Bombay High Court
Raufkhan Usmankhan Pathan & Anr vs Namdeo Maroti Bhusal & 2 Ors on 27 April, 2016
Bench: V.K. Jadhav
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 41 OF 1994
1. Raufkhan Usmankhan pathan,
Age 22 years, Occ. Driver,
R/o. Girgaon now at Basmathnagar
2. Shabbir Ahmed s/o Sagir Ahmed,
Age 40 years, Occ. Business
and Agri. R/o. Basmath ...Appellants
versus
1. Namdeo s/o Maroti Bhusal,
Age 45 years, Occ. Labourer
R/o. Basmathnagar,
2. Radhabai w/o namdeo Bhusal,
Age 40 years, Occ. Agri.
R/o. Basmathnagar,
3. United India Insurance Company,
through its Branch manager at
Parbhani, Station Road,
Parbhani. ...Respondents.
.....
Mrs. A.N. Ansari, advocate for the appellants.
Mr. M.G. Biradar, h/f Mr. P.R. Katneshwarkar, advocate for respondent
nos. 1 and 2
Mr. V.R. Mundada, advocate for respondent No.3.
.....
CORAM : V. K. JADHAV, J.
DATED : 27th APRIL, 2016
ORAL JUDGMENT:-
1. Being aggrieved by the judgment and award passed by the
Member, M.A.C.T. Parbhani dated 21.7.1993, the original respondent
Nos. 1 and 2-driver and owner of the vehicle, respectively, preferred
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this appeal to the extent that the Tribunal has erroneously
exonerated respondent No.3 insurer from the liability to pay
compensation jointly and severally with them.
2. Brief facts, giving rise to the present appeal, are as under:-
a) On 31.12.1989 at about 10.30 p.m. deceased Dilip was
riding his bicycle to the field of his master which is situated on
sugar factory road. On way, the vehicle jeep bearing
registration No. MXV 8312 came from sugar factory to Basmat
in speed and gave a dash to the bicycle of deceased Dilip. At
that time, respondent No.1 was driving the said jeep in rash
and negligent manner. In consequence of which, deceased
Dilip had sustained multiple injuries. He was immediately
shifted to Basmat and thereafter to Civil Hospital at Nanded.
However, he succumbed to the injuries in the hospital. The
legal representatives of deceased Dilip preferred M.A.C.P. No.
24 of 1990 for grant of compensation under various heads.
Respondent No.2 has strongly resisted the claim by filing
written statement. It has contended that respondent No.1 was
driving the said jeep in moderate speed and deceased Dilip
was responsible for the accident. It has further contended that
vehicle involved in the accident is insured with respondent No.3
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and therefore, respondent No.3 insurer is liable to pay the
compensation. Respondent No.3 insurer has also strongly
resisted the claim by filing written statement at Exh.21. The
claim petition was resisted on the ground that at the time of
accident the said vehicle jeep was being used for carrying
passengers on hire basis and therefore, there is limitation to
use the vehicle and it can be used only for social domestic and
pleasure purposes and policy does not cover the use of said
vehicle for hire or reward. The respondent No.3 insurer has
disowned the liability on that count alone. The learned Member
of the M.A.C.T. Parbhani by its impugned order dated
21.7.1993 held respondent Nos. 1 and 2 jointly and severally
liable to pay the compensation of Rs.54,400/- to the claimants
with interest @ 12% p.a. from the date of application till
realization of entire amount and the claim petition against
respondent No.3 insurer is dismissed.
b) Being aggrieved by the same, to the extent of
exonerating respondent No.3 insurer from the liability to pay
compensation, the respondents owner and driver preferred this
appeal.
3. Learned counsel for the appellants submits that the appellant
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owner of the jeep has examined himself on oath before the tribunal
and deposed that the jeep involved in the accident was not given on
hire. After accident, crime was registered in the concerned police
station and after due investigation, charge sheet was submitted
against driver of the jeep. No charges under Motor Vehicles Act are
levelled against driver for carrying out passengers on hire basis in
the private jeep. The respondent No.3 insurer has not adduced any
oral or documentary evidence to substantiate its contentions.
Learned counsel submits that in other way also deceased Dilip was
riding bicycle at the time of accident and there is no question of
breach of policy condition as such. So far as the death of Dilip is
concerned, risk against his death is covered under third party policy
and there is no breach of condition of policy. Learned counsel
submits that there is nothing at all to indicate that plying of jeep on
road is in violation of condition of permit and therefore, there is
breach of policy condition.
4. Learned counsel for respondent insurer submits that the
vehicle was on road by violating the policy conditions and said
vehicle was being used on hire basis. Learned counsel submits that
there has been breach of condition of policy and therefore, the
Tribunal has exonerated respondent No.3 from liability to pay the
compensation.
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5. I have also heard the learned counsel appearing for the
respondent claimants.
6. The respondent insurer has raised objection that in view of
breach of policy conditions, the respondent insurer is not liable to pay
the compensation. On the other hand, the appellant owner of the
vehicle examined himself on oath before the tribunal and stated on
oath that he used to carry household articles in the jeep for
household and agriculture work. In the cross examination, he has
further stated that the accident had taken place when the jeep was
returning from his agricultural field towards Basmat. It also appears
from the police papers that the charges are not levelled against driver
of the jeep for using the private jeep on hire basis for carrying out
passengers. Respondent No.3 insurer has not adduced any oral or
documentary evidence to substantiate its contentions. Otherwise
also, deceased Dilip was riding bicycle and the risk of his death is
covered under third party policy issued by the respondent insurer. In
absence of any evidence adduced by respondent No.3 insurer, it
appears that the Tribunal has committed mistake in exonerating the
respondent insurer from liability to pay compensation jointly and
severally alongwith the appellants owner and driver.
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7. At this stage, learned counsel appearing for respondent No.3
insurer submits that the Tribunal has awarded compensation with
interest at the rate of 12% p.a. and the same is excessive. The
accident had taken place in the year 1989 and claim petition was
decided in the year 1993. Learned counsel submits that if in the year
2016, liability is to be fastened on the respondent insurer, then
unnecessarily respondent insurer will have to pay interest at such
excessive rate. In view of the above submissions, following order
would meet the ends of justice.
ORDER
I. The appeal is hereby partly allowed.
II. The judgment and award dated 21.7.1993 passed by the
Member, M.A.C.T. Parbhani in M.A.C.P. No. 24 of 1990
is hereby quashed and set aside to the extent of
dismissal of claim petition as against respondent No.3
insurer.
III. The judgment and award dated 21.7.1993 passed by the
Member, M.A.C.T. Parbhani in M.A.C.P. No. 24 of 1990
is hereby modified in the following manner:-
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"Respondent Nos. 1 to 3 are jointly and severally liable to
pay amount of Rs.54,400/- (Rupees Fifty four thousand
four hundred only) to the claimants with interest @ 7.5%
p.a. from the date of application till realization of entire
amount."
IV. Rest of the judgment and award stands confirmed.
V. The award be drawn up in tune with the modified award,
as aforesaid.
VI. The appeal is accordingly disposed. No costs.
VII. The amount of Rs.25,000/- deposited at the time of
granting stay by the owner of the vehicle to be returned
to the owner since the Insurance company is held liable
for payment of compensation.
( V. K. JADHAV, J.)
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