Bombay High Court
M/S. National Insurance Co.Ltd vs Arif Hussain Qureshi & Ors on 12 April, 2016
Bench: V.K. Jadhav
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 616 OF 2002
WITH
CIVIL APPLICATION NO.3961 OF 2002 IN FA/616/2002
M/s National Insurance Co. Ltd.,
having its Regd. and Head Office at
3, Meddlton Street, Calcutta 700071
NAGPUR Br, At Divisional Office
at Hazari Chambers, Station
Aurangabad through it's
Divisional Manager and Constituted
Attorney Mr. Shrikrishna Ramji
Bodade age 52 Yrs. ... Appellant
(Orig. Respdt. No.3)
VERSUS
1. Arif Hussain Qureshi,
age 35 Yrs. Occ. Tel.Engineer,
r/o S.T.Colony, Katkat Gate,
Hattesingpura, Aurangabad.
2. Dr. Anil D. Gupta
Age Major, Occ. Business,
R/o Ishwarnagar, Nagpur
C/o Sai Steel Furniture,
Bhagyanagar, Nagpur.
3. Ramesh Khadse
Age major, Occ. Driver,
r/o Hawar Peth,
Bhagwannagar, Nagpur. ... Respondents
.....
Advocate for the appellant : Mr. V. N. Upadhye
Advocate for respondent No.1 : Mr. Sayyed Tauseef
Advocate for respondent No. 2 : Mr. S. R. Deshpande
Respondent No. 3 served.
.....
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CORAM : V. K. JADHAV, J.
RESERVED FOR JUDGMENT ON: 2ND APRIL, 2016
JUDGMENT PRONOUNCED ON: 12th APRIL, 2016
JUDGMENT:-
1. Being aggrieved by the judgment and award dated 02.03.2002
passed by learned Member, MACT, Aurangabad in MACP No.368 of
2000 , the original respondent No.3-insurer has preferred this appeal.
2. Brief facts giving rise to the present appeal are as follows:
a) Claimant Arif Hussain Qureshi was serving as Telecom
Engineer at Vaijapur, District Aurangabad at the time of accident, and
in the year 1998, he went to Trivendrum for advanced training
through his department for a period of one month. After completion
of training of one month, he was to proceed towards Aurangabad, his
native place, via Nagpur, however, he missed his bus and therefore,
he was standing at the bus stand. At that time, one tempo trax
bearing registration No. MH-31-Z-2760 came there. Claimant sat in
the said tempo trax for going to Aurangabad. On 08.11.1998, at
about 3.00 to 3.30 am on Vadnera-Amravati road, in front of one
factory in Vadnera, said tempo trax met with an accident, in
consequence of which, claimant has sustained injuries on his person.
Said accident was caused due to rash and negligent driving of driver
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of the said vehicle.
b) Thus, the claimant filed claim petition before MACT,
Aurangabad for grant of compensation under various heads.
Respondent No.1-owner of the vehicle resisted the claim petition by
filing his written statement. Respondent No.3-insurer also strongly
resisted the claim petition by filing written statement inter-alia
contending therein that there is clear breach of the policy in view of
admission of claimant in the petition itself, that he paid a fare of
Rs.150/- to the driver of said vehicle jeep.
c) Learned Member of the tribunal, by its impugned judgment and
award, partly allowed the claim petition and thereby directed
respondent Nos. 1 and 3 to pay, jointly and severally, Rs.60,000/- to
the claimant by way of compensation under Section 163-A of the
Motor Vehicles Act, 1988, with interest on the said amount at the rate
of 9% per annum from the date of petition till full payment with
proportionate costs. Aggrieved by the same, the appellant-insurer
(original respondent No.3) has preferred this First Appeal.
3. Learned counsel for the appellant submits that the claimant, as
per his own admission in the pleadings, was traveling on payment of
fare of Rs.150/-, and thus, there is clear breach of terms and
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conditions of polity of insurance. Learned counsel submits that
claimant was traveling by paying fare of Rs.150/- in a private jeep,
and therefore, appellant-insurer is not liable to pay any
compensation. Learned counsel submits that the claimant has filed
application Exh.23 for deletion of the part of his pleading that he was
traveling in the said vehicle by paying fare of Rs.150/-. Learned
counsel submits that the tribunal ought to have rejected the said
application for amendment for deleting the vital admission of
payment of fare of Rs.150/- to the driver of said vehicle for traveling
from Nagpur to Aurangabad. Learned counsel submits that the
tribunal has kept said application Exh.23 for hearing along with main
petition and further, erroneously held that the insurance company
has to prove its defence by adducing independent evidence to the
effect that claimant paid Rs.150/- to the owner of said vehicle jeep.
