1 FH fa.488.95 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 488 OF 1995 Ravindra Malkayya Shinde and ors. ... Appellants Vs. Smt. Shantabai Mahalu Tambe and ors. ... Respondents -------- Mr. Nitin Mule for the Appellants. Mr. D.R.Mahadik i/b S.R.Singh for Respondent No.6. -------- CORAM : A.S.OKA, J. DATE : 21 st December, 2010. JUDGMENT: 1 By this appeal, exception has been taken to the judgment and award dated 30 th November, 1994 passed by the learned Member of the Motor Accident Claims Tribunal in a claim petition filed under the provisions of Motor Vehicles Act, 1939 (hereinafter referred to as “the said Act of 1939”). 2 With a view to appreciate the submissions made by the learned counsel appearing for the Appellants, a brief reference to the facts of the case is necessary. The 1 st to 4 th respondents are the original claimants. They are widow and children of deceased Mahalu Bhimaji Tambe, who died in a mother accident. The case made out in the claim 2 FH fa.488.95 petition is that on 19 th September, 1994, the deceased was proceeding from his native place Warude towards Talegaon Dhamdhere. At this time, he saw a truck, which was carrying toddy. The deceased raised his hand for stopping the said truck. According to the case of the claimants, the 1 st opponent to the claim petition (1 st Appellant) who was driving the truck, stopped the truck and permitted the deceased to sit in the truck. It is alleged that as the deceased was trying to get into the truck from the cleaner’s side, the 1 st opponent suddenly started the truck. As a result, the deceased fell down and was crushed under the wheels of the truck. The 2 nd Appellant is the 2 nd opponent to the claim petition, who was the owner of the truck on the date of the accident. 3 According to the case of the claimants, at a relevant time, the truck was insured with the 3 rd opponent in the claim petition (6 th respondent herein). The claim petition was contested by the 1 st and 2 nd Appellants by filing their separate written statements. It is stated that when he stopped the truck, the 1 st appellant found that the deceased was under the influence of alcohol. Therefore, he did not allow the deceased to enter into the truck. It is alleged that the deceased tried to enter the truck from the cleaner’s side and in that process, he fell down. The insurer of the truck filed a written statement contending that the deceased was boarding the truck in question and as such he was an unauthorized passenger. It was contended that the insurer is not required to cover the risk of unauthorized passengers. 3 FH fa.488.95 4 The Tribunal held that the accident occurred due to rash and negligence driving of the truck of the 1 st appellant. The Tribunal observed that the policy of the insurance did not cover the liability of the persons mounting or alighting the truck. The Tribunal held that the insurer was not liable to indemnify the insured in such a case. The Tribunal proceeded to grant a compensation of Rs.75,000/- with interest at the rate of 12% per annum from the date of filing of the claim petition till realization. 5 The learned counsel appearing for the Appellants submitted that on plain reading of the case made out in the claim petition, it is apparent that the accident occurred when the deceased had not even entered the truck. He submitted that the evidence brought on record to show that the 1 st appellant declined to allow the entry of the deceased into the truck. He pointed out that evidence on record shows that it was the deceased who tried to climb into the truck from the cleaner’s side when he truck was in motion and therefore, the entire negligence was of the deceased. He submitted that in any event, when the accident occurred, the deceased had not entered into the truck and he was trying to climb into the truck. He submitted that the deceased cannot be treated as passenger in the truck and he will have to be treated as a third party. He submitted that the insurer could not have been exonerated by the Tribunal. 4 FH fa.488.95 6 None appears for the original claimants. The learned counsel appearing for the 6 th respondent, who is the insurer of the truck invited attention of the Court to the terms and conditions of the policy of the insurance and in particular sub-clause (c) of clause 1 of Section (II) thereof. He submitted that even under Section 95 of the said Act of 1939, it is provided that the insurer is not required to cover liability of a person entering, mounting or alighting from motor vehicle. He submitted that in the circumstances, the 6 th respondent was not required to indemnify the insured of such liability. He submitted that the Tribunal was therefore, right in coming to the conclusion that the 6 th respondent was not liable. 