1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL.NO.816/2009 ------------------------------------------- United India Insurance Company Ltd. Through its Divisional Office, Divisional Manager, Osmanpura Aurangabad. .. APPELLANT [ORIG.RESPONDENTS] VERSUS 1] Digambar s/o Tukaram Gabhane Age 60 years, Occ-Agril R/o Mali Galli, Kalamnuri Taluka Kalamnuri,Dist.Hingoli 2] Shantabai w/o Digambar Gabhane Age 55 years Occ- R/o as above. 3] Ranjana w/o Ganesh Gabhane Age 30 years, Occ-Household R/o as above. 4] Durga w/o Ganesh Gabhane Age 25 years, Occ-Household R/o as above. ... RESPONDENTS [ORIG.PETITIONERS] .... 2 Shri S.V.Kulkarni ,Adv.for appellant. Shri Sachin Deshmukh,Adv.for R. 1. .... CORAM : R.K.DESHPANDE,J. JUDGMENT RESERVED ON : 10/08/2009 JUDGMENT PRONOUNCED ON : 25/08/2009 ORAL JUDGMENT : This appeal challenges the judgment and award dated 3/7/2008 passed by the learned Member, Motor Accident Claims Tribunal, Hingoli in Motor Accident Claims Petition No.345/2001 directing appellant insurance company, to pay compensation of Rs.1,79,500/- under Section 166 of the Motor Vehicles Act, to the claimants- respondents 1 to 4 herein. The award further directs the insurance company to pay simple interest at the rate of 6% p.a. on the amount of compensation from the date of the petition i.e. from 6/10/2001 till its realization. The insurance company, being aggrieved by the said award, has preferred this appeal. The facts in brief leading to the case are as under : 2] The respondents are the original claimants and legal heirs of deceased Ganesh Gaware, r/o Kalamnuri and had filed M.A.C.P.No. 3 345/2001. The claimants alleged that on 30/12/2000, the deceased Ganesh alongwith businessman Suganna Kondayya Thelpak and other persons went to Amrawati for purchasing clothes in a jeep bearing No.MH-22/B-7142. It was alleged that while returning from Amravati,the jeep suddenly turned turtle and met with an accident at about 3 p.m. on 30/12/2000, near Balsond village. The deceased Ganesh was driving the vehicle and he sustained injuries and ultimately died. It was alleged that Ganesh was driving the jeep in the capacity as driver of the vehicle and not in the capacity as owner of the vehicle. In the background of these facts, the claimants claimed that the deceased was earning monthly income of Rs.4000/- at the time of his death and he was 34 years of age. The claimants claimed total compensation of Rs,8,16,000/- and after deducting 1/3 amount for personal expenses, the compensation claimed, was Rs.5,71200/-. In addition to this, an amount of Rs.30000/- was claimed towards funeral expenses, pains, consortium, mental shock, agony etc. Thus, the total claim was for Rs.6 Lakhs. The claimants alleged that the vehicle was insured with the appellant insurance company and the policy was in force from 22/8/2000 to 21/8/2001. The claimants alleged that the deceased Ganesh was the owner of the vehicle and an amount of Rs. 509/- was paid towards third party risk, Rs.15/- was paid towards the 4 risk of driver and Rs.26/- was paid towards service charge. Thus, according to the claimants, total premium of Rs.550/- was paid to the insurance company and the risk of driver was covered by the policy. 3] The appellant insurance company filed its written statement and denied the claim. The insurance company raised a defence that the insurance policy was silent about the specifications of payment and the premium of Rs.550/- was paid towards Act policy. The defence was taken by the insurance company that the deceased himself was driving the vehicle and the risk of the owner was not covered by the policy. The claim was as such opposed by the insurance company. 4] The Tribunal recorded a finding that the deceased Ganesh died in the accident which occurred on 31/12/2000 because of his losing control over the jeep no.MH-22/B-7142. It has further recorded a finding that the said vehicle was insured with the appellant insurance company under the insurance policy which was placed on record as Exh.33. The Tribunal recorded a finding that the deceased was the owner of vehicle and at the relevant time, was driving the vehicle. The Tribunal further held that an amount of Rs.509/- was paid towards the third party risk which included an amount of Rs.15/- towards risk of the 5 driver and Rs.26/- towards the service charges. It was held that the deceased was driving the jeep in the capacity as a driver and not in the capacity of the owner of the jeep. The insurance policy covered the risk of driver and therefore, the insurance company was liable to pay the compensation of Rs.1,79,500/-. 5] The learned counsel for the appellant challenges the impugned award mainly on the ground that the insurance policy at Exh.33 did not cover the risk of owner of the vehicle. What was covered, was the risk of driver of the vehicle and the deceased was driving the vehicle as the owner of the vehicle. The learned counsel sought to make a distinction between the owner driver and the paid driver and alleged that the risk covered was that of the paid driver. In support of this contention, he relied upon the Exh.33 the insurance policy and the evidence of RW.1 Vinayak Devidasrao Ashturkar, the branch manager of the appellant company, examined as a witness. The learned counsel for the appellant relied upon several decisions of the Apex Court, which are mentioned below: 1] AIR 2003 S.C. 2877 Ramshreyasing V/s New India Assurance Company Ltd. 2] 2009(1) T.A.C. 425 (S.C.) New India Assurance 6 Company Ltd. V/s Sadanand Mukhi. 3] 2007(4) M.L.J. page 388 National Insurance company V/s Laxminarayan Thut 4] 2008 AIR S.C.W. 4549 Oriental Insurance Company V/s Sudhakaran. 