dockyard Road, Bombay, (Dismissed). 4) Shabir Ahmed Wasiuddin Khan, Driver (Deleted) ..Ori.Opponent No. 1to3 ...RESPONDENTS. WITH FIRST APPEAL NO. 664 OF 1992 United India Insurance Co. Ltd. Bombay through Divisional Manager, Divisional Office No.4, Mercantile bank Chamber, 19, Chavasji Patel Street, Post Box 1304, Bombay. ...APPELLANT. (Respondent) VERSUS 5 1) Yadav Govinda Kare, age : 30 years Occup. : Agril., R/o Karajgaon, Tq. Ausa, Dist. Latur. ... Ori. Claimant. 2) Atiulla Buddutruk,Age 30 Years, Driver, (Deleted). 3) Nizamuddin Abdul Aziz, Age: 52 Years, Occup.:Business R/o 707/I Jasmine Apartment, Dockyard Road, Bombay, (Dismissed). 4) Shabir Ahmed Wasiuddin Khan, Driver (Deleted) ..Ori.Opponent No. 1to3 ...RESPONDENTS. WITH FIRST APPEAL NO. 665 OF 1992 United India Insurance Co. Ltd. Bombay through Divisional Manager, Divisional Office No.4, Mercantile bank Chamber, 19, Chavasji Patel Street, Post Box 1304, Bombay. ...APPELLANT. (Respondent) VERSUS 1) Limbabai w/o Tulsiram Satpute, age : 28 years Occup. : Household, R/o Karajgaon, Tq. Ausa, Dist. Latur. 2) Kavita Tulsiram Satpute, Age: 9 years, 3) Savita Tulsiram Satpute, Age: 7 years, 6 4) Radhyesham Tulsiram Satpute, Age: 5 years, 5) Sakharam Tulshiram Satpute, Age : 2 Years. Minors U/g Limbabai- Claimant No.1. ... Ori. Claimants. 6) Atiulla Buddutruk,Age 30 Years, Driver, (Deleted). 7) Nizamuddin Abdul Aziz, Age: 52 Years, Occup.:Business R/o 707/I Jasmine Apartment, Dockyard Road, Bombay, (Dismissed). 8) Shabir Ahmed Wasiuddin Khan, Driver (Deleted) ..Ori.Opponent No. 1to3 ...RESPONDENTS. ... Mr. D.V. Soman, Advocate for appellant. Mr. V.G.Mete, Advocate for respondents-Original Claimants (Absent). ... CORAM: K.K. TATED, J. DATE : 16TH NOVEMBER, 2010 ORAL JUDGMENT : 1. All these First Appeals can be disposed of finally by the Common Judgment, as the facts and question of law involved are common. 7 2. Yesterday, on 15-11-2010 when the matters were called out for final hearing, no one appeared on behalf of the respondents - original claimants. Therefore, the matters are kept today for final hearing. 3. All these appeals were filed by the original respondent - United India Insurance Company Limited against the common judgment and award dated 23-04-1992 passed by the Member, Motor Accident Claims Tribunal, Osmanabad. 4. The accident took place on 04-01-1988 at about 3-00 a.m. at Yeli, Taluka Omerga, District Osmanabad, on National Highway No.9, in which three persons were injured and three persons were dead. The legal heirs of the deceased and injured persons filed Motor Accident Claims Petitions before the Motor Accident Claims Tribunal at Osmanabad for claiming compensation under Section 110-A of the Motor Vehicles Act. The original 8 claimants in the Claim Petitions stated that the deceased and injured persons had been to village Adnoor Taluka Tuljapur District Osmanabad for attending Khandoba Fair. When they were returning from the fair on 04-01-1988, they started their journey in Truck No. MTT-8281. The said truck was proceeding from Solapur side to Hyderabad side Via village Adnoor. At that time, the accident took place with truck No. APT - 1413 which was halted on the side of the road i.e. towards eastern side and the said truck was loaded with iron bars. 5. In the said petitions, Insurance Company filed their Written Statements and raised objection that the deceased persons and injured persons were unauthorised passengers in the truck and therefore, they are not entitled to any compensation. The Insurance Company also applied to review the claim petitions on all issues on 20-04-1991. The Tribunal allowed the claim petitions preferred by the respondents - original 9 claimants and awarded the compensation. 