fa1909.10 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD FIRST APPEAL 1909 OF 2010 . Bajaj Allianz General Insurance Co. Ltd GE Plaza, Airport Road, Yerwada, Pune Through its Branch Manager 2 nd Floor, Rajendra Bhavan Adalat Road, Aurangabad 431 001. .. APPELLANT VERSUS 1 Balaji s/o Ramrao Gunjkar age 23 years, occ. private service r/o Hingoli Gate, Ashrafnagar, Nanded Tq. & Dist. Nanded 2 Bagadiya Jigar s/o Bagadiya Ali age major, occ. business Proprietor of Altaj Trading Company r/o Khoja Colony, Nanded Tq. & Dist. Nanded. 3 Abdul Khan Amarbhai Bagadiya age major, occ. business r/o Karimabad Society, Nanded Tq. & Dist. Nanded. .. RESPONDENTS Mr. S.G. Chapalgaonkar, advocate for the appellant. Mr. V.D. Patnoorkar, advocate for respondent no.1. Mr. S.S. Rathi, advocate for respondent no. 2. ===== CORAM : R.M. BORDE, J. DATE : JULY 19, 2011. fa1909.10 2 ORAL JUDGMENT : 1 Heard. 2 Admit. With the consent of the parties, the appeal is taken up for final disposal at admission stage. 3 This is an appeal by the insurance company raising exception to the judgment and order passed below exh. 5 in MACP no. 615/2008 by the Adhoc District Judge -1, Nanded on 6-7-2010. 4 Claimant / respondent no. 1herein presented claim petition under section 166 of the Motor Vehicles Act bearing MACP no. 615/2008 before the Motor Accident Claim Tribunal, Nanded, claiming compensation to the tune of Rs. 3,00,000/- on account of injuries sustained by him in the accident involving Bajaj tempo. Original respondent nos. 1 and 2 are the owner and driver of the vehicle and original respondent no. 3 is the insurance company / appellant herein. It is the contention of the claimant that he was engaged as servant at the shop belonging to original respondent no. 1. On the fateful day i.e. on 27-12-2007, he was proceeding for distributing the fa1909.10 3 goods belonging to original respondent no. 1, in an auto rickshaw bearing no. MH 26 H 2039 alongwith the driver of the rickshaw. When they reached near village Kakadi, because of negligent driving of the rickshaw driver, vehicle turned turtle and as a result thereof, claimant suffered fracture injury to his left leg. The claimant was hospitalised and was required to take treatment as an indoor patient since 27-12-2007 till 24-1-2008. The claimant, as a result of his sustaining permanent disability, claimed compensation to the tune of Rs. 3,00,000/-. 5 Claimant tendered application exh. 5 claiming interim compensation to the tune of Rs. 25,000/- under section 140 of the Motor Vehicles Act. The claim petition as well as application claiming interim compensation under section 140 of the Motor Vehicles Act were opposed by the insurance company by filing written statement / say. It is the contention of the insurance company that the vehicle in question i.e. a tempo was a goods carriage vehicle and its sitting capacity was prescribed as ‘one’. The vehicle was not meant for carrying passengers or any other person except a driver. It is also contention of the insurance company that the driver of the vehicle was not having valid driving licence at the time of occurrence of the accident. On these grounds, insurance company denies its liability in re- fa1909.10 4 imbursing the owner of the vehicle. The tribunal, after considering the evidence adduced, was pleased to allow the application tendered by the claimant at exh. 5 and directed original respondent nos. 1 to 3 to jointly and severally pay interim compensation amount of Rs. 25,000/- to the applicant i.e. claimant within one month from the date of order. 6 Mr. S.G. Chapalgaonkar, learned counsel for the appellant has contended that there is breach of terms of the policy and as such insurer is not liable to re-imburse the owner of the vehicle and contribute in paying the amount of compensation. The tribunal has erred in refusing to appreciate the contentions raised by the insurance company in respect of breach of terms and conditions of the policy. Mr. Patnoorkar, learned counsel for the claimant supports the order passed by the tribunal. 7 I have gone through the impugned order as well as the relevant material placed on record. The certificate cum policy placed on record shows that the sitting capacity of the vehicle is ‘one’ and the vehicle in question is a goods carriage vehicle. The vehicle of the owner has paid premium amounting to Rs. 1530/- towards third party and an additional premium is paid covering risk of the driver. There is no amount paid for fa1909.10 5 covering the risk of any passenger or anybody else except the driver. Learned counsel for the appellant is therefore justified in contending that the policy drawn by the owner does not contemplate liability in respect of paying compensation to the occupants of the vehicle. Considering the capacity of vehicle in question, none other than the driver was supposed to travel in the vehicle in question. It is not disputed that the tempo is registered as goods carriage vehicle. Considering the terms of the policy, it transpires that only risk of the driver is covered under the policy. It is the case of the claimant that he was travelling alongwith goods. The vehicle in question is not such which permits any other person to travel alongwith goods. The risk of the claimant therefore cannot be said to have been covered under the policy. Thus, there is breach of the terms and conditions of the policy which aspect has not been considered by the tribunal. It was therefore an error on the part of the tribunal to saddle the risk in respect of paying compensation on the insurance company. The order passed by the tribunal directing the insurance company to contribute in paying compensation is erroneous. 8 Learned counsel for the claimant urges that the question in respect of liability accruable on the insurance company be kept open and the matter be remitted back to the tribunal with direction to dispose of the application fa1909.10 6 tendered by the claimant under section 166 of the Motor Vehicles Act. The ends of justice would be met if the tribunal is directed to decide MACP no. 615/2008 presented by the claimants on its own merit in accordance with law. The tribunal is directed accordingly. The amount of compensation to the tune of Rs. 25,000/- deposited by the insurance company be transmitted to the tribunal. The tribunal shall not disburse the amount until disposal of the claim petition and disbursement of the amount and entitlement of the claimant to receive the same would be subject to final out come of the claim petition presented under section 166 of the Motor Vehicles Act. The tribunal shall decide the controversy involved in the matter without being influenced by the observations made in this judgment. 9 Pending civil application, if any, does not survive and stands disposed of. ( R. M. BORDE,J.) dyb Authentic copy ( Mrs. D. Y. Bhogle ) Pvt. Secy. to the Hon’ble Judge