Bombay High Court
Icici Lombard General Insurance ... vs Mainuddin Nahnusab Shaikh And ... on 22 April, 2016
Bench: P.R. Bora
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1 FA NO.2896/2015
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO.2896 of 2015
ICICI Lombard General
Insurance Company Ltd.,
Through it's Legal
Manager at Adalat Road,
Aurangabad.
...APPELLANT
ig (Ori.Respondent no.2)
VERSUS
1. Mainuddin s/o Nahnusab Shaikh,
Age 53 yrs. Occ. Labour at present nil
r/o Hadoli Tq.Nilanga,
at present r/o Sambhaji Nagar,
Latur.
...ORI.CLAIMANT
2. Balaji Manohar Mane,
Age 49 yrs occ. Agri. And Business
r/o Hadoli, Tq.Nilnga,
Dist.Latur.
...RESPONDENTS
(Ori.Resp.No.1)
...
Mr. A.G.Choudhari, Advocate for the appellant.
Mr. R.P.Adgaonkar, Advocate for respondent no.1.
Mr. V.B.Jadhav, Adv., for respondent no.2.
...
CORAM: P.R.BORA, J.
***
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This Order is modified/corrected by Speaking to Minutes Order dated 25/04/2016
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Date of reserving the judgment: 31/3/2016
Date of pronouncing judgment: 22/4/2016
***
JUDGMENT:
1. The judgment and award passed in MACP
No.17/2011, by the Motor Accident Claims Tribunal
(hereinafter referred to as `the Tribunal' ), at Nilanga, is
questioned in the present appeal by respondent no.2 Insurance
Company therein.
2. Present respondent no.1 had filed the aforesaid
claim petition claiming compensation on account of the injuries
caused to him and the consequent permanent disablement
incurred by him because of the said injuries in a motor accident
happened on 22nd December, 2009, having involvement of a
tractor bearing registration No.MH-24-D-5265 owned by
present respondent no.2 and insured with the present appellant
claiming compensation of Rs.1,00,000/- ( Rs. one lac ).
Respondent no.1 is, hereinafter, referred to as the claimant.
It was the contention of the claimant before the Tribunal that
the aforesaid tractor gave dash to him and in an accident so
happened, he sustained several injuries including fractures.
The claimant had alleged that the accident in question
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happened because of rash and negligent driving of the driver of
the said tractor. It was the further contention of the claimant
that he was required to spend huge amount on his treatment
and he suffered 73 per cent disablement because of the injuries
caused to him in the alleged accident. It was the further
contention of the claimant that because of the injuries caused
to him, and the disablement incurred by him, he has totally lost
his earning capacity. The claimant had assessed the amount
of compensation to the tune of Rs.8,25,000/-, however, he
restricted his claim for Rs.1,00,000/- (Rs.one lac) for payment
of Court fees.
3. The claim was proceeded ex parte against
respondent no.1 i.e. the owner of the tractor. Respondent
no.2 i.e. the present appellant did resist the petition on several
grounds. It was the contention of the appellant / respondent
no.1 that the driver of the offending tractor was not holding a
valid driving license on the date of the accident. Further, an
objection was also raised by appellant / respondent no.1 that
the offending tractor was being used at the relevant time for
commercial purpose. According to respondent no.1 Insurance
Company, the owner of the tractor had thus committed breach
of the policy conditions by using the tractor for commercial
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purpose and by allowing a person not holding valid driving
license to drive the tractor. Respondent no.1 had also
disputed the percentage of disablement incurred by the
claimant and the medical expenses allegedly incurred by him.
4. The claimant deposed before the Tribunal and
examined two more witnesses in order to support the
contentions raised by him in his petition. The claimant
examined an employee from M/s Alpha Super Speciality, Latur,
to prove the medical expenses incurred by him and also
adduced evidence of Dr.Sudhakar Gulve to prove the nature of
injuries caused to him and the permanent disablement incurred
by him because of the said injuries. Respondent no.2
Insurance company had also examined its Legal Officer,
namely, Ravi Dilip Nalawade to substantiate the contentions
raised in its written statement. Learned Tribunal, after having
assessed the oral and documentary evidence brought before it,
partly allowed the claim petition and held the claimant entitled
to receive the compensation to the tune of Rs.1,70,000/- jointly
and severally from the owner and insurer of the tractor i.e.
respondent no.1 and appellant herein.
5. Aggrieved by the said judgment and award, the
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Insurance company has filed the present appeal. Shri
A.G.Choudhari, learned Counsel appearing for the appellant,
submitted that the learned Tribunal has grossly erred in
recording a finding that the Insurance Company has failed in
proving the breach of the terms and conditions of the Insurance
policy by the insurer. Learned Counsel further submitted that
the learned Tribunal has failed in considering that the Insurance
Company had issued notice to the insured under Section 134(c)
of the Motor Vehicles Act calling upon the insured to furnish
necessary documents and information. Learned Counsel
further submitted that from the evidence on record it is clearly
established that the offending tractor was being used at the
relevant time for commercial purpose and, as such, the
Insurance Company was not liable to indemnify the insured.
