{1} fa95211.odt IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO.952 OF 2011 1 Shamal w/o Kamlakar Kale, age: 30 years, Occ: Household; 2 Ajinkya s/o Kamlakar Kale, age: 13 years, Occ: Education, minor; 3 Mohini d/o Kamlakar Kale, age: 11 years, Occ: Education, Minor; 4 Aniket s/o Kamlakar Kale, age: 08 years, Occ: Education, minor; Applicants No.2 to 4 are minors and under guardianship of their mother – applicant no.1. 5 Sajjanbai w/o Manikrao Kale, age: 70 years, Occ: Nil; All R/o Borgaon Kale, Tq. & District Latur. Appellants Versus 1 Maruti s/o Laxuman Gaikwad, died, through legal heirs: 1A Smt.Bheemabai w/o Maruti Gaikwad, age: 36 years, Occ: Household, R/o Borgaon (Bk), Tq. & Dist.Latur. 2 National Insurance Company Ltd., through its Branch Manager, {2} fa95211.odt Branch Office, Hanuman Chowk, Main Road, Latur. 3 Sampatbhai Laxmuanbhai Gojiya ) R.Nos.3 & 4 deleted vide ) Court’s order dated 4 Branch Manager, ) 29.04.2011. New India Assurance Company Ltd., ) through its Branch Manager, ) in front of Shahu College, Latur. ) Respondents Mr. R.B. Deshpande, advocate for the appellants. Mr. S.V.Kulkarni, advocate for respondent no.2. CORAM : R.M.BORDE, J. DATE : 11th August, 2011 JUDGMENT: 1 Heard learned Counsel for respective parties. Appeal is admitted and taken up forthwith for final disposal by consent of learned Counsel for respective parties. 2 Appellants – original claimants are taking exception to the judgment and award dated 13.11.2009, passed by Motor Accident Claims Tribunal, Latur in M.A.C.P. No.360/2006. 3 The challenge in the appeal is restricted only so far as decision of the Tribunal holding Respondent No.2 – Insurance Company liable to reimburse the claim to the extent of Rs.1,00,000/- only out of the total claim compensation amount of Rs.4,28,010/- granted against the owner and insurer of the Indica Car covering liability to the extent of 60% of the total claim amount. 4 Claimant no.1 is widow, claimants no.2 to 4 are children {3} fa95211.odt and claimant no.5 is the mother of deceased Kamlakar Manikrao Kale. Deceased Kamlakar was travelling in India Car on 05.12.2005 along with other co-travellers and were proceeding towards Osmanabad from Borgaon (Kale). According to the claimants, as a result of rash and negligent driving of the Car by driver Maroti Gaikwad, who also succumbed to the injuries sustained in the accident, mishap taken place. The Indica Car gave dash to truck bearing No.GJ-10-V-9963. As a result of impact, deceased Kamlkar was thrown away out of the said car and died on the spot. Deceased was aged about 32 years and was earning Rs.2,00,000/- p.a. out of the business of dealing in fertilizers. Claimants claimed compensation to the tune of Rs.25,00,000/-. 5 Respondent No.1-A is the owner of the vehicle i.e. India Car and Respondent No.2 is the insurer of the Indica Car. Respondent No.3 is owner of the truck and Respondent No.4 is the insurer of the truck. 6 Considering the evidence led by the respective parties, the tribunal, allowed the claim petition partly and saddled liability in respect of payment of Rs.4,28,010/- on Respondents No.1A and 2 – owner and insurer of Indica Car, whereas, Respondents No.3 and 4 were held liable jointly and severally to pay compensation to the tune of Rs.2,85,340/- along with interest @ 7.5% p.a. from the date of presentation of petition till realisation of the amount. Respondent No.1A is held liable to pay compensation to the tune of Rs.3,28,010/-, whereas, Respondent No.2 is held liable to contribute a sum of Rs.1,00,000/- inclusive of no fault liability amount already paid. 7 The only objection raised in the appeal is in respect of {4} fa95211.odt exonerating the Insurance Company from its liability in reimbursing the claim in its totality. The Tribunal held Respondent No.2 – Insurance Company liable only to contribute a sum of Rs.1,00,000/- out of the total liability amounting to Rs.4,28,010/- saddled against Respondents No.1-A and 2 jointly. 8 According to the claimants, since the policy drawn by Respondent No.1 was comprehensive / package policy, under the terms and conditions of the policy, the Insurance Company is liable to compensate to the extent of full on account of death of the victim. 9 The Insurance Company has taken a stand that liability of the Insurance Company is limited to the extent of Rs.1,00,000/- as additional premium of Rs.200/- is paid covering liability of four unnamed passengers. 10 The issue as to whether under comprehensive / package policy, insurance company is liable to compensate for death or injuries of a pillion rider on two wheeler or occupant of a private car had fallen for consideration in First Appeal No.2057/2010 decided by this Court (Coram: R.M.Borde, J.) on 11.08.2011. It is held by this Court that the liability of the Insurance Company under comprehensive / package policy to compensate in the event of occurrence of death or sustaining injuries by pillion rider on two wheeler or occupant in a private car is unlimited and the Insurance Company cannot be exonerated from compensating the loss occurred on account of death of pillion rider on two wheeler or occupant in a private car. {5} fa95211.odt 11 For the reasons recorded in the judgment delivered by this Court in First Appeal No.2057/2010, decided on 11.08.2011, instant appeal also deserves to be allowed and same is accordingly allowed. Respondent No.2 – Insurance Company is held liable to pay jointly and severally the amount of compensation awarded as against Respondents No.1-A and 2 amounting to Rs.4,28,010/-(inclusive of amount of Rs. 50,000/- paid towards no fault liability) along with interest @ 7.5% p.a. from the date of presentation of the claim petition till realisation of the amount. The decision rendered by the Tribunal holding Respondent No.2 – Insurance Company liable only in respect of sum of Rs.1,00,000/-, is quashed and set aside and instead, it is directed Respondents No.1A and 2 are held jointly and severally liable to pay compensation to the tune of Rs.4,28,010/- (inclusive of Rs.50,000/- paid towards no fault liability) along with interest @ 7.5% p.a. from the date of presentation of claim petition till realisation of the amount. 12 Appeal accordingly stands allowed to the extent specified above. In the facts and circumstances of this case, there shall be no order as to costs. Pending Civil Application, if any, does not survive and stand disposed of. R.M.BORDE JUDGE adb/fa95211