fa281.11 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD FIRST APPEAL NO. 281 OF 2011 Bajaj Allianz General Insurance Co. Ltd. GE Plaza, Airport Road, Yerwada Pune Through its Branch Manager 2 nd Floor, Rajendra Bhavan Adalat Road, Aurangabad 431 001 .. APPELLANT VERSUS 1. Bandu s/o Manohar Raiphale age 28 years, occ. nil. r/o Rokdsavargaon, Tq. Ahmedpur Dist. Latur. 2. Musa s/o Mahmad Shaikh age 24 years, occ. driver r/o Rokdsavargaon, Tq. ahmedpur Dist. Latur. 3. Mohan s/o Baswantrao Ghote (Patil) age 55 years, occ. business & agril. r/o as above. .. RESPONDENTS Mr. S.G. Chapalgaonkar, advocate for the appellant. Mr. N.G. Kale, advocate for respondent No. 1. ===== CORAM : A.V. POTDAR DATE : 14 th DECEMBER, 2011 ORAL JUDGMENT : 1. This appeal is directed against the order passed on application at fa281.11 2 Exh. 5 filed under section 140 of the Motor Vehicles Act by respondent No. 1 against respondent Nos. 2 and 3 and the present appellant who is arrayed as respondent No. 3 in the application, which came to be allowed by order dated 29-10-2010. 2. Heard. Respondent Nos. 2 and 3 absent though duly served. 3. Admit. Heard finally by consent. 4. Upon hearing respective parties to this appeal, it is not in dispute that respondent No. 1 herein has filed Motor Accident Claim Petition No. 82/2010 before the Motor Accident Claims Tribunal, Udgir wherein he has filed application under section 140 of the Motor Vehicles Act for compensation for ‘No Fault Liability’ for the alleged accident. It is pleaded by applicant / respondent No. 1 herein in his application that on the given date and time, he was working as a labour on the tractor bearing No. MH-24-D-4204 which was driven by respondent No. 2 herein, owned by respondent No. 3 herein and insured with present appellant. When the tractor reached at Bhutkerwadi Storage Tank, after filling the trolley with soil, the tractor and trolley turned turtle due to high speed and negligent driving by respondent fa281.11 3 No. 2. During the alleged accident, respondent No. 1 fell down and sustained various injuries as explained in the medical certificate. Hence, application under section 140 of the Motor Vehicles Act came to be filed for compensation under ‘No Fault Liability’. 5. During the course of submissions it is urged that no doubt from perusal of order it appears that no say / written statement was filed by present appellant to the application moved by respondent No. 1 before the Court below, still defence available under the provisions of Motor Vehicles Act can be taken by the insurance company to oppose the claim. It is urged that by virtue of ratio laid down in the matter of Yellwwa (Smt.) and others Vs. National insurance Co. Ltd. and another reported in 2007(4) Mh.L.J. 543, appeal under section 173 of the Motor Vehicles Act questioning the legality and correctness of the order passed under section 140 of the Act is tenable. In view of the observations of the Apex Court in the matter of United India Insurance Co. ltd. vs. Sarjerao and others reported in AIR 2008 Supreme Court 460(1), there is no liability of the insurance company if the labouers are travelling in the tractor which meets with accident and the insurance cover note has not covered that liability. Per contra, learned counsel for fa281.11 4 respondent No. 1 / original claimant supports the order impugned in this appeal. 6. Upon hearing rival submissions for respective parties, following points arise for consideration : 1. Whether the learned Motor Accident Claims Tribunal is right in holding that insurance company is liable to pay under ‘No Fault Liability’ to the claimant as claimed ? 2. If the finding to be recorded on point No. 1 is in the negative, then what is the final order ? 7. Upon hearing submissions across the bar, one fact is clear that no say / written statement is filed by present appellant to the application filed under section 140 of the Motor Vehicles Act. Second question requiring consideration in the light of admitted position is that if there is no say cum written statement filed by the appellant opposing the application filed by respondent / original claimant before the court below, then what is the basis on which the application is decided. 8. In paragraph no. 1 of the petition after particulars of the accident are mentioned, pleadings to the effect that on the given date, time and place unfortunate accident occurred in which claimant sustained injuries resulting fa281.11 5 in permanent disability, are to be accepted. It is pleaded in paragraph No. 1 of the petition that on 16-4-2010 at about 6.00 p.m., claimant was working as a labourer on the tractor bearing No. MH-24-D-4204. When that tractor came near Bhutekarwadi storage tank, while proceeding towards land of Mohan Patil, due to rash and negligent driving of the driver of the vehicle, the tractor and trolley turned turtle and claimant sustained injuries. Thus, it is clear from the facts pleaded in the petition itself that at the material time, claimant was travelling in the troctor and trolley in the capacity as labourer. 