Bombay High Court
Dr Rameshwar Onkar Tayade vs United India Insurance Company ... on 15 April, 2016
Bench: A.S. Chandurkar
204-FA-236-07 1/9
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
FIRST APPEAL NO.236 OF 2007
Dr Rameshwar s/o Onkar Tayade
Since dead through Legal heirs :
(1a) Abhijeet s/o Rameshwar Tayade,
aged about 35 years, R/o Badi Sabji
Mandi, Behind Co-operative Bank,
Wardha-442001
(1b) Parineeta Jagtap,
aged about 37 years,
C/o Deepak R. Patel,
A Wing, 202-Ashwamedh-II,
Near Samrajya-1, Mujmoda-Akota Road,
Vadodara (Gujrat) ... Appellants.
-vs-
1. United India Insurance Company Ltd.
Through its General Manager,
Branch : Wardha, Tah. & dist. Wardha.
2. Sandhya w/o Rameshwar Tayade,
Aged about 53 years, R/o Ward No.26,
Old Santra Market, Wardha,
Tah. & Dist. Wardha. ... Respondents.
Shri Anand Parchure, Advocate along with Shri Prasad Dharaskar, Advocate
for appellants.
Shri D. N. Kukday, Advocate for respondent No.1.
Shri H. D. Marate, Advocate for respondent No.2.
CORAM : A.S.CHANDURKAR, J.
DATE : April 15, 2016
Oral Judgment :
The appellants who are the legal heirs of the original claimant
204-FA-236-07 2/9
take exception to the judgment of the Motor Accident Claims Tribunal,
Wardha in M.A.C.P No.88 of 2001 being aggrieved by the rejection of the
claim petition filed under Section 166 of the Motor Vehicles Act, 1988 (for
short, the said Act) vide judgment dated 08/12/2006.
2. Facts giving rise to the present appeal are that the respondent
No.2 is the wife of Dr Rameshwar Tayade was the owner of motor vehicle
bearing No.MH-32-B-522. Said Dr Rameshwar Tayade was working as a
Resident Medical Officer. On 30/01/1993 while he was driving the said car
along with one Dr Gohatre, while crossing an unguarded bridge, the car fell
into a stream resulting in injuries to the said Dr Rameshwar Tayade. He
therefore filed a claim petition under Section 166 of the said Act claiming
compensation of Rs.20,00,000/-. The respondent No.1 filed its written
statement below Exhibit-19. It denied the claim for compensation and
pleaded that though the vehicle in question was duly insured, the risk of only
a paid driver was covered. It was also pleaded that the vehicle in question
had a taxi permit and said Dr Rameshwar Tayade who was serving as a
Medical Officer was not the paid driver. It was also pleaded that the said Dr
Rameshwar Tayade himself was responsible for the occurrence of the
accident.
The respondent No.2 did not file any written statement as a result
of which the matter proceeded without her written statement.
204-FA-236-07 3/9
3. On behalf of the claimant, his son was examined below Exhibit-
30 in support of claim for compensation. He deposed that the accident
occurred as the bridge on which the car was passing did not have side guard.
He then deposed about the injuries suffered by his father and the medical
treatment taken him him. In his cross examination, he admitted that the
vehicle was having a taxi permit and though the same was being driven by
his father, he denied the suggestion that the accident occurred due to rash
and negligent driving of his father.
On behalf of respondent No.1, its Development Officer was
examined below-60. He stated that the vehicle in question had a taxi permit
and that premium of Rs.15/- was paid for the driver. The policy was placed
on record at Exhibit-61.
4. The learned Member of the Claim Tribunal after considering the
evidence on record came to the conclusion that the accident occurred due to
the rash and negligent driving by the claimant himself. It was further held
that the appellant was not entitled for compensation as the accident occurred
due to his own fault. It was further held that there was no case made out to
grant compensation in favour of the claimant. Hence by the impugned
judgment dated 08/10/2006, the claim petition came to be dismissed. The
claimant had filed the present appeal. However, during pendency of the
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appeal he expired. His legal heirs are pursuing the same.