Learned counsel submits that the claimant has clearly and
unequivocally given admission in his pleadings and the same is the
best evidence against him. Learned counsel submits that the tribunal
ought to have rejected application Exh.23 for amendment as well as
the application Exh.30 for conversion of claim petition from Section
166 to Section 163-A of the Motor Vehicles Act, 1988 (for short, "the
Act of 1988"), particularly after passing and complying the order
under Section 140 of the said Act.
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4. Learned counsel, in order to substantiate his submission,
placed reliance on the decisions in following cases:
1. Thiru John (In C.A. Nos. 1895-1896 of 1974) V.
Subramhamanyan (In C.A. No.1907 of 1974), Appellants
vs. The Returning Officer and others, Respondents,
reported in AIR 1977 Supreme Court 1724 and
2. Oriental Insurance Co. Ltd. vs. Premlata Shukla and
others, reported in (2007) 13 SCC 476.
5. Learned counsel for respondent No.1-original claimant submits
that the claimant has filed an application at Exh.30 for conversion of
his claim petition under Section 163-A of the Act of 1988. Learned
counsel submits that even though the order came to be passed
under Section 140 of the Act of 1988 for "no fault liability", the
claimant has not withdrawn any amount as per "no fault liability"
award passed by the tribunal and before that, he has filed application
Exh.30 for conversion of claim petition under Section 163-A of the
Act of 1988. Learned counsel submits that learned Member, MACT,
Aurangabad has allowed the said application Exh.30 and
accordingly, permitted the claimant to convert the claim petition
under Section 163-A of the Act of 1988. Learned counsel submits
that the tribunal has passed reasoned order in accordance with law.
Learned counsel submits that respondent-original claimant has filed
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application Exh.23, inter-alia contending therein that in paragraph
No. 20-A of the claim petition, due to misunderstanding of the typist,
it is stated as "fare of Rs.150/-" and the same may kindly be
permitted to be deleted, and instead of that, "the claimant was
traveling in tempo trax" is to be added. Learned counsel submits that
the tribunal kept the said application Exh.23 for hearing along with
main petition. Learned counsel submits that the tribunal has further
observed that it is not disclosed whether such type of fare was paid
or not. Learned counsel submits that the claimant has denied about
payment of Rs.150/- as a fare to the driver of the vehicle in his
evidence before the tribunal.
6. Learned counsel submits that original respondent No.1-owner
(respondent No.2 in the present appeal) has also denied in his
written statement about receipt of Rs.150/- as a fare from the
claimant. Learned counsel submits that in this backdrop, it was
necessary on the part of the appellant-insurer to prove independently
its defence about breach of terms and conditions of policy. Learned
counsel submits that the appellant-insurer has failed to discharge the
burden. The tribunal has, therefore, rightly saddled the appellant-
insurer with liability, jointly and severally with the owner of the
vehicle. Learned counsel submits that in view of provisions of
Section 58 of the Indian Evidence Act, though no proof need be
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given of the facts which the parties or their agent agree, in view of
the proviso to Section 58, the court may, in its discretion, require the
facts admitted to be proved otherwise than by such admissions.
Learned counsel submits that in the peculiar facts of the case, it is
the proviso of Section 58 which comes into play and the rights of the
parties are required to be determined de-hors the said admission.
7. Learned counsel for respondent No.1-original claimant, in
order to substantiate his contention, placed reliance on the decision
in the case of Arjun Khiamal Makhijani vs. Jamnadas C. Tuliani
and others, with other connected matter, reported in (1989) 4
Supreme Court Cases 612.
8. Learned counsel for respondent No.2-owner submits that the
claimant has filed application Exh.23 to delete the words "fare of
Rs.150/-" from paragraph No.20-A. Learned counsel submits that,
furthermore, the claimant has not stated on oath before the court in
respect of payment of Rs.150/- towards fare for traveling in the
vehicle owned by respondent No.2. Learned counsel submits that in
absence of any evidence, merely on the basis of admission, it cannot
be accepted that the claimant has paid Rs.150/- as a fare for
traveling in the vehicle. Learned counsel submits that consequently,
there is no breach of the terms and conditions of the policy.
