1 fa1044 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO.1044 OF 1998 Anjanabai Tanaji Kastore & Anr. ...Appellants vs. Mohanlal Chunilal Shrishrimal & Ors ...Respondents Mr.Hardas a/w Mr.P.N.Joshi for the appellants Mr.S.M.Oak for the respondent no.1 CORAM : A.S.OKA,J. DATE : JULY 29, 2011 ORAL JUDGMENT: 1 The submissions were heard on the earlier date. The appellants are the claimants in a claim application under section 166 of the Motor Vehicles Act,1988 (hereinafter referred to as the said Act). The claim petition was filed by them for claiming compensation on account of death of one Tanaji in a motor accident. The case made out in the claim petition is that on 20 th May 1990, the deceased Tanaji had proceeded to Nashik for purchasing seeds of jute. After purchasing the seeds, he was waiting on Bombay Agra Road for transport. At that time, a truck owned by the first respondent which was driven by the second respondent came there. The second respondent charged Rs.10/- to the deceased and he allowed the deceased to travel by the truck along with the goods purchased by him. The truck met with an accident and the deceased lost his life in the accident. The claim was contested by the first and 2 fa1044 second respondents. The third respondent-insurer of the offending truck filed a written statement contending that the deceased was carried as a passenger for hire and reward and hence, the liability of such passengers was not required to be covered under the policy of the insurance. It was contended that the insured had committed breach of the terms and conditions of the policy. 2 The Tribunal held that the accident occurred due to rash and negligent driving of the truck by the the second respondent. The Tribunal further held that the third respondent was not liable to satisfy the Award made against the first respondent. The Tribunal passed the impugned Award in the sum of Rs. 1,09,000/- as against the respondent nos.1 and 2. 3 The challenge in the appeal is to the that part of the Award by which the third respondent was exonerated. There is a cross objection filed by the respondent nos.1 and 2 in which there is a challenge to the same part of the impugned Award. The learned Counsel for the appellants has taken the Court through the pleadings and notes of evidence. 4 The learned counsel for the appellants pointed out that the specific case of the appellants is that the deceased had hired a truck for carrying his goods and he was accompanying the goods. He pointed out specific averments made to that effect in the claim application. He invited the attention of the Court to the evidence of the first appellant and submitted that no importance can be given to the 3 fa1044 admission in cross examination of the first appellant. He submitted that the burden was on the third respondent to prove that the third respondent was not liable to satisfy the Award which is made against the respondent nos.1 and 2 and the said burden has not been discharged by the third respondent. 5 The learned counsel for the respondent nos.1 and 2 submitted that considering the case made out in the claim application as well as the examination-in- chief, the liability of the deceased was required to be covered under the policy in view of section 147 of the said Act. He submitted that the witness examined by the third respondent does not support the third respondent. The learned counsel for the appellants submitted that an order may be passed directing the third respondent to pay compensation amount and thereafter to recover the same from the respondent nos.1 and 2. 6 I have given careful consideration to the submissions. The first appellant-widow stepped into witness box. In paragraph 3 the first appellant stated thus : 3 On 28.5.90 as usual my husband went to Murambi for his work. With the permission of the owner, he went to Nashik to purchase of a jute. He purchased jute seed weighing one bag. He went to CIDCO on Bombay Agra Road with the bag of seed and waiter there for truck. One truck came which was going towards Bombay from Nashik. It halted. My husband boarded in the truck with the bag of jute seed. He was sitting in the body of 4 fa1044 the truck. He paid Rs.10/- for carrying the bag of jute seed our village warhead and he was traveling with the bag of jute seeds. There were other agriculturists traveling in the same truck with their goods like vegetables, grain etc. One Johnath Bale of Mundane was also traveling the same truck. He was traveling with the vegetable. His wife was also traveling with him in the same truck. The truck turned turtle near village Villon, on Agra Road... (underline added) 7 In the cross examination a suggestion was given by the Advocate for the respondent nos.1 and 2 to the widow of the deceased that the deceased was working as a Collie. In response to the said suggestion, she has stated thus : 6...It is also true that my husband had gone as a collie in the truck as the driver was intending to load sugar bags in it. The jute seed was kept at the house of one of my relatives at Ranenagar. At Ranenagar my husband asked to stop the truck and he brought the bag containing jute seed and boarded in the truck... (underline supplied) 8 Thus, the said case made out in the cross examination is completely contrary to the case made out in the examination-in-chief. The first appellant accepted that the deceased had gone as a coolie in the truck. Thus, the case made out in the claim application and in the examination-in- chief that the deceased had hired the truck for carrying his goods and that the deceased had paid a 5 fa1044 sum of Rs.10/- to the driver has been completely given up in the cross examination and the case made out is that the deceased was travelling as a coolie. Thus, the evidence of the first appellant as regards capacity in which the deceased was travelling by the truck cannot be believed. A submission was made that Mr.Ramesh Damodhar Dharmadhikari, Assistant Manager of New India Assurance Company (first respondent) deposed that premium for six coolies was paid. However, the case is made out in the cross examination that the deceased was travelling as a coolie is clearly an afterthought which cannot be accepted. 9 In the circumstances, the Tribunal was right in holding that the third respondent is not liable. In the present case, there is absolutely no doubt that the third respondent is not liable. Therefore, a discretionary order directing the third respondent to deposit and thereafter to recover the said amount from the respondent nos.1 and 2 cannot be passed in this Appeal. Accordingly, there is no merit in the Appeal and the same is dismissed with no order as to costs. 10 Cross Objection st.no.6409 of 2007 is dismissed with no order as to costs. JUDGE