9. At this juncture it is necessary to advert to the observations of the Supreme Court in the matter of Yellwwa (Smt.) and others vs. National Insurance Co. Ltd. and another reported in 2007(4) Mh.L.J. 543, which read as under : 11. One of the defences available to the insurer is breach of conditions specified in the policy. When such a defence is raised, the Tribunal is required to go into the said question. Section 140 of the Act does not contemplate that an insurance company shall also be liable to deposit the amount while it has no fault whatsoever in terms of sub-section (2) of section 147 of the Act. 10. During the submissions across the bar, attention is drawn towards the copy of the insurance policy which was matter of record before the lower fa281.11 6 Court which shows that the capacity of the insured vehicle is one which is meant for driver of the vehicle. Description about the registration number and make of the vehicle indicates that the vehicle involved in the accident is the vehicle owned by respondent No.3 to this appeal. On perusal of the insurance policy one fact is clear that the liability of the labourer travelling either in the tractor or trolley is not covered under the insurance policy. In these circumstances, it is necessary to quote further observations of the Apex Court in the matter of Yellwwa (Smt.) vs. National Insurance Company ( cited supra) who read as follows : 16. The question which is required to be considered is what would be the meaning of the term ‘award’ when such a contention is raised. Although in a given situation having regard to the liability of the owner of the vehicle, a Claim Tribunal need not go into the question as to whether the owner of the vehicle in question was at fault or not, but determination of the liability of the insurance company, in our opinion, stands on a different footing. When a statutory liability has been imposed upon the owner, in our opinion, the same cannot extend the liability of an insurer to indemnify the owner, although in terms of the insurance policy or under the Act, it would not be liable therefore. . This observation is required to be considered in the light of terms of the insurance policy in this matter which covers only benefit of insurance of one person who is working / travelling in the vehicle. fa281.11 7 11. At this juncture, it would be further useful to refer to the observations of the Apex Court in the matter of United India Insurance Co. Ltd. Vs. Sarjerao and others ( cited supra) wherein in paragraph No. 8 of the judgment it is observed thus : 8. So far as the question of liability regarding labourers travelling in trollies is concerned, the matter was considered by this Court in Oriental Insurance Company Ltd. v. Brij Moha and Ors. (2007 (7) SCALE 754) and it was held that the Insurance Company has no liability. In view of the aforesaid two decisions of this Court, we set aside the impugned order in each case and remit the matters to the High Court to consider the matters afresh in the light of what has been stated by this Court in Smt. Yellwwas case (supra) and Brij Mohans case (supra). . Thus, it is clear that the insurance company has no liability towards the labourers travelling in the tractor / trolley as contemplated under section 147 of the Motor Vehicles At. Considering this aspect, learned Member of the Motor Accident Claims Tribunal has committed an error holding that the insurance company is jointly and severally liable with the owner to pay compensation towards ‘No Fault Liability’ to respondent No. 1. 12. In addition to this, perusal of charge sheet in which section 181 of the fa281.11 8 Motor Vehicles act is also added alongwith other sections of Indian Penal Code clearly indicates that at the time of occurrence of the accident, driver of the vehicle was not holding valid driving licence to drive the vehicle involved in the accident. If at the material time of occurrence of the accident, driver of the vehicle driving the vehicle without holding valid driving licence, then it also amounts to breach of condition of the policy under which the vehicle is insured with the insurance company. On this count also, insurance company cannot be held liable to pay compensation under section 140 of the Motor Vehicles Act. 13. Thus, in this background, it is to be held that the learned Member, Motor Accident Claims Tribunal has committed an error in holding insurance company jointly and severally liable alongwith the owner of the vehicle to pay compensation towards ‘No Fault Liability’. Hence finding to be recorded on point No. 1 in the negative. 14. Finding on Point No. 2 :- In view of finding is recorded on point No. 1 in the negative, order impugned is liable to be quashed and set aside against the appellant. Hence order is quashed and set aside with the following order : fa281.11 9 ORDER . Appeal is allowed. . Order impugned in the appeal is hereby quashed and set aside to the extent of the present appellant only. Appeal stands disposed of accordingly. No order as to costs. . As the appeal itself stands disposed of, pending civil application does not survive and stands disposed of. . The amount deposited by the appellant in this Court be refunded to the appellant. ( A.V. POTDAR ) JUDGE dyb