7 I have given careful consideration to the submissions. I have perused the notes and evidence and other records. The first question is regarding negligence of the 1 st appellant. The 2 nd witness examined by the claimants is one Aburao Jedhe Patil. He claims to be an eye witness of the accident. In his deposition, his version of the accident reads thus: “The land is two furlongs from Ganegaon & two kile meters from Warude. The road is Ganegaon-Warude. Mahalu was going towards Ganegaon side on foot. One truck of toddy came from the side of Warude. It was bearing number 2790. Mahalu signaled it to stop by raising his land. The truck halted. When Mahalu was getting into the truck, the driver started it. Mahalu fell down & came under the rear wheel of the truck. I was at a distance of 150 feet.” 5 FH fa.488.95 8 In the cross-examination he admitted that he did not hear the conversation between the driver of the truck and the deceased. The 1 st appellant steps into the witness box. He stated that the deceased was standing and he showed his hand and therefore, he halted the truck. He told the deceased that there was no accommodation. In the cross- examination, he admitted that he was no aware whether the deceased had consumed liquor. He stated that he has not stated in the written statement that he was knowing the deceased. In the cross-examination the witness stated thus: “I have report in police station. I had stated in it that I started the truck on the assumption that Mahalu had sit in the truck. It is not true to say that I was rash & negligent.” 9 What is stated above, clearly damages the case of the 1 st appellant. If he was under impression that the deceased had taken a seat in truck, it was his duty to verify before restarting the truck that the deceased had infact taken a seat. Going by the examination-in-chief, he has stated that when the deceased showed his hand to stop the truck, he was at the distance of 10 feet. He stated that he told the deceased that there was no accommodation and thereafter, he started the truck in first gear. As the deceased was standing very close to the truck, the 1 st appellant ought to have been careful while starting the truck. The finding recorded by the Tribunal is that the aforesaid fact coupled with the evidence that the truck was very close clearly indicates negligence on the part of the 1 st appellant. It is not possible to find fault with the said finding 6 FH fa.488.95 on the issue of negligence. 10 Now the second question is regarding liability of the 6 th respondent – insurer. A written statement was filed by the 6 th respondent – insurer by contending that admittedly, the deceased was boarding the offending goods truck. Thus, even the case made out by the 6 th respondent is that the deceased had not entered into the truck, but he was trying to board the truck. The finding of the Tribunal is that the accident occurred when the deceased was trying to get into the truck. There is no finding recorded that the deceased was already sitting in the truck. 11 The learned counsel appearing for the 6 th respondent has relied upon sub-clause (6) of clause 1 of Section (II) of the police of the insurance. Clause (c) reads thus: “(c) Except so far as is necessary to meet the requirements of Section 95 of the Motor Vehicles Act, 1939 in relation to liability under the Workmen’s Compensation Act, 1923 the Company shall not be liable in respect of death of or bodily injury to any person (other than a passenger carried by reason of or in pursuance of a contract of employment) being carried or upon entering or mounting or alighting from the Motor Vehicle at the time of the occurrence of the event out of which any claim arises.” 12 In paragraph No.4 of its written statement, the stand taken by the 6 th respondent is that the said respondent was not required to cover 7 FH fa.488.95 risk of unauthorized passengers. It was specifically contended that the deceased was an unauthorised passenger. This defence has not been admittedly established. It is not contended in the written statement that the deceased was trying to get into the truck and that liability of such person was not covered by the policy. The policy excludes liability of person `mounting’ on the vehicle. The finding of the tribunal is not that the deceased had `mounted’ on vehicle. All that the Tribunal holds that the deceased came under the wheels of truck while trying to enter the truck. Going by the finding of the Tribunal, it appears that the deceased was not at all a passenger traveling by the truck . The liability of the person who had mounted on any part of the truck was excluded. There is no finding that the deceased had actually mounted on any part of the truck. 13 Thus, as far as the deceased is concerned, he will have to be treated as a third party and liability of such person was not excluded either under the policy or under the said Act of 1939. 14 Hence, on the second point, the Appellant must succeed. It must be held that the 6 th respondent is under an obligation to satisfy the award. To that extent, the appeal must succeed and I pass the following order: i. That part of the impugned award by which claim petition was dismissed as against the opponent 8 FH fa.488.95 No.3 is set aside ; ii. The impugned judgment and award is modified by directing that the opponent Nos.1, 2, 2A and 2B alongwith opponent No.3 to the claim petition shall be jointly and severally liable to pay compensation awarded under the impugned award. iii. Appeal is partly allowed on above terms with no order as to costs ; iv. If the compensation amount deposited by the Appellants has been withdrawn by the claimants, it will be open for the Appellants to recover the said amount from the 6 th respondent – insurer by executing the same award ; v. Civil Application No. 2644 of 2009 does not survive and the same is disposed of accordingly. [ A.S.OKA, J ]