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Learned counsel submits that the expression "breach" is of great
significance. The insurer, thus, will have to establish that the
owner/insured is guilty of infringement or violation of the promise.
Learned counsel submits that unless the owner-insured is at fault
and is guilty of breach, the insurer cannot escape from the obligation
to indemnify the insured. Learned counsel submits that in case of
private vehicle, if a passenger was carried in it and if there is no
pleading and proof that the owner authorized the driver to charge
fare from the passenger and no consent or knowledge or authority of
the owner-insured for such act of the driver, then it is breach of
condition of policy by the driver and a heavy burden lies on the
insurance company to prove such breach. The insurer, therefore,
does not get relieved from its liability to pay compensation. Learned
counsel submits that there is no material evidence to show that the
claimant was traveling as a paid passenger in the jeep with the
knowledge of respondent-owner. Learned counsel submits that the
appellant-insurer has also failed to establish that the owner of the
jeep has authorized or permitted the driver to carry passenger in the
jeep.
9. Learned counsel for respondent No.2, in order to substantiate
his contention, placed reliance on the decision in following two cases:
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1. Skandia Insurance Co. Ltd. vs. Kokilaben
Chandravadan and others, reported in (1987) 2 Supreme
Court Cases 654 and
2. Judgment dated 25.08.2008 delivered by Gujarat High
Court in the case of National Insurance Company vs.
Shabbir Mohmad Kunjada and others. (FA/2030/2008).
10. The claimant has pleaded in paragraph No.20-A of the claim
petition which is reproduced as under :
"20-A. That, the claimant is serving as a Telecom Engineer, at
Vaijapur, Dist. Aurangabad. The claimant further on
submits that, the claimant went to Trivendram for
advance training, through his Department for the period
of one month. The claimant submits that, after
completion of training of one month, he was proceeding
towards his native at Aurangabad via Nagpur. At that
time the bus was missed, therefore, the claimant was
standing on Bus stand. At that time, one white colour
Tempo Trax came there, and they inquired with
claimant, thereafter the claimant seated in that Tempo
Trax and paid the fare of Rs.150/-, at that time the time
was near about 12.00 hours at night."
11. It is thus, clear from the said pleading that the claimant had
gone to Trivendrum for advanced training through his department
and after completion of training, started his return journey to
Aurangabad via Nagpur. He missed his bus and while he was
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waiting in the bus stand, one white colour tempo trax came there. It
appears from the pleadings that the person, who was driving said
tempo trax, rightly found the prospective customer and approached
the claimant. Thereafter, as per the claimant's own pleading, he sat
in the said tempo trax and paid fare of Rs.150/-.
12. The averments made in the pleading, having effect of
admission cannot be permitted to be abandoned without it being
explained by cogent evidence. The claimant has filed application
Exh.23 contending therein that due to rush of work and
misunderstanding of typist, the said averments have been made in
the pleading and thus, sought permission to delete the same.
Learned Member of the tribunal has kept the said application for
hearing alongwith main petition. The claimant has, however, deposed
that he sat in the said tempo trax at Nagpur and the driver and
cleaner were in the trax along with him. He has further deposed that
nothing was paid to the driver of the trax. He has further stated in his
cross-examination that the driver and the cleaner were not related to
him. He has also stated in his cross-examination that the tempo trax
owner came to the bus stand and requested him to go to Akola
through his jeep. He further stated that accordingly, he started his
journey in the said jeep. According to him, the owner is not his
relative. He has further admitted in his cross-examination that as to
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give company to the driver in the journey as per say of the owner he
sat in the said jeep.
13. It is well settled that no kind of evidence can be looked into
upon plea which was never put forward. Intention of the party
concerned is to be gathered, primarily, from the tenor and terms of
his pleadings taken as a whole. In the case in hand, it is difficult to
believe that due to rush of work and misunderstanding of the typist,
the said averments of paying fare of Rs.150/- for travelling in jeep as
a passenger, appeared in the pleading. The ordinary rule of law is
that the evidence is to be given only on a plea raised and not in
contradiction of the plea. The said rule is based mainly on the
principle that no party should be prejudiced by the change in the
case introduced. Thus, in the case in hand, the variance between
the pleading and the proof is necessarily fatal and the appellant-
insurer is substantially prejudiced thereby.
