476-J-FA-220-04 with connected appeal 1/11
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
FIRST APPEAL NO.220 OF 2004
M/s Jaihind Travelers,
Thr. Prop. Ajay Sahebrao Raut
Tilak Wadi, Yavatmal,
Tq. and District Yavatmal. ... Appellant.
-vs-
1. Sunil s/o Suryakant Jaiswal
aged about 29 years,
Occupation - Agril. and service
R/o Sant Chokha Mela Ward,
Umerkhed, Ta. Umarkhed,
District Yavatmal.
2. The New India Assurance Co. Ltd.
Thr. Branch Manager,
Branch office at Datta Chowk Yavatmal.
WITH
FIRST APPEAL NO.221 OF 2004
M/s Jaihind Travellers,
Thr. Prop. Ajay Sahebrao Raut
Tilak Wadi, Yavatmal,
Tq. and District Yavatmal. ... Appellant.
-vs-
1. Pramod s/o Narayan Mukirwar,
aged about 35 years,
Occupation - Service,
R/o Isapur (Dam), Tq. Pusad,
District Yavatmal.
2. The New India Assurance Co. Ltd.
Thr. Branch Manager,
Branch office at Datta Chowk Yavatmal.
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WITH
FIRST APPEAL NO.222 OF 2004
M/s Jaihind Travels,
Thr. Prop. Ajay Sahebrao Raut
Tilak Wadi, Yavatmal,
Tq. and District Yavatmal. ... Appellant.
-vs-
1. Smt. Kamlabai Vittalrao Bande,
Age about 40 years,
Occupation - Household work.
2. Rajesh s/o Vithalrao Bande,
Age about 28 years,
Occupation - Nil.
3. Kalpana d/o Vittalrao Bande,
Age about 20 years,
Occupation - student.
4. Mangala d/o Vittalrao Bande,
Age about 17 years,
Occupation - student.
5. Indira d/o Vittalrao Bande,
Age about 15 years,
Occupation - student.
6. Krishna s/o Vittalrao Bande,
Age about 11 years,
Occupation - student.
7. Dinesh s/o Vittalrao Bande,
Age about 9 years,
Respondent Nos.4 to 7 minors Thr.
Respondent No.1 being a Guardian.
Above all r/o Mainabai Nagar,
Itawa Ward, Pusad, Tq. Pusad,
District Yavatmal.
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8. The New India Assurance Co. Ltd.
Thr. Branch Manager,
Branch office at Datta Chowk Yavatmal. ... Respondents.
WITH
FIRST APPEAL NO.223 OF 2004
Ajay Sahebrao Raut
Prop. Of M/s Jaihind Travelers,
Tilak Wadi, Yavatmal,
Tq. and District Yavatmal. ... Appellant.
-vs-
1. Sakharam Bhikaji Sonunkar,
Age : about 52 years,
Occupation - Labourer
2. Indubai Sakharam Sonunkar
Age : 46 years. Occ. Labourer
3. Mandabai Dattaram Sonumkar,
Age : about 24 years, Labourer,
4. Chandrakant Dattaram Sonumkar,
Age : about 6 years (Under guardianship of
respondent Nos.1 to 3)
All r/o Mop, Tq. Pusad.
District Yavatmal.
5. The New India Assurance Co. Ltd.
Thr. Branch Manager,
Branch office at Datta Chowk Yavatmal. ... Respondents.
WITH
FIRST APPEAL NO.386 OF 2005
The New India Assurance Co. Ltd.
Thr. Branch Manager,
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476-J-FA-220-04 with connected appeal 4/11
Branch office at Datta Chowk Yavatmal. ... Appellant.
-vs-
1. Sudam Ramchandra Harip
Aged about 50 years,
2. Santosh Sudam Harip
Minor, Occupation Student,
3. Jitendra Sudam Harip
Minor, Occupation Student,
4. Rajendra Sudam Harip
Minor, Occupation Student,
Respondent nos.2 to 4 minors
Through their guardian Respondent No.1
Sudam Ramchandra Harip,
All residents of Shivan (BK),
Tq. Karanja, District Washim
5. Jaihind Travels,
Thr. Its Prop. Ajay Sahebrao Raut
Tilak Wadi, Yavatmal,
Tq. and District Yavatmal. ... Respondents.
Shri Amol Mardikar, Advocate for appellant in F.A. Nos.220 to 223/2004 and
for respondent No.5 in F.A. No.386/2005.
Shri K. S. Narwade, Advocate for claimants/respondents.
Shri A. H. Patil, Advocate for respondent Insurance Company in F.A. Nos.220
to 223/2004 and for appellant in F.A. No.386/2005.
CORAM : A.S.CHANDURKAR, J.
