Bombay High Court
United India Insurance Company ... vs Arjun Peeraji Bansode And Others on 20 April, 2016
Bench: P.R. Bora
1 FA NO. 1643/2013
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO.1643 OF 2013
United India Insurance Company Ltd.,
Through its Divisional Office,
Divisional Manager,
Ahmednagar ..APPELLANT
(Orig. Respondent No.3)
VERSUS
1. Arjun S/o Peeraji Bansode,
Age : 55 years, Occu.: Nil,
R/o Paregaon Gadakh,
Tq. Sangamneir, Dist: Ahmednagar.
2. Sau. Ashabai W/o Sanjay Bansode,
Age : 28 years, Occu.: Nil,
R/o Walaki, Tq. Rahata
Dist: Ahmednagar.
3. Abbas S/o Sanjay Bansode,
Age : 7 yrs, Occu.: education,
R/o Walaki, Tq. Rahata
Dist: Ahmednagar.
4. Ganesh S/o Sanjay Bansode
Age : 5 yrs. Occu.: Education,
R/o Walaki, Tq. Rahata
Dist: Ahmednagar.
Resp Nos. 3 & 4 are minors &
U/g of resp no.2 who is real
Mother of them. R/o as above
& summons be served through
Respondent no.2
5. Balasaheb S/o Bhimrao Tilakhe
Age : major, Occu.: business,
R/o:Dongar pimpla, Tq. Gangakhed,
Dist: Parbhani (vehicle owner)
6. Raghunath S/o Ramrao Tilakhe,
Age : major, Occu.: driver,
R/o Dongar pimpla, Tq. Gangakhed,
Dist: Parbhani (vehicle driver) ..RESPONDENTS
(R.No. 1 to 4 Orig. Claimants,
R. No. 5 and 6 are Orig. resp)
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2 FA NO. 1643/2013
...
Mr. Sudhir V. Kulkarni, Advocate for Appellant;
Mr. K.N. Shermale, Advocate for Respondent Nos.1 to 4
...
CORAM : P.R.BORA, J.
DATE : 20th April,2016.
ORAL JUDGMENT :
1) The Insurance Company has filed the present
appeal, taking exception to the judgment and award passed
by the Motor Accidenct Claims Tribunal at Sangamneir, Dist.
Ahmednagar on 13.09.2015 in MAC Case No.87/2006. The
only objection raised by the Insurance Company is that, the
Tribunal ought not have saddled any liability on the Insurance
Company and ought not have passed an order directing the
Insurance Company to first pay the amount of compensation
and then to recover the same from the insured.
2) Mr. S.V.Kulkarni, the Learned Counsel appearing
for the appellant Insurance Company submitted that, at the
time when alleged accident happened around twelve
passengers were travelling through Jeep. Learned Counsel
submitted that, the offending vehicle was goods carrying
vehicle, in which only two persons were allowed to travel.
Learned Counsel further submitted that, the Insurance
Company has sufficiently proved before the Tribunal that, at
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3 FA NO. 1643/2013
the relevant time, the owner of the said Jeep had given the
Jeep on hire and that total twelve passengers were travelling
from the said Jeep, when the accident happened. According
to the learned Counsel, this was a clear breach of the terms of
policy condition, and as such, the Insurance Company was not
liable to indemnify the insured. Learned Counsel, therefore,
prayed for setting aside the impugned Judgment and Award so
far as it relates to direction given to the appellant Insurance
Company to pay to the claimants the amount of compensation
at the first instance and then to recover the same from the
insured.
3) Mr. K.N.Shermale, the learned Counsel appearing
for the original claimants resisted the submissions advanced
on behalf of the appellant / Insurance Company. The learned
Counsel brought to my notice that, at the relevant time,
deceased Sanjay was proceeding on his motorcycle and was
dashed by the offending Jeep. Learned Counsel submitted
that, it was the specific contention of the claimants before the
Tribunal that, the driver of the said Jeep was rash and
negligent in driving the Jeep, which ultimately resulted in
occurrence of the alleged accident. Learned Counsel
submitted that, deceased Sanjay was not the occupant of the
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4 FA NO. 1643/2013
said Jeep or the employee on the said Jeep. As such,
according to learned Counsel, the objections raised by the
Insurance Company are irrelevant.
4) On perusal of the material on record there appears
substance in the argument advanced on behalf of the original
claimants. How many passengers were being carried in the
offending Jeep at the relevant time or whether any other term
of policy condition was breached by the insured of the said
Jeep has nothing to do with the death of deceased Sanjay
Bansode in the alleged accident. Admittedly, deceased
Sanjay was proceeding on his motorcycle and was dashed by
the driver of the offending Jeep. Deceased Sanjany was
neither the occupant in the said Jeep, nor was employed as a
driver or a cleaner on the said Jeep so as to enable the
Insurance Company to take a defence that, deceased was not
a third party so as to cover his risk. Admittedly, deceased
Sanjay was a third party and when insurance policy was in
force, the Insurance Company was liable to cover the risk and
to pay the amount of compensation to the legal
representatives of accused Sanjay.
5) Further, from the material on record, it is quite
clear that, the appellant Insurance Company has not brought
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5 FA NO. 1643/2013
on record any such evidence and has not proved that the
insured was guilty of negligence and failed to exercise
reasonable care in the matter of fulfilling of the condition of
the policy regarding the use of the offending vehicle. It is
further not the case of the appellant Insurance Company that,
the breaches alleged by the appellant Insurance Company on
part of the insured have contributed to the cause of accident.
The appellant Insurance Company has thus, failed in making
out any case for causing interference in the impugned
Judgment and Award. The appeal is devoid of any substance.
In the result the following order.
ORDER
a) The appeal is dismissed with Costs.
(P.R.BORA)
JUDGE
SPR