14. Learned Member of the tribunal held the appellant-insurer
liable to pay the compensation on the ground that there may be a
mistake of the advocate while drafting the claim and for that purpose,
the client or litigant could not be suffered. Learned Member of the
tribunal has also observed that whatever stated by the claimant or
drafted by his advocate in his petition about Rs.150/- is of no use to
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the insurance company when the claimant wanted to correct that
mistake committed by his advocate vide filing application Exh.23.
Learned Member of the tribunal has further discarded the said
admission on the ground that now the claimant has converted the
petition under Section 163-A of the Act of 1988. Learned Member of
the tribunal has further observed that though the petition was drafted
as per instructions of the claimant, the claimant has not read the
contents before signing it. Learned Member of the tribunal has also
observed that the claimant has denied the suggestion put to him that
he has paid Rs.150/- as a fare to the owner and further, respondent-
owner has denied in his pleading about receipt of Rs.150/- from the
claimant. Learned Member of the tribunal, on the basis of above
observations, further held that the insurance company has to prove
independently its defence by adducing independent evidence to that
effect that the claimant paid Rs.150/- to the owner of the jeep and the
appellant insurer has failed to discharge the said burden.
15. It appears from the said observations that the tribunal has
made observations about the mistake committed by the advocate
while drafting claim petition when the claimant, neither in his
evidence, nor in his application Exh.23, raised the said point.
Furthermore, the respondent-owner has not examined himself on
oath before the court. Learned member of the tribunal has simply
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relied upon the pleadings of respondent No.1. Learned Member of
the tribunal has conveniently ignored the admissions given by the
claimant in his cross-examination that the owner took the claimant
from bus stand to his jeep and accordingly, the claimant boarded the
said jeep. Furthermore, the tribunal has also not given weightage to
the admission in cross-examination by the claimant that at the
instance of the owner, he boarded the said jeep in order to give
company to the driver in the journey. It is almost clear from the
averments in the pleadings that since the claimant had missed his
bus, he had boarded the said jeep by paying fare. It is pertinent to
note that the respondent-owner has not raised the plea that the driver
of his vehicle charged the fare from the passenger (claimant) without
his consent / knowledge / authority and there is breach of the
condition by the driver. On the other hand, the claimant has admitted
in his cross-examination that the owner was present at the bus stand
and he took the claimant towards the jeep. He has further admitted
in his cross-examination that at the instance of the owner, he had
boarded the said jeep. The pleading binds the parties. The claimant,
in clear words, unequivocally made the averment in the pleadings
that after paying the fare to the driver, he travelled in the said jeep. It
also appears that when the claimant understood the consequences
of his pleading, he tried to abandon the averment made in the
pleading having effect of admission. The claimant has utterly failed
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to explain by cogent evidence and justifiable reasons, that
inadvertently the said averments made in the pleadings having effect
of admission.
16. In view of the above discussion, I proceed to pass the following
order:
ORDER
I. The First Appeal is hereby partly allowed.
II. The impugned judgment and award dated 02.03.2002
passed by learned Member, MACT, Aurangabad in MACP
No. 368 of 2000 is hereby quashed and set aside to the
extent of holding respondent No.3 (appellant-insurer) jointly
and severally liable to pay Rs.60,000/- to the claimant by
way of compensation under Section 163-A of the Motor
Vehicles Act, 1988, along with interest.
Instead, the claim petition is partly allowed and the original
respondent No.1-owner shall pay Rs.60,000/- to the
claimant by way of compensation under Section 163-A of
the Motor Vehicles Act, 1988 with interest on the said
amount at the rate of 9% per annum from the date of
petition till full payment and proportionate costs.
III. The claim petition bearing MACP No. 368 of 2000 is hereby
dismissed as against original respondent No.3-insurer.
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IV. Award be drawn up accordingly.
V. The First Appeal is accordingly disposed of.
VI. In view of disposal of First Appeal, pending civil application
also stands disposed of.
( V. K. JADHAV, J.)
ig ...
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