6. The learned Counsel appearing on behalf of the appellants-Insurance Company submits that the Insurance Company was not responsible to make compensation to the original claimants because they breached the terms and conditions of the Insurance Company. He submits that the deceased persons and the injured persons were travelling in a Goods Vehicle. These facts are admitted by the original claimants in their claim petitions itself. He placed reliance on the following two judgments of the Apex Court. (1) National Insurance Co. Ltd. vs. Rattani and others reported in 2009 ACJ 925. (2) National Insurance Co. Ltd. vs. Cholleti Bharatamma & Ors. reported in 2007 DGLS (Soft.)1092. He further submits that he is advancing his 10 argument on the merits of the matter and not on the quantum of the compensation awarded by the Tribunal. 7. I heard the learned Counsel appearing on behalf of the appellants and also gone through the Record and Proceedings. It is admitted fact that the original claimants as well as the deceased persons were travelling in the Goods Truck. In the Claim Petitions filed before the Tribunal, the Insurance Company filed their Written Statements and raised same objection. The trial Court, while considering these facts, held that the claimants were not travelling in Goods Truck alongwith their goods. These findings were recorded by the trial Court in Para-13. This cannot be correct finding on the facts and circumstances of the present case because in the claim petitions, the claimants themselves stated that at the time of returning from fair, they boarded in goods truck. If it is the case of the claimants themselves that they were travelling in a goods truck then in any case, 11 the Insurance Company is not liable to pay the compensation. The Apex Court in the matter of National Insurance Co. Ltd. (supra) held that the Insurance Company is not liable for the death or injury sustained to the gratuitous passenger travelling in a goods carriage. Head Note-A reads thus : "A. Motor Vehicles Act - Section 147 - Compensation - Death of gratuitous passenger - Liability of insurance company - Act does not contemplate that a good carriage shall carry a large number of passengers with small percentage of goods - Insurance policy covers the death or injuries either of the owner of the goods or his authorized representative - Insurance Company not liable for the death or the injuries sustained to the gratuitous passenger travelling on a goods carriage." 12 . In similar way, the Apex Court in the matter of National Insurance Co. Ltd., (supra), held that where the victims of the accident are travelling in a truck as gratuitous passengers, the Insurance Company is not liable to pay the compensation. Head Note-A reads as under : "A. Motor Vehicles Act, 1988, section 147(1) - Motor insurance - Goods vehicle - Gratuitous passenger - Liability of insurance company - Truck carrying 30-40 persons turned turtle and some passengers sustained injuries and two of them succumbed to their injuries-Contention that deceased and injured were travelling in the truck as members of marriage party-No mention in F.I.R. that dowry articles were loaded in the vehicle-Claimants deposed that these persons were travelling in the vehicle as representatives of owner of goods-30-40 persons 13 could not have been representatives of owner of gift articles from bride side, if any, in the vehicle-Whether victims of the accident were travelling in the truck as gratuitous passengers and insurance company is exempted from liability-Held : yes." 8. As the appellants satisfactorily proved that the injured claimants and the deceased persons were travelling in goods truck, they are not responsible to make the payment of compensation. In view of the above mentioned facts and circumstances, I hold that the Insurance Company is not responsible to make the payment of compensation to the original claimants as per the judgment and award dated 23-04-1992 passed by the Member, Motor Accident Claims Tribunal, Osmanabad. 9. The appeals are allowed to the extent of the appellants - Insurance Company only. 14 10. The appellants are entitled to withdraw the amount deposited by them, if any, in this Court alongwith interest. 11. No order as to costs. 12. In the light of the above, nothing survives for consideration in the Civil Applications, the same are disposed of accordingly. sd/- [K.K. TATED, J.] sut/NOV10/fa660.92