fa1954.09 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD FIRST APPEAL NO. 1954 OF 2009 The New India Assurance Company Ltd a Subsidiary of the General Insurance Corporation of India and a company incorporated under the Companies Act having one of its Divisional office at Adalat Road, Aurangabad Through its Senior Divisional Manager Shri Vishwas s/o Bansi Gaikwad Age 52 years, occ. service at The New India Assurance Co. D.O. No. 1 Adalat Road, Aurangabad .. APPELLANT VERSUS 1 Rohni wd/o Ramesh Perkar age 25 years, occ. household r/o Ajabnagar, Nutan colony Aurangabad. 2 Shivraj s/o Ramesh Perkar age 7 years, u/g Respondent no. 1. 3 Swaraj s/o Ramesh Perkar age 4 years, u/g Respondent no. 1. 4 Shakuntalabai w/o Ramesh Perkar age 50 years, occ. household r/o as above. 5 Shaikh Matin Shaikh Mogal ( Dismissed as per Court’s age 18 years, occ. driver order dt. 21-12-2010 ) r/o Babar Colony, Aurangabad. fa1954.09 2 6 Raiskhan Rashid Khan age major, occ. business r/o Kathar galli, Phulambri Dist. Aurangabad .. RESPONDENTS Mr. A.B. Kadethankar, advocate for the appellant. Mr. M.K. Deshpande, advocate for respondent no. 6. Mr. L.B. Sayyed, advocate for respondent nos. 1 to 4. Respondent no. 5 dismissed. ===== CORAM : R.M. BORDE, J. RESERVED ON : 06-06-2011 PRONOUNCED ON : 21-06-2011 ORAL JUDGMENT : 1 This appeal is presented by insurance company raising exception to the order passed below exh.5 in MACP no. 113/2008 decided by the Member, Motor Accident Claims Tribunal, Aurangabad on 21-4-2009. 2 While issuing notice on 19-10-2010, it was informed to the respondents that the appeal would be taken up for final disposal. Thus, the matter is taken up with the consent of the parties for final disposal at admission stage. 3 Heard arguments advanced by respective counsel for the parties as well as perused the relevant papers made available at the time of hearing fa1954.09 3 by the counsel representing respective parties. 4 Respondent nos. 1 to 4 / original claimants instituted claim petition under section 166 of the Motor Vehicles Act claiming compensation to the tune of Rs. 10,00,000/- on account of accidental death of Radhaji Perkar in an accident which took place on 18-12-2007 at about 6.30 to 7.00 hours at Aurangabad – Fulambri road near Pioneer company. Deceased was travelling in a black and yellow taxi bearing no. MH 20 AA 3458. It is the contention of the claimants that the taxi was being driven in high speed and in rash and negligent manner. Taxi gave dash to one truck bearing no. HR 38 M 8350. As a result of accident, deceased who was a passenger travelling in the taxi sustained serious injuries and died on the spot. Claimants also presented an application at exh. 5 claiming compensation amount of Rs.50,000/- under section 140 of the Motor Vehicles Act towards ‘no fault liability’. 5 The application was resisted by the insurer by filing written statement at exh. 15. Insurance company has claimed that the driver of the offending vehicle was not having a valid licence and as such there is breach of condition of policy as a result of which insurance company shall not be held fa1954.09 4 liable to pay the amount. It is also contended by insurer that at the time of accident, there were about more than 10 passengers being carried in the vehicle. As per the terms and conditions of the insurance, risk of passengers traveling in the vehicle is not covered. Relevant contentions can be found in paragraph nos. 11 and 12 of the written statement. Those are reproduced as below : 11 Without prejudice to the rights of this respondents and contentions raised in above mentioned paragraph it is submitted that, even otherwise present claim petition deserves to be dismissed against this respondent. It is to be noted that driver of Jeep No. Mh 20 AA 3458 namely Sk. Matin was admittedly not having any driving license to drive the said vehicle. It is to be noted that even he is prosecuted for the charges under the Motor Vehicle Act for non possession of motor driving license at the time of accident. It is further submitted that this respondent is not liable to pay any compensation to the claimant because the jeep was given in custody of such person who was not having valid and effective driving license to drive the said vehicle. This is in breach of mandatory policy condition and this respondent is not liable to indemnify the owner of the truck. 12 It is further submitted that even on another count also present claim petition deserves to be dismissed against this respondent. It is submitted that as per case of claimant, deceased Ramesh was occupant of jeep and said jeep was insured with this respondent. In this behalf it is submitted that, at the time of accident the vehicle was being carried with more than 10 passengers. It is to be noted that under the contract of insurance, risk of passengers traveling in the said vehicle is not covered. Hence even otherwise also present claim is not maintainable against this respondent and the same deserves to be dismissed against this respondent. fa1954.09 5 6 Learned Member of the Motor Accident Claims Tribunal, after hearing arguments and on perusal of record, held respondent nos. 1 to 3 i.e. owner of the vehicle, driver and insurance company, jointly and severally liable to pay an amount of Rs. 50,000/- towards ‘no fault liability’ alongwith 12% per annum interest. 7 Learned counsel appearing for the insurance company has criticised the order passed by the tribunal, contending that defence raised by the insurer has not at all been considered by the tribunal while passing the impugned order. My attention is invited to panchanama placed on record by the claimants wherein there is recital to the effect that the driver of the vehicle Sk. Matin was not possessing driving license at the relevant time. Driver of the vehicle as well as owner did not make any attempt to place on record the copy of driving license possessed by the driver. In these circumstances the tribunal ought to have accepted defence raised by the insurance company which contentions are supported by the recitals appearing in panchanama placed on record by claimants. 8 Appellant has placed reliance on a judgment in the matter of New India Assurance Company Ltd. vs. Mainabai and others being First Appeal fa1954.09 6 no. 1421/2009 decided on 24-11-2010. Learned Single Judge in identical situation has proceeded to accept the contentions raised by insurance company / appellant therein and allowed the appeal. Following the precedence in First Appeal no. 1421/2009, in my opinion, instant first appeal also deserves to be allowed. For the reasons recorded above, appeal presented by insurance company stands allowed. Order passed by the Member, Motor Accident Claims Tribunal, Aurangabad on 21-4-2009 holding the insurer / appellant herein liable to pay an amount of Rs. 50,000/- alongwith interest is quashed and set aside. It is however clarified that the claimants would be entitled to recover the amount from the owner of the vehicle. Insurance company / appellant herein would be entitled to withdraw the amount deposited in this court. In the facts and circumstances of the case, there shall be no order as to costs. 9 Pending civil application, if any, does not survive and stands disposed of. ( R. M. BORDE ) JUDGE dyb