Bombay High Court

Amjad Asifoddin Kazi vs Salauddin Rasuloddin Sayyed And ... on 29 August, 2016

Bench: P.R. Bora

                                             1                      FA No. 799/2014

            IN THE HIGH COURT OF JUDICATURE OF BOMBAY




                                                                             
                       BENCH AT AURANGABAD

                           FIRST APPEAL NO.799 OF 2014 




                                                     
      Amjad Asifoddin Kazi,
      Ag: 24 yrs., occu. Service,
      R/o Bodh Vardhini School,




                                                    
      Jogai Wadi, Tq. Ambajogai,
      District Beed.                                  =    APPELLANT
                                                       (Orig. Claimant)

               VERSUS




                                      
      1)       Salauddin Rasuloddin Sayyed
                             
               Age:Major, occu.Business.
               R/o Gandhi Nagar, Ambajogai,
               District Beed.
               (Owner of Travel Bus)
                            
      2)       The New India Assurance Co.
               Ltd. Through its
               Branch Manager,
               Opp. Shahu College, Latur.             =        RESPONDENTS 
      


                                   -----
   



      Mr.Vivek V.Bhavthankar, Advocate for Appellant;

      Respondent No.1 served;
      Mr.MM Ambhore, Advocate for Respondent No.2.





                                       -----
                                   CORAM :  P.R.BORA, J.

DATE :

29 th

August,2016.

ORAL JUDGMENT:

1) Heard. Admit. By consent of the learned

Counsel appearing for the parties, taken up for

final disposal. The appellant has filed the

present appeal against the Judgment and Order

passed by the Motor Accident Claims Tribunal,

Latur (for short, the Tribunal) in MACP No.

270/2009 decided on 23rd October, 2013.

2) The aforesaid claim petition was filed

by the appellant seeking compensation on account

of the injuries sustained by him in a vehicular

accident having involvement of a school bus

bearing Registration No. MH-01-5888 insured with

Respondent No.2-insurance company.

3) The Tribunal has awarded the

compensation amounting to Rs.1,25,915/- to the

appellant from Respondent No.1 i.e. owner of the

school bus and has exonerated the insurance

company from its liability and has dismissed the

claim as against the insurance company. The

present appeal is filed challenging the dismissal

of the petition against the insurance company.

4) Shri Bhavthankar, learned Counsel

appearing for the appellant, submitted that for

proving the liability of the owner as well as the

insurance company, the appellant has adduced

sufficient and cogent evidence on record. The

learned Counsel submitted that Deputy RTO was

examined by the appellant and in his evidence the

Deputy RTO has stated that the offending vehicle

was permitted to be used for carrying the

passengers since commercial tax was recovered

from the said vehicle.

. The learned Counsel further submitted

that in the other claim petitions filed by some

other claimants, arising out of the same

accident, which were decided by the other Member

of the Tribunal, the insurance company has been

held liable jointly and severally along with the

owner of the vehicle to pay the amount of

compensation to the respective claimants in the

said claim petitions and the insurance company

has not preferred any appeal against the said

decision; on the contrary, has satisfied the

Award passed in the said matter.

5) The appellant has placed on record a

copy of one of such judgments in MACP No.10 of

2009 decided on 24th February, 2010. The learned

Counsel submitted that the Tribunal has grossly

erred in the present matter in exonerating the

insurance company from its liability on some

erroneous reasons. The learned Counsel submitted

that the evidence on record, more particularly as

regards to the commercial use of the vehicle, has

not been considered by the Tribunal, which has

resulted in passing the incorrect order. The

learned Counsel, therefore, prayed for holding

the insurance company also liable for payment of

compensation along with the owner of the school

bus and accordingly to modify the impugned Award.

6) Respondent No.1 though has been duly

served, has not entered his appearance.

7) Shri Ambhore, learned Counsel appearing

for the insurance company, supported the impugned

judgment and inviting my attention to the

discussion made by the Tribunal in Para 33

thereof, submitted that the Tribunal has rightly

exonerated the insurance company from its

liability. The learned Counsel submitted that

the insurance company has also adduced the

evidence in the matter and has examined an

official from the RTO office so as to bring on

record that the offending vehicle could not have

been used for carrying the passengers and

carrying of the passengers in the said bus

amounted to breach of policy conditions. The

learned Counsel, therefore, prayed for dismissal

of the appeal.

