Bombay High Court
Shaikh Shaukat Shaikh Usman vs Oriental Insurance Company Ltd. & ... on 20 June, 2016
Bench: T.V. Nalawade
SA No. 107/1992
1
IN THE HIGH COURT AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
SECOND APPEAL NO. 107 OF 1992
Sk. Shaukat s/o. Sk. Osman,
Age Major, Occu. Business,
R/o. Shekta, Taluka and
Dist. Aurangabad. ....Appellant.
(Ori. Plaintiff)
Versus
1. The Oriental Insurance Co. Ltd.,
through its Divisional Manager
Shri. Sorabjee s/o. Nosherwan
Jalnawala, Adalat Road, A'bad.
2. Divisional Manager,
New India Insurance Company,
Adalat Road, Aurangabad. ....Respondents.
Mr. A.P. Bhandari, Advocate for appellant.
Mr. A.A. Joshi, Advocate for respondent No. 1.
CORAM : T.V. NALAWADE, J.
DATED : 20th June, 2016.
JUDGMENT :
1) The appeal is filed to challenge the judgment and
decree of 2nd Additional District Judge, Aurangabad delivered in
Regular Civil Appeal No. 49/1989. The appeal was filed by
present Insurance Company of the vehicle of the plaintiff against
judgment and decree of Regular Civil Suit No. 719/1985, which
was pending in the Court of Civil Judge, Junior Division,
Aurangabad.
SA No. 107/1992
2) The suit was filed for compensation in respect of
damage caused to the vehicle of plaintiff in motor vehicle
accident and the Trial Court had decreed the claim of Rs.
17,000/- with interest and future interest at the rate of 12% p.a.
was also given. This decision is set aside by the First Appellate
Court. Heard the learned counsels for both the sides.
3)
Plaintiff is owner of one pick up truck bearing No.
MHB/6752 and it was of 1976 model. This truck was insured with
present respondent Oriental Insurance Company. Though New
India Insurance Company, the insurance company of other
vehicle was also made defendant, no decree was given against
New India Insurance Company and so, that case need not be
considered.
4) The accident took place on 23.6.1982. It is
contended that the truck of plaintiff was damaged in accident
and he was required to spend Rs. 17,000/- on repairs. Only on
that count, the compensation was claimed from the Insurance
Company of the truck.
5) Oriental Insurance Company filed written statement
SA No. 107/1992
and contested the matter. The fact of insurance was admitted,
but other contentions were denied. It was contended that when
surveyor was appointed to make the assessment of the damage,
the plaintiff was asked to produce the record like fitness
certificate and permit, but such record was not produced. It is
contended that on the date of accident, the permit had expired
and plaintiff never produced fitness certificate before Insurance
Company. It is contended that in view of these circumstances,
there was breach of terms and conditions of the policy and so,
plaintiff is not entitled to get the compensation.
6) This Court admitted the appeal on 3.3.1992, but it
appears that substantial questions of law were not formulated.
During arguments, it was made clear to both the sides that
following substantial question of law is involved in the matter.
(i) Whether the Insurance Company has produced
the material on the record on the basis of which
inference is possible that the plaintiff had committed
breach of terms and conditions of the contract and due
to that, plaintiff is not entitled to get compensation ?
7) Before the Trial Court, plaintiff examined himself and
he gave evidence as per aforesaid contentions. He was cross
SA No. 107/1992
examined by the learned counsel for defendant No. 1, Oriental
Insurance Company, but it was not specifically suggested to
plaintiff that the vehicle was not fit or that there was no fitness
certificate and there was no transport permit issued by R.T.O.
Plaintiff examined one Motor Vehicle Inspector Shri. Jadhav. He
was working in the concerned R.T.O. Office from 1977 to 1984 as
Assistant Motor Vehicle Inspector. One Shri. Dhupavkar was
working as Motor Vehicle Inspector, who is required to inspect
the vehicle and issue fitness certificate. In his evidence, a copy
of fitness certificate is proved as Exh. 54. The witness has
identified the signature of aforesaid Officer. The record of
payment of fees for getting road permit is also proved and the
receipts in respect of payment of charges are proved. This record
is at Exhs. 52 to 61.
