FA 66.08.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
FIRST APPEAL NO.66 OF 2008
The New India Assurance Company
Limited, through its Branch Office,
Homi House, Kingsway, Nagpur,
Tahsil and District-Nagpur.
(Original Respondent No.2.) .. APPELLANT
.. VERSUS ..
1] Sadashiv son of Ganba Meshram,
Aged about 70 years,
Occupation-Nil, Resident of C/o.
Shri Ramsewak Thakur, Railway
Station Road, Katol, Tahsil-Katol,
District-Nagpur.
(Original Claimant).
2] Sardarsingh son of Sonmursingh
Rathor, Aged about 75 years,
Occupation-Jeep owner,
Resident of Kalpawayborawar,
District-Nagurat (Rajasthan),
(Original Respondent No.1.) .. RESPONDENTS
..........
Shri A.H. Patil, Advocate for Appellant,
None for respondents though duly served.
..........
CORAM : KUM. INDIRA JAIN, J.
DATED : SEPTEMBER 18, 2017.
::: Uploaded on - 21/09/2017 ::: Downloaded on - 22/09/2017 01:26:24 ::: FA 66.08.odt 2 ORAL JUDGMENT This appeal takes an exception to the judgment and award dated 28th September, 2007 passed by the Motor Accident Claims Tribunal, Nagpur in Claim Petition No.938/1998. By the said judgment and award, owner and insurer of the vehicle involved in an accident have been jointly and severally saddled with the liability of payment of compensation amounting to Rs.1,30,000/- with interest at the rate of 7.5% per annum from the date of petition till its realization.
2] The facts giving rise to the appeal may be stated in brief as under :
(i) Rajesh Meshram, aged about 27 years, working as an electric wireman, was son of respondent no.1. On 8.6.1998, Rajesh was travelling in Mahindra Jeep No.RSR- 17 from Katol to Nagpur. Near Dorli (Bhingare) shivar on Katol-Kalmeshwar road, driver of jeep lost control and it turned turtle near a bridge. Rajesh sustained injuries. He was admitted to Indira Gandhi Medical College and Hospital. During treatment he died on the same day. ::: Uploaded on - 21/09/2017 ::: Downloaded on - 22/09/2017 01:26:24 ::: FA 66.08.odt 3
(ii) Respondent no.1 filed a petition claiming compensation under Section 166 of the Motor Vehicles Act. It was submitted that accident occurred due to rash and negligent driving of jeep by its driver and, therefore, owner and insurer of the vehicle were liable to pay compensation.
3] Petition was resisted by insurer of vehicle/appellant. According to insurance company, at the time of accident, vehicle was carrying unauthorized passengers and it was used for hire and reward purpose. The submission was that policy was Act only policy and vehicle was insured as a private vehicle. It was submitted that in view of breach of terms and conditions of policy, insurance company cannot be held liable to pay compensation.
4] On rival pleadings of the parties, tribunal framed issues at Exh.24. Petitioner examined himself and relied upon various documents including police papers. PW-2 Ajay Dhore, employer of deceased, was examined to prove his income.
5] Considering the oral and documentary evidence, tribunal came to the conclusion that accident occurred due ::: Uploaded on - 21/09/2017 ::: Downloaded on - 22/09/2017 01:26:24 ::: FA 66.08.odt 4 to rash and negligent driving of jeep by its driver and petitioner was entitled to receive compensation of Rs.1,30,000/- from the owner and insurer of vehicle along with interest thereon, as stated in paragraph one above. It is this order which is the subject matter of challenge in this appeal.
6] The learned counsel for appellant submitted that policy was an "Act Policy" and the risk of occupant of vehicle was not covered under the policy. Learned counsel submits that policy could not be placed on record and on the basis of cover note (Exh.41), tribunal wrongly observed that it was a comprehensive policy. Learned counsel, vide pursis dated 28.8.2017, produced a copy of policy and submits that it being an "Act Policy" risk of deceased as an occupant was not covered under the policy.
7] The learned counsel for appellant placed reliance on the decisions of the Hon'ble Apex Court in (i) Oriental Insurance Company Limited .vs. Surendra Nath Loomba and others [2013 ALL SCR 30] and (ii) National Insurance Company Limited .vs. Balakrishnan and another [2013 ALL SCR 104] and submitted that to decide, whether it is a "Comprehensive" ::: Uploaded on - 21/09/2017 ::: Downloaded on - 22/09/2017 01:26:24 ::: FA 66.08.odt 5 or "Act Policy", matter needs to be remitted to the tribunal. 8] None appeared for respondents though duly served. On perusal of record, it appears that policy was not produced either by petitioner or by respondents. Though in paragraph 15 of the judgment, tribunal refers to insurance policy (Exh.74), no such policy is found on record. Rojnama of the proceedings clearly indicates that the last exhibit is Exh.52 judgment delivered by the tribunal. This shows that Exh.74 is not in existence and Exh.52 being the last document, observations of tribunal in paragraph 15 are per se against the report and without any base. 9] In the cases relied upon by the learned counsel for appellant question which arose for consideration before the Hon'ble Apex Court was, whether the policy was an "Act Policy" or "Comprehensive/Package Policy". The certificate of insurance, though was filed, policy was not brought on record. In this situation, the Hon'ble Apex Court remitted the matters to scrutinize the policy and to decide, whether risk was covered.
10] In the case on hand, though policy was not filed before the tribunal, copy of the same is now placed along ::: Uploaded on - 21/09/2017 ::: Downloaded on - 22/09/2017 01:26:24 ::: FA 66.08.odt 6 with pursis dated 28.8.2017. When cover note of insurance is filed but the policy is not, it only conveys that the vehicle was insured. The nature of policy cannot be discerned from the same. In these situations, it would be appropriate to remit the matter to the tribunal to enable the insurer to produce the policy and grant liberty to the parties to file additional documents and also lead further additional evidence if necessary.
11] In the light of the above, following order is passed :
(i) First Appeal No.66/2008 is allowed to the extent indicated herein-above and the impugned judgment and award against appellant is set aside.
(ii) Matter is remitted to the tribunal for its disposal in accordance with the law.
(iii) As the accident is of 1998, tribunal to decide the petition, as early as possible and preferably within a period of six months.
(iv) No order to costs.
(v) Steno copy is allowed.
(Kum. Indira Jain, J.)
Gulande, PA
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