Bombay High Court
National Insurance ... vs Abdul Gaffar Mushabhai And 3 ... on 9 March, 2016
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL NO.355 OF 2004
National Insurance Co. Ltd.,
through its Branch Manager,
Division Office No.IV, Durga Sadan,
Plot No.40, Balraj Marg, Dhantoli,
Nagpur. ....... APPELLANT
ig ...V E R S U S...
1] Abdul Gaffar s/o Mushabhai
Aged 42 years, Occupation -
Auto driver.
2] Rabiyabee w/o Abdul Gaffar,
Aged 38 years,
Occ: Household,
Both Resident of Wanjari Layout,
Shyam Nagar, Plot No.C-14
Pili Nadi, Post Upalwadi, Nagpur.
3] Surendra Pal Singh s/o Atmaram
Shurena, Aged about Major,
Occupation Truck Owner,
R/o H.No.B-2/8 Yogiraj Housing
Society, Amravati Road, Nagpur.
4] Vasanta G. Yenurkar,
Aged about Major, Occ: Auto
Owner, R/o 639 Nehru Nagar,
Near Corporation School, Nagpur. ....... RESPONDENTS
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Shri D.N. Kukday, Advocate for Appellant.
None for Respondents.
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CORAM: R.K. DESHPANDE, J.
DATE: 9 th
MARCH, 2016.
ORAL JUDGMENT
1] In the Claim Petition No.733 of 1996 filed under Section
166 of the Motor Vehicles Act, the appellant - insurance company along
with the owner of the auto-rickshaw bearing registration No.MWZ-1835
are held jointly and severally liable to pay the compensation of
Rs.1,20,000/- along with 6% interest to the dependents of the deceased,
who died in an accident occurred on 27.09.1996 at about 06:00 a.m.
This decision of the Tribunal given on 05.02.2004 is the subject-matter
of challenge in this appeal by the insurance company.
2] The case of the claimant before the Tribunal was that the
deceased Mohd. Aslam was the driver of auto-rickshaw bearing
registration No.MWZ-1835, which was dashed by a truck bearing
registration No.MWY-6386 on 27.09.1996 at 06:00 a.m. near L.I.C.
Square, Sadar, Nagpur. Though, the Tribunal has held that both the
vehicles were insured with the appellant - insurance company, it has
rejected the case of the claimant that the truck MWY-6386 was involved
in the accident. It is, therefore, not necessary for this Court to go behind
such finding recorded by the Tribunal, and this Court will have to ignore
the involvement of the truck MWY-6386. The Tribunal has rejected the
fa355.04.J.odt 3/5
stand taken by the insurance company that the auto-rickshaw in question
was also not involved in the accident, and thereafter it has proceeded to
hold that the auto-rickshaw was validly insured on the date of
occurrence of the accident with the appellant - insurance company, and
hence, the dependents of the claimant were entitled for compensation.
3] Shri Kukday, the learned counsel appearing for the
appellant - insurance company has urged that it was only an "act policy"
in respect of the auto-rickshaw in question which did not cover the risk
of the driver of the auto-rickshaw, more particularly, when he was not a
paid driver, and there is no evidence on record to show that any
negligence on his part, and that the claim of the dependents under
Section 166 of the Motor Vehicles Act was therefore, not maintainable.
Shri Kukday, the learned counsel has taken me through the
cross-examination of the claimant the father of the deceased in which he
has stated as under:
"the deceased Mohd. used to pay Rs.50/- per day to the owner
of the auto by way of rent"
Shri Kukday, has also invited my attention to the cover note at exhibit
60/A in respect of auto-rickshaw.
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4] The point for determination is therefore, as under:
i] Whether the Tribunal was right in holding the appellant -
insurance company is jointly and severally liable along with
the owner of the vehicle to pay the amount of compensation
to the dependents of the deceased ?
5] I have perused the cover note of the insurance in respect of
auto-rickshaw, and I find from it that the premium of Rs.357/- has been
paid after adding Rs.40/- and Rs.17/- separately in the premium of
Rs.300/-. It was for the insurance company to enter the witness box to
depose the head under which such premium has been collected.
The Tribunal has rejected the contention of the insurance company that
the auto-rickshaw in question was not involved in the accident.
The question of maintainability of the claim under Section 166 of the
Motor Vehicles Act would depend upon the jurisdictional facts which are
required to be pleaded and proved. In the absence of such pleading and
proof it cannot be said that the claim was not maintainable.
6] With the assistance of Shri Kukday, the learned counsel for
the appellant - insurance company, I have gone through the written
statement placed on record. Shri Kukday, could not point out from the
said written statement the stand of the insurance company that the
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policy was only an "act policy", and it did not cover the risk of the
auto-rickshaw driver. Assuming that it was the case of the insurance
company that the risk of the driver was not covered then the insurance
company should have tendered the witness in evidence, but the
insurance company has not examined any witness. It is not the stand
taken in the written statement that the auto-rickshaw driver was a paid
driver and he was not negligent in driving the vehicle, and that the claim
under Section 166 of the Motor Vehicles Act was not maintainable.
7] In view of above, I do not find any substance in the claim
petition, the first appeal is dismissed. No order as to costs. If the
appellant - insurance company has deposited any amount the same is
permitted to be withdrawn by the claimant along with the interest, if
any, accrued thereon.
JUDGE
NSN