DATE : March 07, 2017 Common Judgment :
Since these appeals arise out of proceedings filed under Section 166 of the Motor Vehicles Act, 1988 (for short, the said Act) that arise from ::: Uploaded on - 27/03/2017 ::: Downloaded on - 27/08/2017 19:08:28 ::: 476-J-FA-220-04 with connected appeal 5/11 the same accident, they are being decided by this common judgment. F. A. Nos.220 to 223 of 2004 raise challenge to the common judgment dated 05/11/2003 by the Motor Accident Claims Tribunal, Pusad, while F.A.No.386 of 2005 raises challenge to the judgment of the Motor Accident Claims Tribunal Akola.
2. It is the case of the claimants that on 26/04/1999 they were travelling in bus No.MH-29-7550. Said bus was travelling from Pusad to Yavatmal. On account of negligent driving of the said bus, the same met with an accident resulting in fatalities and injuries to the passengers. Proceedings under Section 166 of the said Act came to be filed seeking compensation. The owner of the vehicle denied the liability to pay compensation on the ground that the driver of the vehicle was not rash and negligent. A plea was taken that the bus was duly insured with the respondent No.2-Insurance Company and as the policy was valid it was the liability of respondent No.2 to satisfy the claim. The Insurance Company took the stand that there was a breach of policy conditions as the bus which was registered as a tourist vehicle was used for carrying passengers as a stage carriage. The Claims Tribunal after considering the entire evidence on record held that the accident occurred on account of rash and negligent driving of the driver. It was further held that the bus had been granted permit for a tourist vehicle but it was used as a stage carriage resulting in ::: Uploaded on - 27/03/2017 ::: Downloaded on - 27/08/2017 19:08:28 ::: 476-J-FA-220-04 with connected appeal 6/11 breach of policy conditions. By the impugned judgment, the owner of the vehicle alone was held liable to satisfy the claim. Hence, F.A.Nos.220 to 223 of 2004 have been filed by the owner of the bus. F.A. No.386 of 2005 is filed by the Insurance Company as it is aggrieved by the judgment of the Motor Accident Claims Tribunal, Akola in proceedings arising from the same accident wherein the Insurance Company has been held liable alongwith the owner of the bus to satisfy the claim.
3. Shri Amol Mardikar, learned counsel for the appellant in F.A. No.220 to 223 of 2004 submitted that the Claims Tribunal was not justified in exonerating the Insurance Company from its liability. It was submitted that the breach of conditions as alleged had not been duly proved by the Insurance Company and the requirement of Section 149(2) of the said Act had not been duly proved. It was submitted that there was no fundamental breach of policy condition and even if there were some excess passengers in the bus, the said aspect that was not sufficient to exonerate the Insurance Company by holding that the policy conditions had been breached. Learned counsel for the appellant placed reliance upon the following decisions in support of her submissions :
(i) National Insurance Co. Ltd. vs. Swaran Singh and ors. AIR 2004 SC 1531.
(ii) National Insurance Co. Ltd. vs. Anjana Shyam and ors. AIR 2007 Supreme Court 2870.
(iii) Amalendu Sahu vs. Oriental Insurance Co. Ltd. AIR 2010 Supreme Court ::: Uploaded on - 27/03/2017 ::: Downloaded on - 27/08/2017 19:08:28 ::: 476-J-FA-220-04 with connected appeal 7/11 2090 (iv) Judgment of this Court in F.A. No.430/1997 with connected appeals dated
25/03/2010. (Sanjay s/o Badriparad Khandelwal vs. Sukhiyabai w/o Baratiya Gond and anr) It was therefore submitted that the judgment of the Claims Tribunal in F.A. Nos.22 to 223 of 2004 deserves to be modified by holding the Insurance Company also liable to pay the amount of compensation.
4. Shri K. S. Narwade, learned counsel for the claimants and Shri A. H. Patil, learned counsel for the Insurance Company supported the impugned judgment. Shri Patil, learned counsel referred to various provisions of the said Act to indicate the difference between a transport vehicle and a stage carriage. He submitted that there was a difference between contract carriage and stage carriage under the said Act. As per the policy of Insurance the vehicle in question was granted permit as a tourist vehicle but it was used as a stage carriage and therefore the same resulted in breach of policy condition. He then submitted that the Insurance Company had also led evidence to substantiate its defence and the Claims Tribunal had rightly exonerated the Insurance Company. It was submitted that the appeals were liable to be dismissed.
5. In F. A. No.386 of 2005, Shri Patil learned counsel for the appellant-Insurance Company submitted that one claim petition was filed ::: Uploaded on - 27/03/2017 ::: Downloaded on - 27/08/2017 19:08:28 ::: 476-J-FA-220-04 with connected appeal 8/11 before the Claims Tribunal at Akola. Though identical claim petitions were filed before the Claims Tribunal at Pusad in which the Insurance company was exonerated, the copy of said judgment could not be placed on record before the Claims Tribunal at Akola. He therefore submitted that in view of the fact that the accident was one and the same, the Insurance Company was also entitled to be exonerated from the liability.
