1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO.268 OF 1996 New India Assurance Company Ltd., having its registered office at New India Assurance Building, 87, Mahatma Gandhi Marg, Fort, Bombay, and having branch office at Latur and Divisional Office at Nanded and Aurangabad. Appellant Versus 1 Kevalbai Bhagwat alias Bhaguram Lawate, age 28 years, Occ: Household; 2 Minabai d/o Bhagwat alias Bhaguram Lawate, age: 10 years; minor 3 Janabai d/o Bhagwat alias Bhaguram Lawate; age: 8 years, minor; 4 Dhanaji Bhagwat alias Bhaguram Lawate; 6 years, minor; 5 Sonerao Bhagwat alias Bhaguram Lawate; 4 years, minor; Respondents-claimants no.2 to 5 are minors and are under the guardianship of their natural mother claimant Respondent No.1 – Kevalbai. 6 Lochanbai w/o Ratnappa Lawate, age: 68 years, Occ: Household, R/o Hasegaonwadi, Tq. Ausa, District Latur. 7 Panjabrao Babruwahan Shitapure, 2 major, Occ: Business – Truck owner, R/o Anand Nagar, R/o Latur, District Latur. 8 Sanjay Babruwahan Shitapure, age: 23 years, Occ: Driver, R/o Anandnagar, Latur, District Latur. Respondents Mr.S.L.Kulkarni, advocate for the appellant. Mr.U.R.Kulkarni, advocate for Respondents No.1 to 6. Respondents No.7 & 8 served. CORAM: R.M.BORDE, J. DATE : 16 th February, 2010. ORAL JUDGMENT: 1 The Insurer has approached this Court raising exception to the judgment and award dated 09.01.1996, passed by Ex-Officio Member, Motor Accident Claims Tribunal, Latur in M.A.C.P. No.179 of 1992. The Tribunal, while awarding compensation to the tune of Rs.2,07,000/- together with future interest at the rate of 12% p.a. in favour of claimants, saddled responsibility in respect of making payment on the insurer along with owner and driver of the vehicle. 2 The claim petition is presented by widow and children of deceased Bhagwat alias Bhaguram who died in vehicular accident on 16.06.1992. It is contended by claimants in the claim petition that deceased hired truck bearing No.MTL-6275 for bringing fodder from Udgir. Deceased was proceeding in the vehicle from Latur to Udgir via Nalegaon. When vehicle reached near village Ashta, according to claimants, driver of the 3 vehicle lost control over vehicle, which resulted in the accident. Deceased, who suffered extensive injuries, was shifted to Civil Hospital, Latur. However, he succumbed to the injuries on 06.07.1992. According to claimants, death of deceased is attributable to the occurrence of vehicular accident. Deceased was an agriculturist and was earning Rs.3000/- per month. Claimants, as such, claimed that they are entitled to receive compensation to the tune of Rs.11,35,000/-, however, claim has been restricted to Rs. 4,00,000/-. 3 Original opponents no.1 and 2 i.e. owner and driver of the vehicle contested the claim by filing written statement. It is admitted that deceased was travelling in the vehicle in question which met with accident on 16.06.1992. It is also admitted that truck was hired by deceased, his brother Rama and two others for carrying fodder. However, they denied occurrence of accident as a result of rash and negligent driving of driver. 4 Opponent No.3 Insurance Company – appellant herein has also opposed claim by filing written statement at Exhibit-15. It is contended by the insurer that deceased was passenger travelling in goods vehicle and as such, insurance company is not liable to reimburse the claim. 5 The Tribunal, after considering evidence on record, came to the conclusion that claimants are entitled to receive compensation to the tune of Rs.2,07,000/- and saddled responsibility in respect of payment of compensation on all the opponents including insurer, in view of judgment and award dated 09.01.1996. 6 The challenge is raised to the award by insurance company on 4 the ground that insurer ought to have been exonerated of its liability as deceased was a passenger travelling in goods vehicle. 7 I have heard heard arguments advanced by Shri S.L.Kulkarni, learned Counsel for appellant and Shri U.R.Kulkarni, learned Counsel for Respondents No.1 to 6 – original claimants. 8 Shri S.L.Kulkarni, learned Counsel appearing for appellant, has invited my attention to the contentions raised in claim petition. It is stated by claimants in paragraph 2 of the claim petition that deceased was travelling from Latur to Udgir in goods truck bearing No. MTL-6275. My attention is invited to the deposition of witness no.2 for claimants – Ram Ratnappa Lawate. The witness is brother of deceased and was also travelling in the truck, which met with accident. It is stated by the witness that he, along with deceased, were sitting in the cabin. The truck was loaded with manure. He further admits in the cross examination that all of them were proceeding to Udgir to bring fodder. He further states that they got into truck at Latur. It is further stated that manure was being carried to Udgir and owner of manure was also sitting in the truck along with manure. Thus, it transpires that goods in question i.e. fodder was to be lifted from Udgir and same was to be transported to the place prescribed by deceased. The truck was proceeding from Latur to Udgir and there was manure loaded in the truck. The owner of goods, being transported, was also travelling along with goods. Thus, it is clear that deceased was not a traveller accompanying goods in the truck. It is clear that goods were to be lifted from Udgir and to be transported at some other place. In the circumstances, it cannot be said that deceased was the person travelling with goods. The Insurance Company is, therefore, justified in denying their liability. The evidence in the form of oral evidence of 5 witness n.2 for claimants is clear enough to draw such an inference and no other inference is permissible in the facts and circumstances of this case. 9 It is, thus, clear that deceased was travelling in goods vehicle as a passenger. In view of the law laid down by Apex Court in the matter of Oriental Insurance Co. Ltd. Vs. Devireddy Konda Reddy, reported in 2003 ACJ 468, which has been followed in all successive decisions, the Insurance Company shall have to be exonerated of its liability in respect of payment of compensation. The judgment and award passed by Tribunal needs modification to that extent. 10 For the reasons stated above, appeal is allowed. The judgment and award dated 09.01.1996, passed by Ex-Officio Member, Motor Accident Claims Tribunal, Latur in Motor Accident Claims Petition No.179 of 1992, holding appellant-Insurance Company responsible for making payment towards amount of compensation to the claimants, is quashed and set aside. However, it is clarified that claimants would, very well, be entitled to recover amount of compensation from the owner and driver of the vehicle. The Insurance Company shall have a liberty to recover amount of compensation paid to claimants, from owner of the vehicle. In the facts and circumstances of this case, there shall be no order as to costs. (R.M.BORDE) JUDGE ******* adb/fa26896