4] Jijabai W vs 5] Anil
2012 Latest Caselaw 65 Bom

031012fa682.09 .odt
                                         1

                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY:




                                                                             
                                 NAGPUR BENCH: NAGPUR
                                 FIRST APPEAL NO.682/2009




                                                     
             APELLANT:
                  The United India Insurance Company Limited, through
                  Branch Office, Akola, district : Akola [original respondent




                                                    
                  no.3 on R.A.]
                                          VERSUS
             RESPONDENTS:
             1] Onkar s/o Shankarrao Bache, aged about 43, occ : labourer



                                            
             2] Manohar s/o Shankarrao Bache, aged about 37 years, occ :
                  Labourer
                                
             3] Bharat s/o Shankarrao Bache, aged about 32 years, occ :
                  labourer
                               
             4] Jijabai wd/o Bhaskar Dod, aged about 29 years, oc :
                  household,
                  All r/o Dapura, Tq Telhara, dist. Akola.
                  [Original petitioners no.1 to 4 on R.A.]
              


             5] Anil s/o Pralhad Zhamare, aged about 29 years, occ : Driver,
           



                  r/o Manabda, Tq. Telhara, District : Akola
             6] Mangalsingh s/o Fulsingh Solanki, aged - adult, occ : Owner,
                  r/o Sheri Bk. Tq. Telhara, Dist. Akola.
                  [No. 5 & 6 original respondent no.1 & 2 on R.A.]





             ================================================
             Mr. S.N. Dhanagare, advocate for appellant.
             ================================================





                                    CORAM: M.N. GILANI, J.

DATE: 3/10/2012.

ORAL JUDGMENT:

This appeal arises out of the judgment and award dated

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28.2.2007, passed by the Motor Accident Claims Tribunal, Akola

in M.A.C.P. No.5/1999.

2] Jeep bearing No. MH-30-B-11978 insured with the appellant

met with accident on the road in between village Dapura and Deori in District Akola. The persons travelling in the jeep sustained

injuries and some of them succumbed to those injuries. One Shankarrao inmate of the jeep died. His widow and children filed application for compensation.

3] Appellant raised defence of breach of terms and

conditions of insurance policy. Tribunal negatived the same, after

holding that the same has not been proved. 4] Mr. Dhanagare, learned counsel appearing for the appellant contended that the Tribunal was wrong in ignoring the

recitals in the First Information Report. Therefore, he submits that

the award passed against the appellant is not sustainable on facts and in law.

             5]            None appeared for the respondents.
             6]            The original petitioner no.2 Manohar entered the witness

box. According to him the jeep was carrying 8 passengers including

the driver. He denied the suggestion that 10-15 persons were travelling in jeep. One Jagdeo Sukhdeve who was the Divisional Manager of the appellant company entered the witness box to prove

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the defence. He is not an eye witness to the incident. He relied

upon the contents in the First Information Report. In the First Information report - Exhibit 35 there is a vague statement like "10-

15 persons were travelling in the jeep". It was correctly appreciated by the learned Tribunal while negativing the defence raised by the

appellant. In paragraph 11 it is observed thus:

"11-The question is as to who has to pay this amount. The respondent no.3 has examined one Jagdeo

Sukhdeve at Ex.43. He deposed that the vehicle was

used for carrying passengers beyond the capacity.

According to him, the policy has been issued only for ten persons, but the F.I.R. shows that there were about 10 to 15 persons travelling by the said jeep.

Therefore, the respondent no.3 contended that it is

breach of policy. The policy document is produced at Ex.38-A. No doubt it shows that the premium has

been accepted for only ten persons. However, except the statement in F.I.R. there is no evidence from the respondent no.3 to hold that more than ten persons

were travelling by the jeep. The figure ranges from 10 to 15. It is not definite that it was more than ten.

No names of the persons travelling by the jeep are mentioned in the F.I.R. nor same have been

031012fa682.09 .odt

mentioned by the witness in his deposition.

Therefore, it can be taken that even only ten persons were travelling by the jeep. "

7] The finding reached by the learned Tribunal appears to be consistent with the evidence on record. There being no evidence of

breach of terms of policy, the liability to pay compensation was rightly saddled upon the appellant.

The appeal is dismissed accordingly, with no order as to costs.

                                   ig             JUDGE
             SMP.