Bombay High Court
National Insurance Co. Ltd vs Tatyaba Balaji Dange And Another on 22 April, 2016
Bench: P.R. Bora
1282-13 fa.doc
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 1282 OF 2013
National Insurance Co. Ltd.
Trhough it's Divisional Manager,
Aurangabad Divisional Office,
Hazari Chembers, Station Road,
Aurangabad. .. APPELLANT
(Orignal Opp.No.2)
VERSUS
1. Tatyaba Balaji Dange
Age: 53 years, Occ: Service & Dairy
R/o Dahegaon, Tal. Rahata,
Dist. Ahmednagar.
ig ..Respondent No.1
(Ori. Claimant)
2. Vishnu Bansilal Sarda
Age: 50 years, Occ: Household,
R/o Sada Galli, Ahmednagar,
Dist. Ahmednagar. ..Respondent No.2
(Orig. Opp. No.1)
...
Mr. Atul B. Gatne,Advocate for Appellant;
Mr. S.S. Chapalgaonkar, Advocate for Respondent No.2
...
CORAM : P.R. BORA, J.
Dated: April 22, 2016
...
ORAL JUDGMENT :-
1) With consent of the parties, present appeal is taken
up for final hearing at admission stage.
2) The only exception taken in the present appeal to
the Judgment and Award is that, the Tribunal has not considered
the objection raised by the appellant / Insurance Company that,
driver of the offending Maroti van was not holding a valid and
effective driving license on the date of accident.
3) Mr. A. B. Gatne, learned Counsel appearing for
the appellant / Insurance Company brought to my notice
that, in para 10 of its written statement, the appellant /
Insurance Company had raised a specific objection in that
regard and as such, in fact, the Tribunal was supposed to
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frame an issue in that regard. Learned Counsel submitted
that, even if, specific issue was not framed, the Tribunal
ought to have taken in account the defence so raised by
the Insurance Company while determining its liability to pay
compensation. Learned Counsel further submitted that, in
order to substantiate the defence raised in its written
statement, the Insurance Company had examined the
witness by name Avinash Manohar Ganorkar, an employee
from the office of R.T.O. Ahmednagar, however, learned
Tribunal has completely ignored the said evidence while
holding the Insurance Company liable for paying the
amount of compensation jointly or severally with the owner
of the vehicle. Learned Counsel submitted that, in such
circumstances, matter needs to be remanded back to the
Tribunal so as to decide the said aspect by giving
opportunity to the parties to adduce any further evidence if
they so desire.
4) Mr. Chapalgaonkar, learned Counsel appearing
for opponent No.1 i.e. owner of the vehicle was fair in
submitting that, the Tribunal ought to have framed a
specific issue in view of the objection raised by the
Insurance Company in respect of the driving license of the
driver of the offending vehicle Maroti van.
5) Perusal of the written statement by the
appellant Insurance Company before the Tribunal shows
that, it had raised a specific objection that, the driver of the
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offending Maroti van was not holding a valid and effective
driving license on the date of accident. The Insurance
Company has then raised a further plea that, since the
owner of the Maroti van had committed breach of policy
condition by allowing the person not holding a valid driving
license to drive his Martoti van, the Insurance Company
was exonerated from its liability to indemnify the insured.
It is further not in dispute that, the Insurance Company
examined the witness by name Avinash Manohar Ganorkar,
an employee from the office of R.T.O. Ahmednagar to
substantiate its defence in respect of not holding a valid
driving license by the driver of the offending Maroti van.
The learned Tribunal has admittedly not framed any issue
though there was a specific objection raised by the
Insurance Company about the non holding of the valid
driving license on the date of accident by the driver of the
offending Maroti van. The Tribunal has further not even
referred to the evidence of the witness examined by the
Insurance Company on the said point. It was obligatory on
the part of the Tribunal to frame the issue in view of the
defence taken by the Insurance Company and to decide the
same. Even if it is accepted that, the Insurance Company
was liable to pay the amount of compensation to the victim
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of the accident, he being a third party framing of the issue
on the point and its adjudication was must so as to decide
the inter-say liability between the owner and the offending
Maroti van and the Insurance Company.
6) In the above circumstances, it appears
necessary to remit back the matter to the Tribunal with a
direction that, it shall frame a specific issue in respect of
the objection raised by the Insurance Company about non
holding of the valid driving license on the date of the
accident by the driver of the offending Maroti van, and
whether it amounts to a breach of policy conditions by the
insured, and decide the same by giving due opportunity to
the Insurance Company as well as the insured to adduce
the necessary oral and documentary evidence in support of
their respective contentions. Needless to state that, on the
basis of the finding, which may be recorded by the Tribunal
on the aforesaid issue, the Tribunal may suitably modify the
order and may pass further order, if any. It is ordered
accordingly.
The Record and Proceedings be sent back to the
Tribunal forthwith. After receiving the record, the Tribunal
shall expeditiously complete the adjudication on the
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aforesaid issue and pass the necessary orders
expeditiously, preferably within four months.
7) The appeal is allowed in the aforesaid terms.
Pending Civil Application stands disposed of.
(P.R. BORA)
JUDGE
...
S.P.Rane
