United India Insurance Company ... vs Zeheeda Begum Late Sk. Yusuf And ...
2016 Latest Caselaw 5753 Bom

                                           1                              2 fa 950.14.odt



             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                   BENCH AT AURANGABAD




                                                                         
                               FIRST APPEAL NO. 950 OF 2014




                                                 
            United India Insurance Company Ltd.
            Through its Divisional manager,




                                                
            Osmanpura, Aurangabad.                       ...       Appellant

                     Vs.

    1.      Zaheeda Begum w/o. Late Sk. Yusuf,




                                        
            Age: 38 years, Occ: Household,
            R/o Near Noorani Masjid, Panderpur,
                             
            Tq. & District Aurangabad.

    2.      Sk. Parvez S/o Late Sk. Yusuf,
                            
            Age : 20 years, Occu. Nil,
            R/o. As above.

    3.      Sk. Ayan S/o Late Sk. Yusuf,
            Age : 18 years, Occu. Nil,
      


            R/o. As above.untitled folder
   



    4.      Ayesha Begum D/o Late Sk. Yusuf,
            Age : 16 years, Occu. Nil,
            R/o. As above.





    5.      Mazher S/o Late Sk. Yusuf,
            Age : 14 years, Occu. Nil,
            R/o. As above.

            No. 4 & 5 being minors,
            U/g of respondent no.1





            Zaheeda Begum w/o. Late Sk. Yusuf

    6.      Mr. Ajit S/o. Moreshwar Save,
            Age : Major, Occ: Business,
            R/o. Anjali Complex, Near Anjali Cinema,
            Khadkeshwar, Aurangabad.

    7.      Bajiro S/o R.N. Bhure,
            Age : Major, Occ: Driver,
            R/o. Anjali Complex, Near Anjali Cinema,
            Khadkeshwar, Aurangabad.                 ...              Respondents
                                      ...


    ::: Uploaded on - 04/10/2016                 ::: Downloaded on - 05/10/2016 00:35:27 :::
                                               2                                 2 fa 950.14.odt




    Mr. Rohit Deshmukh h/f. Mr. Chapalgaonkar S.G, Advocate for
    Appellant




                                                                               
    Mr. Deokate Mayur G., Advocate for the respondent nos. 1 to 5.
    Mr. Satyajit Bora, Advocate for respondent no.6.




                                                       
                                       ...

                                                  CORAM : P.R. BORA, J.

DATE : 30-09-2016.

ORAL JUDGMENT :

1. The insurance company has filed the present appeal

challenging the judgment and award passed in M.A.C.P. 178 of 2011

on 07/01/2014

by the Motor Accident Claims Tribunal at

Aurangabad.

2. The aforesaid claim petition was filed by the present

respondent nos. 1 to 5 (hereinafter referred to as the 'claimants')

claiming compensation on account of the death of one Shaikh

Yusuf who died in a vehicular accident having involvement of bus

bearing registration no. MH-20-W-9389 owned by respondent no. 6

and insured with the appellant-insurance company. The claim so

preferred by the claimants was resisted by the appellant insurance

company on the ground that the driver of the offending bus was not

holding a valid driving license and, as such, the insurance company

was not liable to indemnify the insured . According to the appellant-

insurance company, the insured committed breach of policy

condition by allowing a person not holding a valid driving license to

drive bus owned by him. In the circumstances, according to the

appellant-insurance company, it should not have been held liable to

3 2 fa 950.14.odt

pay the amount of compensation. The insurance company had also

raised the dispute about the quantum of compensation as claimed

by the claimants. The tribunal, however, turned down the objection

so raised by the insurance company and held it liable to pay the

compensation of Rs. 05,46,500/- to the claimants jointly severally

with the driver and the owner of the insured bus. Aggrieved by the

order the insurance has filed the present appeal.

3. Mr. Deshmukh, learned counsel appearing for the

appellant insurance company has pressed two grounds in exception

to the impugned judgment.

4. In the present appeal the appellant insurance company

has challenged the impugned award mainly on the ground that the

tribunal has wrongly held the appellant liable to indemnify the

insured that it has sufficiently proved breach of policy condition by

the insured. The record shows that the appellant had sought leave

of this court for leading additional evidence to substantiate the

objection raised by it that the driver of the bus was not holding a

valid driving license on the date of accident. The said application

was allowed by this court and the appellant-insurance company was

permitted to place on record the relevant documents. The

concerned documents were called for by the appellant from the

R.T.O. Beed, referring to the driving license number which was

stated to be the driving license number of the driver of the insured

4 2 fa 950.14.odt

bus and accordingly the said papers were placed on record. It is

also matter of record that the documents which came to be

permitted on record by R.T.O. Beed pertaining to driving license no.

083/82 are evidencing that the said driving license was not in the

name of the driver of the insured bus namely Bajirao Bhure but

were in the name of one Venkat Shinde.

5. The record of the appeal further shows that, later on the

original owner i.e. Respondent No.6, in the present appeal filed on

record the original driving license of said Bajirao Bhure along with

the xerox copies of the same, which was evidencing that said

Bajirao Bhure was holding a valid driving license on the date of

occurrence of the alleged accident. The xerox copy of the said

driving license is existing on record. Today during the course of the

hearing, original license is also shown to the court. It was also

submitted by the learned counsel appearing for the parties that, on

one previous date the said driving license was also brought to the

notice to the then court and to the learned counsel for the

insurance company. The subsequent developments further reveal

that the copy of the said driving license was sent for further

scrutiny by the insurance company whereupon it is noticed that the

said Bajirao Bhure was holding a valid driving license on the date of

accident.

6. In view of the fact that now there is no dispute that the

5 2 fa 950.14.odt

driver of the insured bus was holding valid driving license on the

date of the accident the principle ground raised by the appellant

insurance company in exception to the impugned award ceased to

exist. The second ground which has been raised by the appellant-

insurance company as about the quantum has also not impressed

me for the reason that the tribunal has determined the amount of

compensation by holding the income of the deceased on notional

basis i.e. to the tune of Rs.3,000/- per month. Though, it was

sought to be canvassed by the learned counsel appearing for the

insurance company that, there was no evidence so as to add 30%

of the income by way of future prospects and to determine the

amount of compensation on the basis of that increased income.

7. Though, the appellant-insurance company had also

raised certain objections as about the quantum of compensation as

determined by the tribunal, I do not see any merit in the objections

raised. It does not appear to me that the tribunal has committed

any error in determining amount of compensation by holding the

income of the deceased on the basis of notional income to the tune

of Rs.3,000/- per month and enhancing the said income by 30%

towards future prospects. Except the aforesaid two grounds no

more grounds are pressed by the appellant so as to cause

interference in the impugned judgment and award. The appeal,

therefore, fails and is accordingly dismissed. However without any

order as to cost. The claimants are permitted to withdraw the

6 2 fa 950.14.odt

amount of compensation, if any, deposited by the insurance

company in this court in terms and proportion as indicated in the

impugned award if not already withdrawn.

(P.R. BORA)

JUDGE

mub