8) The fitness certificate at Exh. 54 was for the period
from 9.8.1981 to 8.8.1982, though it was issued on 30.9.1982,
after the date of accident. Rule 45 of the Maharashtra Motor
Vehicle Rules show that can be issued even after expiry of
previous certificate of fitness and record must have been seen
by police after accident. Copy of application given for issuing
duplicate certificate of fitness is brought on the record and it
shows that in the year 1987, for the purpose of suit, plaintiff
SA No. 107/1992
again applied for getting a copy as he had lost the record. As per
the record, there was valid registration of the vehicle and it is
not disputed now that there was permit for the vehicle at the
relevant time. Much was argued by the learned counsel for
Insurance Company on circumstance that the certificate of
fitness is not in the format given in the Motor Vehicle Act. It was
submitted that the record was created subsequent to the
accident. Even if this circumstance is accepted as it is, there is
another circumstance against the Insurance Company like
existence of valid permit which is at Exh. 57. This permit was
issued in April 1982 when the accident took place in June 1982.
It was valid up to year 1988. It can be said that at the time of
issuing permit also, the owner is required to satisfy some
conditions, which are mentioned in permit itself and for that, the
vehicle was inspected by R.T.O. Office. Section 158 of Motor
Vehicle Act r/w. Rule 45 of Maharashtra Motor Vehicle Rules show
the procedure for inspection when accident takes place. Further
steps like cancellation also can be taken. No such steps are
taken against the plaintiff.
9) One Officer is examined by the Insurance Company
and he has given evidence that plaintiff has not produced the
fitness certificate. Some correspondence is produced at Exh. 72
SA No. 107/1992
to show that Insurance Company had asked the owner to
produce such record. He admits that except the fitness
certificate other record was produced in the office of Insurance
Company. Suggestion was given to him that original fitness
certificate was also produced, but this suggestion was denied.
10) The learned counsel for plaintiff, appellant placed
reliance on some cases of different High Courts, which are as
under :-
(i) MFA No. 4428/2013 [Between The
Branch Manager National Insurance
Company Ltd. Vs. H.D. Channadevaiah and
Ors.] dated 25th June 2014 KARNATAKA HIGH
COURT,
(ii) MFA No. 7958/2010 [MV] [Between M/s.
Iffco Tokio General Insurance Company Ltd.
Vs. Sri K. Krishanan and Ors] dated 14th
June 2012, KARNATAKA HIGH COURT and
(iii) Decision of Gujarat High Court dated
23rd August 1991 [Between Alam Yasin Mirza
Vs. V.K. Makwana and Ors.].
The learned counsel for appellant submitted that when the
contract of Insurance was admitted, the burden was on the
Insurance Company to prove that there was a particular
condition and due to breach of that condition, the Insurance
Company cannot be held liable to pay the compensation. The
learned counsel submitted on the basis of observations made in
SA No. 107/1992
the aforesaid three cases that when Insurance Company accepts
premium from customer, it is duty of Insurance Company to
ascertain that the record which should be there for showing
compliance of the provisions of Motor Vehicle Act was there and
only after that the Insurance Company is expected to enter in to
the contract. He submitted that when Insurance Company
accepts the premium, then the defences which are available to
Insurance Company are only the defences under section 96 of
the Motor Vehicle Act, 1988 and no other defence is available to
Insurance Company. There is no force in this submission. Plaintiff
is not that party and so, the relevant provision of Motor Vehicle
Act cannot be used in the present case.
11) In the result, the appeal is allowed. Judgment and
decree of First Appellate Court is set aside and judgment and
decree of Trial Court is hereby restored.
[ T.V. NALAWADE, J. ]
ssc/