5] AIR 2007 S.C. 1054 Oriental Insurance Company V/s Smt.Jhuma Saha. 6] The learned counsel for the respondent claimants relying upon the police at Exh.33 and also upon the evidence of Vinayak Devidas Ashturkar, branch manager of the appellant company, submitted that the insurance policy at Exh.33 was towards third party risk and Rs.15/- were paid as extra premium to cover the risk of the driver. In addition to it, an amount of Rs.26/- was also paid towards service charges. Thus, the total premium of Rs.550/- was paid to cover not only the third party risk but also the risk of the driver of the vehicle. According to the learned counsel for the respondent claimants, the term “Driver” has been defined under Section 2(9) of the Motor Vehicles Act, 1988, which does not warrant any artificial distinction to be made as owner driver and the paid driver. The learned counsel submitted that the Tribunal has correctly appreciated the controversy and recorded the finding that the deceased Ganesh was driving a jeep in the capacity as a driver and not as a owner and therefore, in terms of the policy at Exh.33, the insurance company was liable to make the payment of 7 compensation to the claimants who are the legal heirs of the deceased. 7] At the outset, I must state here that the only question raised before this Court by the appellant is regarding insurance cover to include the risk of the driver who is the owner of the vehicle. There are no other points raised in this appeal regarding challenge to the quantum of compensation awarded by the Tribunal. 8] After going through the policy at Exh.33, and after perusing the deposition of witness Vinayak Devidas Ashturkar, it is apparent that the policy at Exh.33, was in respect of third party insurance. However, extra premium of Rs.15/- was paid to cover the risk of the driver of the vehicle. In cross examination, the witness has stated that he has not obtained proposal form from the owner of the jeep and it was on the basis of the cover note and the proposal form that the insurance policy was issued by the office. The cover note according to the said witness was silent about the specifications stated by him regarding the coverage of risk of driver. He has also stated that he has not brought the original proposal form submitted by the owner. He showed his inability to produce the original proposal form. 8 9] It cannot be disputed that the burden of proof to establish the defence in a claim petition, is upon the appellant insurance company. The insurance policy at Exh.33, if read with the deposition of said Vinayak, a witness for the appellant makes it apparent that the policy covered the risk of a driver. The distinction between the paid driver and the owner driver sought to be made is not substantiated by producing any material available on record. Probably, the original proposal form submitted by the insured/owner would have disclosed if there was any such distinction made. However, the appellant company has failed to produce the original form and it is not the evidence adduced by the appellant that the form was not available or was lost. In view of this, I am of the opinion that the appellant insurance company has failed to substantiate its stand to distinguish the risk coverage of a paid driver from the owner driver. 10] In this context, the definition of the driver needs to be seen, which is given under Section 2(9) of the Motor Vehicles Act, 1988, which is reproduced as under : “2(9) “driver” includes, in relation to a motor vehicle which is drawn by another motor 9 vehicle, the person who acts as a steersman of the drawn vehicle.” 11] From the aforesaid definition, it would be apparent that whosoever acts as a steersman of the drawn vehicle is to be treated as a driver. The definition is comprehensive and it covers the paid driver or the owner driver. It does not make any distinction as paid driver or owner driver. It is not the case of the appellant that the policy at Exh.33 was only to cover the risk of an employee under the Workmen’s Compensation Act. Therefore, in my view, the owner driver is also covered by the policy at Exh.33 and the additional premium of Rs.15/- was also paid to cover the extra risk of a driver and it is possible that the deceased intended to cover the risk of any such persons engaged in driving the vehicle. Hence in my view, the insurance company was liable to compensate the applicant, covering the risk of the deceased. 12] The learned counsel for the appellant has relied upon several judgments of the Apex Court which are cited supra. I have gone through all these judgments cited by learned counsel for the appellant. In none of the judgments cited, any distinction has been made between the paid driver and the owner driver. In all these cases, the 10 policy involved was third party insurance policy without payment of any extra premium to cover the risk of particular person viz. the driver. The principle laid down in the judgments cited supra, cannot therefore, be disputed that the third party insurance would not cover the risk of the owner. In addition to the Act policy, it is permissible for the insured to make extra payment to cover the risk of certain categories of persons by entering into contract with the insurance Company. In the present case, such a contract has been entered into between the insurance company and the deceased in respect of risk of a driver of the vehicle in question. It is a contractual liability which is undertaken by the insurance company. In view of this, none of the judgments cited by the learned counsel for the appellant are of any help to substantiate the grounds of challenges raised in this appeal. 13] In view of above, there is no substance in the instant appeal and the same is therefore, dismissed with costs. [R.K.DESHPANDE] JUDGE umg/fa816-09 ....