Bombay High Court
New India Assurance Company Ltd ... vs Sameenabee Sk Faiyaz And Ors on 24 February, 2016
Bench: T.V. Nalawade
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186
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
FIRST APPEAL NO.: 186 OF 2011
***
New India Assurance Company LOtd.,
Aurangabad, through its Divisional
Manager, Adalat Road, Aurangabad. ... APPELLANT
[ORIG.RESPDT.NO.3]
VERSUS
1. Sameenabee W/o Sk. Faiyaz,
Age: 33 years, Occu. Household,
R/o Ganesh Nagar, Padegaon,
Taluka and District Aurangabad.
2. Sarfaraz S/o Sk. Faiyaz,
Age: 5 years (Minor)
U/g of real mother
Respondent No.1.
3. Reshma D/o Sk. Gani,
Age: 10 years, Occu. Education.
4. Sk. Gani S/o Sk. Suleman,
Age: 68 years, Occu: Labour,
R/o as above.
5. Intiyasbee W/o Sk. Gani.
Age: 58 years, Occu: Household,
R/o as above.
6. Lalchand S/o Dagadu Brahmakar,
Age: 35 years, Occu: Business,
R/o as above. ... RESPONDENTS
[NOS.1 TO 5 ORIG.
CLAIMANTS, NOS.6
& 7 ORIG.RESPDT.
NOS.1 AND 2]
***
Mr. S. G. Chapalgaonkar, Advocate for the Appellant.
Mr. Amol P. Khedkar, Advocate for Respondent Nos.1 to 3 & 5.
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CORAM:- T. V. NALAWADE, J.
DATED:- 24th FEBRUARY, 2016.
-:(2):-
ORAL JUDGMENT:
1. The appeal is filed by insurance company to
challenge the judgment and Award of Claim Petition No.682
of 2007 which was pending before the Claims Tribunal,
Aurangabad. Heard learned counsel for the Insurance
company and learned counsel for the original claimants.
Nobody has turned up for owner of the vehicle.
2.
The challenge of the insurance company is of limited
nature. It is the case of the insurance company that the
Respondent No.1, driver of offending vehicle was not
holding valid and effective driving licence on the date of
the accident i.e. on 9th May, 2005 and so it is not bound to
indemnify the owner.
3. Before the Tribunal, the insurance company had taken
such defence in the written statement. The record like
Xerox copy of driving licence of Respondent No.1 was
produced on record at Exhibit-44. Though some portion is
not legible it can be said that the licence was issued on
27th August, 1997 and so it was valid for the period of
about three years, as per the procedure followed at the
relevant time. So, it was valid up to 26 th August, 2000. No
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endorsement showing that the licence was renewed after
26th August, 2000 is legible or appearing on Exhibit-44.
4. In the appeal, for clarification, the Appellant
insurance company has produced certificate issued by
R.T.O. office which is to the effect that the licence in
respect of the aforesaid period was given to the
Respondent No.1. This certificate was issued on 26th April,
2010.
Though proper procedure was not followed for
production of additional evidence in appeal, it can be said
that before the Tribunal also there was no record to show
that on the date of the accident Respondent No.1 was
holding valid and effective driving licence. Inspite of this
circumstance, the Tribunal has held that the insurance
company failed to prove the breach of conditions of policy,
after considering the same document, Exhibit-44.
5. The aforesaid circumstances and the record are
sufficient to prove on preponderance of probability that the
Respondent No.1 was not holding valid and effective
licence at the relevant time. Respondent No.1 had not
contested the matter by filing written statement. Similarly,
Respondent No.2 had not contested the matter. In view of
these circumstances, this Court holds that the Tribunal
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ought to have held that on the relevant date the
Respondent No.1 was not holding valid and effective
licence.
6. Learned counsel for the original claimants submitted
that even if the breach of the terms and conditions of the
policy is proved, as the deceased was third party, the
insurance company must be made liable to pay first and it
can be allowed to recover the amount from the owner of
the vehicle. On this point, reliance is placed on the case
reported as 2013 (3) T.A.C. 393 (S.C.) [S. Iyyapan V/s
M/s. United India Insurance Company Ltd. and
Another]. Though it could have been said that the
conscious breach ought to have been proved by the
insurance company, when the licence of aforesaid nature is
on the record and as the owner has not contested the
matter and there is nothing in rebuttal the decision needs
to be given against the owner of the vehicle.
7. In the result, only to give right to the insurance
company to recover the amount from the owner of the
vehicle, following order is made:
(i) Appeal is allowed. Judgment and Award of the
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Tribunal is modified to give right to the insurance company
to recover the compensation amount from the owner who
is Respondent no.2 in this appeal with interest at the same
rate which the insurance company is made to pay. Award
is to be modified accordingly and by using this Award the
insurance company will be entitled to recover the amount
from the owner.
(ii)
The amount, which is awarded to claimant No.2
Shaikh Gani is to be paid to his widow Smt. Intiyasbi Shaikh
Gani and on the record Shaikh Gani is to be shown as dead.
8. In view of final disposal of the appeal itself, nothing
further survives in the civil application No.12723 of 2010
which is filed for stay. The application stands disposed of
accordingly.
[T. V. NALAWADE, J.]
Dated:24/02/2016.
ans/186