5. Shri A. Parchure, along with Shri P. Dharaskar, the learned
counsel for the appellants submitted that the Claims Tribunal was not
justified in dismissing the claim for compensation. It was submitted that the
accident in question occurred as the bridge on which the car was travelling
did not have any side guard. He referred to the spot panchanama at Exhibit-
41 to indicate that the appellant was not at fault for causing the accident. He
relied on the insurance policy at Exhibit-61 and submitted that premium of
Rs.15/- had paid for the driver and premium was also paid for own damage.
It was submitted that as the vehicle was owned by respondent No.2 and was
being driven by her husband, the appellant was entitled for compensation
and same could have been granted by treating him a de facto owner. In
support of his submissions the learned counsel placed reliance on the
judgment of Honourable Supreme Court in Ningamma and anr. v. United
India Insurance Co. Ltd. 2009 ACJ 2020, judgment of learned Single Judge
in Riyana Ishque Kazi and ors. v. Pushpa R. Sheva and anr. 2015(4) ALL
MR 112 and judgment dated 20/02/2016 in F.A. No.377 of 2014 Bandu
s/o Gangaram Zade v. Lilabai Gangaram Zade and ors. It was therefore
submitted that considering the aforesaid, the appellant was entitled for just
compensation.
204-FA-236-07 5/9
6. Shri D. N. Kukday, the learned counsel for respondent No.1
supported the impugned judgment. According to him the claimant himself
being at fault and the same resulting in an accident, the claimant would not
be entitled for compensation. He submitted that the contractual liability of
the Insurance Company would not arise in the present fact especially when
no other vehicle was involved in the accident and the accident occurred as
the vehicle driven by the appellant fell down from the bridge. It was further
submitted that there was no evidence on record to indicate that the appellant
was the paid driver of the vehicle. At the most, he could be treated as having
borrowed the vehicle belonging to his wife. The learned counsel placed
reliance on the following decisions in support of his submissions :
(a) Oriental Insurance Co. Ltd. Etc. v. Hansrajbhai V. Kodala and ors.
Etc. I(2001) ACC 618
(b) New India Assurance Co. Ltd. v. Sadanand Mukhi and ors. 2009
ACJ 998.
(c) Oriental Insurance Co. Ltd. v. Meena Variyal and ors. IV(2007)
ACC 335 (SC)
It was therefore submitted that in absence of any contractual
liability, the appellant was not entitled for any compensation.
7. The following point arises for consideration :
" Whether the claimant is entitled for compensation under
Section 166 of the said Act ? "
204-FA-236-07 6/9
With the assistance of learned counsel for the parties, I have
perused the records of the case and I have gone through the impugned
judgment. The Claims Tribunal after considering the evidence on record
has found that the accident occurred due to the rash and negligent driving of
the claimant himself inasmuch as there was no other vehicle involved in the
accident. In the spot panchanama at Exhibit-41 it was recorded that it was
likely that a vehicle coming from opposite side could not be seen clearly
while crossing the bridge. These observations in the spot panchanama on the
likely cause of accident, cannot be relied and said document has to be used
only for the purpose for which the same was prepared. In absence of any
other evidence on record, this finding recorded by the Claims Tribunal that
the accident was caused due to the rash and negligent driving of the
appellant cannot be disturbed. It is not in dispute that the vehicle in
question was registered as a tourist vehicle having a taxi permit. The policy
at Exhibit-61 indicates that premium of Rs.15/- for a paid driver had been
paid. Premium for own damage had also been paid.
