1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD FIRST APPEAL NO.3659 OF 2008 Office notes, office Memoranda of Coram, Appearances, Court s’ Orders or directions and Court’s or Judge’s Order Registrar s Orders.. ’ Mr.AB Gatne, Adv. For Appellant; Mr.RR Mantri,Adv. For Resp.No.1; Mr.VP Raje, Adv.h/for Mr. C.R. Deshpande, Advocate for Resp.No.2 ----- CORAM : K.U. CHANDIWAL, J. DATED : 17th JUNE, 2009 --- P.C.:- 1) Heard learned Counsel for the respective parties. 2) The insurance company feels aggrieved by the award of compensation in the case of injured travelling in an auto rickshaw having suffered due to jerk given by offending motorcycle, whereby the learned Judge noticed that there was 60% permanent disablement and the liability was jointly fixed to the owner of the auto rickshaw and that of the insurance company. 3) The Counsel for the insurance company has invited my attention to the very policy, under 2 which the auto rickshaw was covered and he was justified when he submits that the passenger, travelling in a private vehicle, as has happened in the matter at hand, was not covered either as contractual coverage or statutory coverage. The Counsel informs that the employee of the vehicle, i.e. The driver, is covered, however, there is no such eventuality with the driver, but the claimant was a passenger in private vehicle. 4) The Counsel for the insurance company placed reliance to the Judgment in the matter of Dr.T.V.Jose Vs. Chacko P.M.alias Thankachan and Ors., - A.I.R. 2001 SC 3939, and also the latest judgment in the matter of New India Assurance Company Vs. Sadanand Mukhi (2009) 2 SCC 417). 5) The law on the liability of the insurance company is well settled, apparently the insurance policy for the auto rickshaw, in which the claimant was travelling, did not bring into its sweep, the liability of the insurance company to indemnify the claimant. Other evidence about the permanent 3 disablement to the extent of 60% or the medical expenses incurred by the victim or the future losses calculated by the learned Judge need not be discussed, as the point is to fixing the liability of the insurance company. In view of the settled position of law, the learned Judge erred in fixing the liability to the insurance company, directing it to pay the amount to the claimant Hence, order - 6) The appeal is allowed. The Award against the insurance company is set aside. It will proceed against the original respondent no.1 – Rohidas. No costs. 7) The statutory deposit and subsequent deposit made by the insurance company be remitted. CA for stay disposed of. (K.U. CHANDIWAL) JUDGE agp/bdv/fa3659.08