8) I have considered the submissions

advanced on behalf of the respective parties. I

have also perused the impugned judgment and the

record of the case and more particularly the

evidence adduced in the matter. The appellant

had examined one Rajabhau Trimbak Jine, as his

witness, who was, at the relevant time, working

as Deputy RTO at Latur and was In-charge of

Deputy RTO at Ambejogai. The said witness has

deposed that the road tax of Rs.7,424/- was

received to the office of Dy. RTO, Ambejogai. The

said witness has further deposed that the road

tax, as aforesaid, was levied for the commercial

use of the offending vehicle. In the cross-

examination, the said witness has, however,

admitted that the permit for operating the

aforesaid bus was restricted for carrying the

students in Ambejogai city. The said witness has

further admitted that the passengers could not

have been carried from Latur to Ambejogai in the

said mini bus.

9) The insurance company has also examined

a Junior Clerk from the office of Deputy RTO, at

Ambejogai in order to substantiate the defence

taken by it. During the course of his evidence

the said junior clerk, viz. Chandralok Suryabhan

Waghmare, produced an extract of registration

particulars of the offending bus (Exhibit-46).

The said witness in his cross-examination on

behalf of the claimants, admitted that at the

relevant time, different amounts of tax were

prescribed by the Government, based on the type

of the vehicle. The said witness has further

admitted that the owner of the offending school

bus had paid the tax of Rs.11,140/- on 28 th

August, 2008 for the next three months. The said

witness has further admitted that he was unable

to tell as to how much tax at the material time

was being levied for the public service vehicles

and for contract carriage vehicle.

10) After having gone through the evidence

of aforesaid two witnesses, it appears to me that

the learned Tribunal has failed in properly

appreciating the evidence so brought on record.

Though it was the case of the insurance company

that at the relevant time, the said bus was being

used for carrying the students and was only

permitted to be used as a school bus, the

evidence on record appears short in establishing

the said fact.

11) The learned Counsel appearing for the

appellant, i.e. original claimants, has today

tendered across the Bar a copy of the Insurance

policy along with the documents, which contain

the copy of permit in respect of the offending

bus bearing Registration No. MH-01-H-5388. The

same is taken on record and marked as "X" for

identification. The validity of the said permit

was for the period starting from 30th May, 2008 to

29th May, 2013. The aforesaid permit bears an

endorsement that the said permit was for use of

the said vehicle to carry the passengers on hire.

. In the document at Exhibit-46, the said

permit is referred to in the registration

particulars. Moreover, the evidence of the Dy.

RTO as well as the Jr. Clerk from the office of

RTO also support the case of the appellant that

there was no bar at the relevant time for

carrying the passengers through the said mini

bus. As has been deposed by the Deputy RTO, for

school bus, there was exemption in payment of

road taxes. However, from the evidence on

record, it is clear that no such exemption was

availed in the present case by the owner of the

school bus. On the contrary, the evidence on

record shows that the owner of the bus had paid

the taxes for contract carriage vehicle.

12) It has come in the evidence of the

witness examined by the insurance company that on

28th August, 2008, tax of Rs. 11,140/- was paid by

the owner of the bus and the said tax was paid

for next three months. Though it was sought to

be canvassed by Shri Ambhore, learned Counsel for

the insurance company, that the tax was not

covering the period of the accident, the

contention so raised is not liable to be

accepted. The accident had admittedly taken place

on 7th November, 2008; whereas the tax was paid

for the period starting from 28 th August, 2008 for

next three months i.e. up to 28th November, 2008.

The period of the accident has been thus squarely

covered and the owner of the bus had paid the tax

of the said period also.

13) There is no cogent and sufficient

evidence establishing the defence raised by the

insurance company that the owner of the bus has

committed breach of the policy conditions by

using the offending vehicle for the purpose not

permitted for. The learned Tribunal has not

considered the entire evidence on record and

merely relying on some admissions given by the

Dy.RTO in his cross-examination, has recorded a

finding that the breach of policy condition was

committed by the owner of the bus and has

accordingly exonerated the insurance company from

its liability to pay the compensation or to

indemnify the insured.

14) Further, it is more material to take

note of the fact that in the other claim

petitions arising out of the same accident,

another Member of the Tribunal has held the

insurance company liable jointly and severally

along with the owner for payment of compensation

to the petitioners in the said claim petitions.

The learned Counsel for the insurance company has

not disputed the fact that the Awards passed in

the said claim petitions have been satisfied by

the insurance company.

15) Having considered the entire material on

record, it appears to me that the learned

Tribunal has committed an error in exonerating

the insurance company from its liability. From

the evidence available on record, the appellant

has sufficiently established that the offending

school bus was being permitted to use for

carrying the passengers on hire. In the

circumstances, I am inclined to allow the present

appeal. Hence, the following order, -

ORDER

i) Respondent No.2 - Insurance Company is

jointly and severally held liable along with

owner of the offending vehicle, to pay the

amount of compensation, as awarded by the

Tribunal, to the appellants;