1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO.36 OF 2000 M/s New India Assurance Co.Ltd. Having its Regd. And Head Office at New India Assurance Building, 87, MG Road, Fort, Mumbai 411001 Branch office at Lakkad Kot. Jalna, Through its Divisional Office at Adalat Road, Aurangabad-431005 Through it’s Divisional Manager, & Duly Constituted Attorney Mr.Vishas Bansi Gaikwad. ..APPELLANT VERSUS 1) Raghunath s/o Sampat Daspute Age: 48 Yrs., occu. Household, Railgaon, Post Warud (Bk.) Tq. Bhokardan, Dist.Jalna. 2) Mrs.Kausalyabai w/o Raghunath Daspute, Age: 43 Yrs., occu. Household, R/o as above. 3) Mr.Gyaneshwar s/o Pundlik Konodje Age: 25 Yrs., occ.Driver of Tractor MH-21/A-7603 r/o Kulamkheda, Tq. And District Buldhana. 4) Mr.Namdeo s/o Laxman Misal Age: 40 Yrs., occu. Agril. & owner of Tractor MH/21-A-7603 and Trolly No.MH/21-C/6283, R/o Relgaon, Tq.Bhokardan District Jalna. ..RESPONDENTS 2 AND FIRST APPEAL NO.111 OF 2000 M/s New India Assurance Co.Ltd. Having its Regd. And Head Office at New India Assurance Building, 87, MG Road, Fort, Boambay 411001 Branch at Jalna and Divisional Office No.II Jalna Road, Plot No. 323, 324, N-4, CIDCO, Aurangabad 431 210, Through it’s Assistant Manager & Constituted Attorney Mr. Vijaykumar Mahipatrao Mhaisekar = APPELLANT VERSUS 1) Raghunath s/o Sampat Daspute Age: 48 Yrs., occu.Household, 2) Kausaliabai w/o Raghunath Daspute, Age: 43 Yrs., occu. - Household, Both r/o Railgaon, Tq.Bhokardan District Jalna. 3) Gyaneshwar s/o Pundlik Kanodje (appeal dismissed against R.3) 4) Namdeo s/o Laxman Misal Age: 40 Yrs., occu. Owner R/o Railgaon, Tq. Bhokardan, District Jalna. = RESPONDENTS --- Mr.VN Upadhye, Advocate, for the appellant. Mr.AS Osmanpurkar Adv., h/for Mr. JC Badve, Adv. For Resp.Nos.1 & 2. --- 3 CORAM : K.U.CHANDIWAL, J. DATE : 29th June, 2009 *** ORAL JUDGMENT : 1) The award of compensation for death of deceased travelling in the tractor owned by his employer, owner of the tractor, is subject of challenge by the insurance company. 2) The Counsel for the appellant/insurance company would urge, the finding of coverage of insurance company of the deceased or a passenger is perverse, not supported from the document. The Award, according to the counsel for the insurance company, is since in breach of terms of policy, Exh.26, the insurance company is exonerated. 3) The Counsel took recourse to the judgment of the Hon’ble Supreme Court in the matter of National Insurance Company Ltd. Vs. Cholleti Bharatamma and Ors. - (2008) 1 SCC 423 and also to earlier judgment of Hon’ble Supreme Court in the matter of New India Assurance Company Ltd. Vs. Vedwati – 2007 (3) ALL MR 312. Based on these judgments, according to counsel for the insurance company, the findings recorded need interference. 4) The claimants’ counsel, while supporting the judgment, took recourse to the report (FIR lodged with the Police) which disclose status of the deceased at the material time while travelling in the vehicle. He was more harping 4 Exhibit-26, insurance policy, which is not in controversy. The Counsel also took me to the pleadings (written statement of the insurance company), wherein it has not offered any explanation about nature of the insurance policy. The Counsel also invited attention to the cross- examination of claimant – Raghunath in which suggestion was made by the insurance company that deceased was a fare paying passenger (FPP) in the vehicle and not permitted to travel. 5) The judgment, to which counsel for the insurance company has given reference, basically deals with the persons wherein there was obvious breach of terms of the insurance company. In the matter of Cholleti Bharatamma (cited supra), it was the travel by 20 persons, some of the persons contended that their travel was owing to the goods belonging to them. The Lordships found that even if the goods belonged to the passengers, it was expected of them to occupy cabin and not on the heap of the goods at the rear side of the truck and consequently the contentions of insurance company were accepted. 6) The overall aspects in the matter, first removes a doubt that there is no perversity in the order of the learned Member of the Tribunal in interpreting the insurance policy, placed at Exh.26. One cannot be oblivious, the insurance policy will have to be read as a whole. In the instant case, apart from several collections on 5 different heads, there is a specific collection of Rs. 125/- from the owner of the vehicle under the caption “+ FPP premium”. It was in this scenario, the bounden duty cast on the insurance company to have explained its real meaning and the message it conveys. If the insurance company, as the learned Counsel argued, is exonerated in view of the coverage being fare paying passenger (FPP), then it is not expected of the same to have deposed in the cross- examination that the deceased to be a fare paying passenger. The insurance company cannot be allowed to perpetrate hot and cold at the same time. 7) The FIR, as stated earlier, disclose that the deceased was carrying goods belonging to his master. It does not imply that the deceased was a labourer or cleaner on the tractor. The simple meaning of the evidence and the FIR is., as the agriculture produce were to be sold in the market, as per the directions of the employer, the deceased was moving in the tractor and lost his life. The coverage, as indicated above, by accepting premium of Rs.125/-, in the fact situation will definitely bringing it within the bracket of the deceased to be covered for the loss of life. The deceased cannot be said firstly that he was fare paying passenger. If it is so, then the insurance company has accepted that situation and again to reiterate it cannot 6 get benefit of its own wrong. 8) The pleadings of the parties, to which reference is given, indicate in paragraph 2, insurance company says that the tractor alone was insured, trolley was not insured. This is again misplaced statement made by the insurance company, as Exhibit-30 belies its contention, which incorporated that the trailer was also insured. The next contention that the vehicle was to be used for agricultural purposes and not for carrying passengers, may be correct, but it is nobody’s case that the deceased was passenger on fare, but he was moving and traveling to his master in market committee. In the scenario, I do not see any error on the part of the learned Judge in fixing the liability of the insurance company. The quantum of compensation is not subject of challenge, therefore, those aspects about competence of the quantum for less amount is not adverted to. The appeal lacks merit, it is dismissed. In view of dismissal of the appeals, Civil applications in respective matters are also dismissed. 9) The Counsels for both sides agree for a direction to remit the amount deposited in this Court to the learned Executing Court. It be accordingly so remitted. Sd/- ( K.U.CHANDIWAL) JUDGE agp/bdv/fa36.00