These submissions were opposed by Shri Amol Mardikar, learned counsel for the bus owner on the ground that the breach of policy was not proved by the Insurance company and therefore it could not be exonerated.
6. With the assistance of learned counsel for the parties, I have perused the records of the case and I have given due consideration to the respective submissions. The finding recorded by the Claims Tribunal with regard to rash and negligent driving of the bus by its driver is not seriously under challenge. The only question that is required to be considered is with regard to the liability of the Insurance Company. The following point arises for determination :
" Whether the Insurance company is liable to be exonerated from its liability and whether the owner of the bus alone is liable ? "
7. The Insurance Policy was placed on record at Exhibit-40 while the permit was placed on record at Exhibit-41 in the proceedings before the ::: Uploaded on - 27/03/2017 ::: Downloaded on - 27/08/2017 19:08:28 ::: 476-J-FA-220-04 with connected appeal 9/11 Claims Tribunal at Pusad. The cover noted indicated that the bus was insured as a tourist bus and the permit at Exhibit-41 was for a tourist vehicle. As per Condition-3 of the said permit, the bus was not to be operated as a stage carriage. According to the Insurance Company by operating the said bus as a stage carriage there was a breach of policy condition.
8. The provisions of the said Act make a distinction between a contract carriage and a stage carriage. The Act also prescribes a different type of permit for a contract carriage and a stage carriage. This distinction is clear from the provisions of Section 2(7), 2(40) and Section 2(43) of the said Act. For the purposes of bringing on record this aspect of the matter the Insurance Company examined one Deepak Killedar as its witness. He placed on record the insurance policy and permit of the bus which indicated that it was to be used as tourist bus. The claimants in their deposition had stated that passengers travelled in the said bus from various points and also got down at various points. While a contract carriage is not entitled to pick up passengers during its journey, such course is permissible for a stage carriage. It is after considering this evidence on record that the Claims Tribunal came to the conclusion that by using the tourist vehicle as a stage carriage, the policy conditions were violated by the owner of the bus and therefore the Insurance Company was exonerated from its liability. On re-consideration of the entire material on record I find that the aforesaid conclusion has been ::: Uploaded on - 27/03/2017 ::: Downloaded on - 27/08/2017 19:08:28 ::: 476-J-FA-220-04 with connected appeal 10/11 arrived at in accordance with law.
9. In Swaran Singh and others (surpa), which was relied upon by the learned counsel for the appellant, it has been held that breach of policy conditions has to be specifically pleaded and then established by the Insurance Company. The aspect of fundamental breach of policy was also referred to. On considering the entire material available on record in the light of the law referred to therein, it can be seen that after specifically pleading a breach of policy condition, the same has been duly proved by the Insurance Company by leading evidence. The decisions in Anjana Shyam and ors. and Amalendu Sahu (supra) are clearly distinguishable in the facts of the case. Once it is found that the vehicle was operated in a manner contrary to the permit issued to it, the aspect of overloading of the bus is not of much significance. In Sanjay Badriprasad Khandelwal (supra) it was found that the policy in question was not placed on record so as to substantiate the stand with regard to breach of policy conditions and hence said decision is distinguishable on facts.
10. The Claims Tribunal has therefore rightly found that the Insurance Company was liable to be exonerated from its liability. Considering the nature of evidence on record this conclusion of the Claims Tribunal is in accordance with law.
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476-J-FA-220-04 with connected appeal 11/11 In so far as the judgment of the Claims Tribunal, Akola is concerned, these proceedings were decided after the claim petitions were decided by the Claims Tribunal, Pusad. The order passed in those proceedings however was no placed on record before the Claims Tribunal, Akola. As the accident is one and the same and the adjudication is also based on the same set of documents, two distinct orders based on identical facts cannot be permitted to operate. Hence, even in the proceedings before the Claims Tribunal, Akola the Insurance Company is liable to be exonerated. The point as framed therefore stands answered accordingly.
11. In view of aforesaid, there is no reason to interfere with the award passed by the Motor Accident Claims Tribunal, Pusad in MACAP Nos.322, 326, 331 and 340 of 2000 vide judgment dated 05/11/2003. The judgment in MACP No.73 of 2000 decided by the Claims Tribunal, Akola to the extent it holds the appellant in F.A. No.386 of 2005 liable is set aside. It would be open for the Insurance Company- appellant in F.A.No.386/2005 to recover the amount of compensation paid to the claimant from the owner of the vehicle in accordance with law.
F.A.Nos.220 to 223/2004 are therefore dismissed.
F.A. No.386/2005 stands allowed.
There would be no order as to costs.
JUDGE Asmita ::: Uploaded on - 27/03/2017 ::: Downloaded on - 27/08/2017 19:08:28 :::