In order to substantiate his arguments, learned Counsel has
relied upon the judgment of the Honourable Apex Court in the
matter of National Insurance Co.Ltd Vs. Swaran Singh and
ors ( AIR 2004 SC 1531) and in the case of Oriental
Insurance Company Ltd. Vs. Brij Mohan ( (2007) 7 SCC
56 ).
6. Shri R.P. Adgaonkar, learned counsel for respondent
no.1, i.e. original claimant, supported the impugned judgment
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and award. Learned Counsel submitted that, in any case, the
Insurance Company was liable to pay the compensation to the
claimant. Learned Counsel relied upon the judgment of the
Honourable Apex Court in the case of Pepsu Road Transport
Corporation Vs. National Insurance Company ( (2013) 10
SCC 217). Shri Jadhav, learned Counsel appearing for
respondent no.2 also supported the impugned judgment and
award and submitted that no interference is called for in the
said judgment and award.
7. The appellant has challenged the impugned
judgment and award mainly on the ground that since owner of
the offending tractor had committed breach of the policy
conditions, the appellant Insurance Company was not liable to
indemnify the insured and as such, the Tribunal ought not have
held the Insurance Company jointly and severally liable to pay
the amount of compensation to the claimant. According to the
appellant, breach of the policy conditions allegedly committed
by the Insurer was on two counts; first, that the driver of the
offending tractor was not holding valid driving license on the
date of the accident and the second that the offending tractor
was being used at the relevant time for the commercial purpose
when the policy was purchased stating the use of the said
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tractor for agricultural purpose.
8. It was sought to be canvassed by Shri
A.G.Choudhari, learned Counsel appearing for the appellant
Insurance Company that the driver of the offending tractor was
prosecuted in relation to the accident in question for an offense
under Section 3/181 of the Motor Vehicles Act along with the
other I.P.C. offenses which means that he was not holding valid
driving license at the relevant time. As such, according to the
learned Counsel, no other proof was required to prove that the
driver of the offending tractor was not holding valid driving
license at the relevant time and the onus was on the owner of
the tractor to prove that his tractor was being driven by a
person having valid driving license in his name. As was
submitted by Shri Choudhari, appellant insurance Company had
duly issued notice to the owner of the tractor under Section
134(c) of the Motor Vehicles Act to produce all relevant
documents and since the owner of the tractor did not produce
the same, adverse inference was liable to be drawn against the
owner of the tractor and no liability could have been fastened
against the appellant insurance company.
9. However, if the evidence before the Tribunal is
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perused, it reveals that the appellant Insurance Company had
failed in proving that the notice allegedly sent by it to the
owner of the tractor calling upon him to produce on record the
relevant documents was, in fact, served on him. What is filed
on record by the appellant Insurance Company is the office
copy of the said notice, however, there is no evidence on record
to show that the said notice was served on the insurer. Shri
Ravi Nalawade, Legal Officer, examined by the appellant
Insurance Company before the Tribunal has admitted in his
cross examination that there was no documentary evidence on
record to show that the notice to insured was sent by
Registered Post Acknowledgment Due nor there was an
acknowledgment on record to show that the notice was duly
served on the insured. In the circumstances, the learned
Tribunal has rightly recorded conclusion that merely because
the driver of the offending tractor was also prosecuted for an
offense under Section 3/181 of the Motor Vehicles Act, no such
conclusion can be drawn that the driver of the offending tractor
was not holding valid and effective license on the date of the
accident. The Tribunal has further rightly held that the
insurance company has failed in proving that any notice was
served upon the owner of the tractor calling upon him to furnish
relevant documents on record. I do not see that the Tribunal
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has committed an error in recording the finding as above.
In so far as the other objection raised by the appellant
that the vehicle was being used for commercial purpose is
concerned, as observed by the learned Tribunal in paragraph
no.14 of its judgment, the evidence of the witness examined by
the Insurance Company before the Tribunal is totally silent on
the point. The Insurance Company has thus failed in proving
that the offending tractor was being used at the relevant time
for commercial purpose.
ig The Tribunal has further discussed
as to how the contention raised by the Insurance Company
cannot be accepted that the vehicle was being used for
commercial purpose. It appears to me that the reasons noted
therefor by the Tribunal are sound and do not require any
interference. The observations made and the conclusions
recorded in the judgment relied upon by the learned Counsel
for the appellant do not in any way support the contentions
raised by the appellant in the facts of the present case.
10. After having considered the material on record, it
does not appear to me that any interference is required in the
impugned judgment and award. The appeal is devoid of any
substance. In the result, following order:
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ORDER
a) The First Appeal is dismissed with costs.
(P.R.BORA)
JUDGE
...
AGP/2896-15fa