It is the specific case of the claimant that he was working as a
Resident Medical Officer at Wardha. It is not in dispute that the vehicle in
question was registered in the name of respondent No.2. To the specific
specific statement made by the witness examined on behalf of the Insurance
Company that the appellant was not a paid driver, there is no cross
examination. Thus the question that is required to be considered in these
204-FA-236-07 7/9
facts is whether the appellant could be treated to be covered under the policy
of insurance at Exhibit-61 for saddling the liability on the Insurance
Company.
8. If the policy at Exhibit-61 is perused, it can be seen that premium
of Rs.2982/- for own damage (premium on vehicle and non-electrical
accessories), basic premium for public risk of Rs.200/- and legal liability for
the paid driver at Rs.15/- has been paid. In so far as premium for own
damage is concerned, the same would cover only the damage to the vehicle
and with regard to non-electrical accessories. Similarly, the premium for the
paid driver would not cover the husband of the owner of the vehicle who
admittedly was not the paid driver of the vehicle. In Oriental Insurance Co.
Ltd. Vs. Jhuma Saha & ors. 2007 ACJ 818, it was held that in absence of
any additional premium being paid for the risk of death or bodily injury to
the owner of the vehicle, only the third party risk would stand covered.
Thus, from the policy at Exhibit-61, the liability of Insurance Company for
the injury suffered by the claimant would not arise. The claimant was
neither a third party as he himself was driving the car nor was he the paid
driver as he was the husband of the respondent No.2 being employed
elsewhere. The finding of the Claims Tribunal in that regard is therefore
liable to be upheld.
204-FA-236-07 8/9
9. In so far as the claim for compensation is concerned, it is to be
noted that the same was made under Section 166 of the said Act. It is well
settled that in proceedings under Section 166 of the said Act, the burden is
on the claimant to establish the negligence of the driver or owner of the
vehicle concerned. Reference in this regard can be made to the observations
in paragraph 24 of the judgment in Oriental Insurance company Ltd. Vs.
Meena Variyal and ors. (supra) wherein it has been observed thus :
24. ... Therefore, the victim of an accident or his dependants have an
option either to proceed under Section 166 of the Act or under Section
163A of the Act. Once they approach the Tribunal under Section 166 of
the Act, they have necessarily to take upon themselves the burden of
establishing the negligence of the driver or owner of the vehicle concerned.
But if they proceed under Section 163A of the Act, the compensation will
be awarded in terms of the Schedule without calling upon the victim or
his dependants to establish any negligence or default on the part of owner
of the vehicle or the driver of the vehicle."
10. The finding in this regard that has been recorded by the Claims
Tribunal is that the claimant himself was rash and negligent and on that
account, the accident had occurred. The Insurance Company cannot be
saddled with liability for the rash and negligent driving on the part of the
claimant himself.
11. The decisions relied upon by the learned counsel for the
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appellants are clearly distinguishable and not applicable to the facts of the
case. In Ningamma and anr. (supra) the claim for compensation was under
Section 163A of the said Act. In paragraph 25 thereof, it has been observed
that even if in the pleadings no specific claim was made out for grant of
compensation, same has to be granted considering the spirit of Section 166
of the said Act subject to a case under the provisions of law being made out.
In the present case, it has been found that no such case has been made out.
Similarly, the decision in Riyana Ishaque Kazi and ors. (supra) is with
regard to proceedings under Section 163A of the said Act. The present is a
case arising under Section 166 of the said Act. The decision in Bandu Zade
(supra) proceeds on the basis that premium for personal accident cover had
been paid. On that basis the proceedings were remanded for determining the
quantum of compensation. In the present case, the policy at Exhibit-61
does not cover the risk in question. Hence, these judgments cannot come to
the aid of the appellants.
From the aforesaid therefore, it cannot be said that the Claims
Tribunal committed any error in rejecting the claim for compensation. The
respondent No.1 cannot be saddled with the liability to pay compensation.
The first appeal stands dismissed. The judgment of the Claims Tribunal
stands confirmed. There would be no order as to costs.
JUDGE
Asmita
