1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO. 3144 OF 2008 New India Assurance Co. Ltd. - - Appellant Versus 1. Rashidkhan (Died) L.R.'s Khwanibegum R. Pathal & ors. - - Respondents WITH FIRST APPEAL NO. 3145 OF 2008 New India Assurance Co. Ltd. - - Appellant Versus 1. Rashidkhan (Died) L.R.'s Khwanibegum R. Pathal & ors. - - Respondents WITH FIRST APPEAL NO. 3146 OF 2008 New India Assurance Co. Ltd. - - Appellant Versus 1. Rashidkhan (Died) L.R.'s Khwanibegum R. Pathal & ors. - - Respondents 2 WITH FIRST APPEAL NO. 3147 OF 2008 New India Assurance Co. Ltd. - - Appellant Versus 1. Rashidkhan (Died) L.R.'s Khwanibegum R. Pathal & ors. - - Respondents WITH FIRST APPEAL NO. 3148 OF 2008 New India Assurance Co. Ltd. - - Appellant Versus 1. Rashidkhan (Died) L.R.'s Khwanibegum R. Pathal & ors. - - Respondents WITH FIRST APPEAL NO. 3149 OF 2008 New India Assurance Co. Ltd. - - Appellant Versus 1. Rashidkhan (Died) L.R.'s Khwanibegum R. Pathal & ors. - - Respondents 3 WITH FIRST APPEAL NO. 3150 OF 2008 New India Assurance Co. Ltd. - - Appellant Versus 1. Rashidkhan (Died) L.R.'s Khwanibegum R. Pathal & ors. - - Respondents WITH FIRST APPEAL NO. 3151 OF 2008 New India Assurance Co. Ltd. - - Appellant Versus 1. Rashidkhan (Died) L.R.'s Khwanibegum R. Pathal & ors. - - Respondents WITH FIRST APPEAL NO. 3152 OF 2008 New India Assurance Co. Ltd. - - Appellant Versus 1. Rashidkhan (Died) L.R.'s Khwanibegum R. Pathal & ors. - - Respondents WITH 4 FIRST APPEAL NO. 3153 OF 2008 New India Assurance Co. Ltd. - - Appellant Versus 1. Rashidkhan (Died) L.R.'s Khwanibegum R. Pathal & ors. - - Respondents Shri Dhananjay Deshpande, Advocate for the Appellant in all the matters Shri Vinod Patil, Advocate for the Respondent No. 1 (C)in all the matters. Shri V. B. Patil, Advocate for the Respondent No. 2 in all the matters. CORAM : K. U. CHANDIWAL, J. DATE : 16TH JUNE, 2009. PER COURT : 1. Heard both the counsel extensively. In an unfortunate accident on 26.10.2005 in a goods vehicle, when more than 10 to 15 labourers were traveling for picking up raw cotton from fields of agriculturists, toll of precious lives of 10 of such labourers was taken. The petition indicates that the deceased who are employed were not associated with the transport of the goods in the capacity as labour or representative of the owner of the goods, but they were labourers fared in the truck to collect raw cotton from the fields of different agriculturists. The claim petition itself disclose that since it was 10.30 in the night the field was 15 to 20 K. 5 M. away, it was under compulsion the labourers were perforced to travel in the truck which met with the accident. 2. The counsel for the insurance company has canvased that since the insurance policy itself was not covering risk of unauthorized traveler by the deceased, the liability cannot be saddled against the insurance company. 3. The counsel for the claimants contended, all these aspects cannot be gone indeed at the stage of deciding petition under Section 140 of the Motor Vehicles Act. According to the counsel, the primary inquiry, investigation in the matter by itself is sufficient to keep the liability of insurance company inforce. 4. The petition under Section 166 of Motor Vehicles Act in all these matters is pending ripe for evidence. It will not be a good scene to desect the evidence at this stage which may influence the learned member seized with the matters. 5. The counsel for insurance company has relied to the judgment reported in the matter of Yellwwa and others Vs. National Insurance Co. Ltd. and another 2007 AIR SCW 4590. The Hon'ble Apex Court were dealing with the controversy about filling of appeal in an application 6 under Section 140 of the Motor Vehicles Act and judgment of this Court was reversed. In paragraph No. 9, 10 and 11, the Hon'ble Lordships of the Apex Court have observed as under : "9. It is not in dispute that an award of the Tribunal is to be made in terms of Section 168 of the Act. For the said purpose, the Tribunal is required to issue a notice to the insurer and give the parties an opportunity of being heard. While making an award in terms of Section 168 of the Act, the procedure laid down under Section 166 of the Act are required to be complied with. The proviso appended to Section 168 of the Act, however, lays down that where such application makes a claim for compensation under Section 140 in respect of the death or permanent disablement of any person, such claim and any other claim (whether made in such application or otherwise) for compensation in respect of such death or permanent disablement shall be disposed of in accordance with the provisions of Chapter X of the Act. Section 140, as noticed hereinbefore, provides for no fault liability. It uses the words "accident arising out of the use of a motor vehicle", the owner of the vehicle and when more than two vehicles are involved, "the owners of the vehicles" shall jointly and severally, be liable to pay compensation. 10. The said provision, therefore, makes the owners of the vehicles liable but not the insurer per se. Irrespective of the fact whether a claim 7 petition is required to be adjudicated under Chapter X or Chapter XII of the Act, it is permissible to raise a defence in terms of sub- section (2) of Section 149 of the Act. Even it is possible for the owner of the vehicle to raise a contention that his vehicle being not involved in the accident, he is not liable to pay any amount in terms of Section 140 of the Act. 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 in to 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 not fault whatsoever in terms of sub-section (2) of Section 147 of the Act". 6. The above observations of the Apex Court, cannot be said to be restricted to the facts of said case as it is indicated what is the statutory composition. The claimants claim under Chapter X or Chapter XII of the Motor Vehicles Act needs to be entertained. In view of this settled position of Law, though a sorry state of affairs prevails, so far as claimants are concerned, since they have lost their nearer or dearer in the accident keeping them in lurch, still statutory position cannot be obliterated and defused. Apparently, the Insurance policy does not cover travel by the deceased, and the breach of policy is crystallized, insurance company is not liable to answer the award. Consequently the order under 8 challenge will not sustain. O R D E R The directions under Section 140 of Motor Vehicles Act in the orders under challenge to the extent of insurance company/appellant are set aside. No costs. The learned Judge seized with the matter will ensure expedite completion of trial as the accident took place on 25.10.2005 and the matter is languished since 2006. No costs. The statutory and subsequent deposits made by the insurance company/appellant be remitted. [ K. U. CHANDIWAL ] JUDGE bsb/June 09/FA 3144.08