1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
First Appeal No. 644 of 2006
Appellant : The Branch Manager, The New India Assurance
Co. Ltd., Nagpur, Branch-1 (160101) Vijay Bhavan,
2nd floor, Lokmat Chowk, Nagpur
Versus
Respondents: 1) Chandrabhan Kashiram Lanjewar, aged about
67 years, Occ: Nil
2) Sumanbai Chandrabhan Lanjewar, aged about
62 years, Occ: Household
3) Machindra Chandrabhan Lanjewar, aged about
23 years, Occ: Student
4) Roshnabai Chandrabhan Lanjewar, aged about
19 years, Occ: Student
All residents of Kuhi, Tahsil Kuhi, Dist. Nagpur
5) Narayan Damduji Bante, aged Major, Occ: Owner,
resident of Chipadi, Tahsil Kuhi, Dist. Nagpur
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Shri S. N. Dhanagare, Advocate for appellant Ms Pathade, Advocate for respondents 1 to 4 Respondent no. 5 served Coram : S. B. Shukre, J Dated : 6th December 2017 ::: Uploaded on - 13/12/2017 ::: Downloaded on - 15/12/2017 00:42:26 ::: 2 Oral Judgment
1. This appeal challenges the legality and correctness of the judgment and order dated 7th June 2006 passed by the Member, Motor Accident Claims Tribunal, Nagpur in Claim Petition No. 1007 of 1999.
2. Claim Petition filed under Section 166 of the Motor Vehicles Act by respondents no. 1 to 4 sought compensation for the untimely death of Dharmendra, son of respondents no. 1 and 2 and brother of respondents no. 3 and 4. According to them, he was working as a labourer at the time of accident. He died in the vehicular accident which took place at about 11.30 am on 29.8.1999 near Gram Panchayat, Kuhi, District Nagpur. At that time, Dharmendra was travelling by a trolly attached to tractor bearing registration No. MH-31-Z-7818. The tractor and trolly were owned by respondent no. 5 and insured with appellant at that time. Respondent no. 5 did not file any Written Statement, but the appellant filed its Written Statement and resisted the claim. The claim petition was partly allowed on merits by the impugned judgment and order. Not being satisfied with the same, the appellant is before this Court in the present appeal.
3. I have heard Shri Dhanagare, learned counsel for the appellant and Ms Pathade, learned counsel for respondents no. 1 to 4. ::: Uploaded on - 13/12/2017 ::: Downloaded on - 15/12/2017 00:42:26 ::: 3 Nobody appears for respondent no. 5.
4. Now, the only point that arises for my determination is:
Whether the appellant Insurance Company has proved that there was breach of the terms and conditions of the insurance policy and, therefore, the appellant was not liable\ to pay any compensation ?
5. According to learned counsel for the appellant, the appellant proved the breach of the terms and conditions of the insurance policy and, therefore, it was not liable to pay any compensation, which has been disagreed to by learned counsel for respondents no. 1 to 4.
6. Of course, as rightly submitted by learned counsel for the appellant in the application filed under Section 166 of the Motor Vehicles Act, respondents no. 1 to 4 no where pleaded that deceased Dharmendra was travelling by trolly in question in a capacity as labourer. But, the witness for the claimants, CW 1 Chandrabhan has in his examination-in- chief stated that at the relevant time, deceased was travelling by the said tractor and trolly as a labourer. On this assertion, CW 1 Chandrabhan has also been cross-examined by the appellant. A suggestion of denial of this ::: Uploaded on - 13/12/2017 ::: Downloaded on - 15/12/2017 00:42:26 ::: 4 assertion has been given to CW 1 Chandrabhan which has been denied by him.
7. So, even though there has been no pleading taken in the application, a case about travelling of the deceased in the capacity as a labourer by the trolly in question has been made out later on by the respondents. Learned counsel for the appellant would submit that if there is no pleading taken in the application, the evidence not supported by the pleading should not be admitted. I do not think that the contention is correct. It is well settled law that strict rules of evidence do not apply to the petitions seeking compensation under Section 166 of the Motor Vehicles Act. The rules of pleadings, broadly speaking, would be applicable as long as the absence of pleadings is accompanied by the prejudice caused to the other side. If a new case has been made out at a subsequent stage, without there being any pleadings made in that regard, the issue would have to be examined by the Court from the view point of the prejudice having been caused to the other side. Then, the Court would have to consider whether the other side has been taken by surprise and could not get sufficient time to meet the case newly made out. If no prejudice is seen to be caused to the other side, obviously absence of pleadings will have to be considered as irrelevant.
8. In the present case, if one considers the evidence of CW 1 ::: Uploaded on - 13/12/2017 ::: Downloaded on - 15/12/2017 00:42:26 ::: 5 Chandrabhan and the own pleadings of appellant taken in its Written Statement, one would find that the appellant was at no point of time taken by surprise. Therefore, there is no question of causing of any prejudice to the defence of the appellant by a new case put up by the claimants at the time of their evidence. Even in the Written Statement, a submission has been made that the deceased was driving by the trolly in question at the relevant time as a passenger and not as a labourer. Then, on this question, the witness for the claimants has also been subjected to cross-examination. So, prejudice to the defence of the appellant is absent in the present case.
9. In the circumstances, I find that there is no substance in the argument of learned counsel for the appellant that no new case could have been allowed to be made out by the claimants.
10. It is also the submission of learned counsel for the appellant that even if the evidence of the claimants' witness is accepted as it is, still, it could not be seen to be establishing the fact that the deceased was really travelling by the trolly as a labourer, because the owner of the tractor and trolly was not examined by them. The argument cannot be accepted for the reason that it was not the job of the claimants to summon a party, in opposition to it, as its witness. Rather, the owner of the ::: Uploaded on - 13/12/2017 ::: Downloaded on - 15/12/2017 00:42:26 ::: 6 offending vehicle could have been summoned as a witness by this appellant. But, this was not done in the present case. This would require drawing of an adverse inference against the appellant that it did not examine the owner, because the owner would not have supported its defence that the deceased was travelling by trolly in question as a mere passenger and not as a labourer.
11. Even otherwise, there is no reason for me to reject the evidence of CW 1 Chandrabhan on the point of travelling of deceased Dharmendra by the offending vehicle as a labourer. Chandrabhan was the father of deceased Dharmendra and could be presumed reasonably to have possessed the knowledge of what his son did for making a living. There are no circumstances brought on record by the appellant in evidence of this witness to entertain any doubt about his credibility. Therefore, accepting his evidence as reliable, I find that the claimants have proved in a reasonable manner by the law of probability that deceased Dharmendra was travelling by the offending vehicle at the relevant time as a labourer. Once this is found and which has been rightly found by the Tribunal, the Insurance Company would be obliged to pay the compensation along with owner of the offending vehicle. Thus, I find no ground for making any interference with the findings recorded by the Tribunal.
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12. In the result, I am of the view that there is no merit in the appeal and it deserves to dismissed. Point is answered accordingly.
13. Appeal stands dismissed. Parties to bear their own costs.
CAF No. 3806 of 2017 : In view of dismissal of appeal, application is allowed. Claimants are permitted to withdraw the amount of compensation deposited in this Court by the appellant together with accrued interest. Disposed of. I S. B. SHUKRE, J joshi ::: Uploaded on - 13/12/2017 ::: Downloaded on - 15/12/2017 00:42:26 :::