Makrand Shamrao Kadam vs Ramdas Alu Pawar And Others
2017 Latest Caselaw 5352 Bom

                                        1            FA NO.1332 OF 2014


       IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                  BENCH AT AURANGABAD

                    FIRST APPEAL NO. 1332 OF 2014

  Makrand S/o. Shamrao Kadam
  Age: 37 years, Occ. Agri.,
  R/o. Lakhangaon, Tq. Ausa,
  Dist. Latur.

  (Owner of the vehicle MH-24-A-2297)
                                                  ...APPELLANT
                                                (Orig. Opponent No.1)
                               VERSUS

  1.       Ramdas S/o. Alu Pawar,
           Age: 44 years, occu: Labour,
           R/o. Yelda, Tq. Ambajogai,
           Dist. Beed.

  2.       Anjana D/o. Ramdas Pawar,
           Age: 18 years, occu: Nil,
           R/o. Yelda, Tq. Ambajogai,
           Dist. Beed.

  3.       Samla D/o. Ramdas Pawar
           Age: 16 years, Occu. :Nil,
           R/o. Yelda, Tq. Ambajogai,
           Dist. Beed

  4.       Shravan S/o. Ramdas Pawar
           Age: 14 years, occu: Nil,
           R/o. Yelda, Tq. Ambajogai,
           Dist. Beed

           Respondent Nos. 3 & 4 are minor
           U/Guardian of Resp. No.1
           Ramdas s/o. Alu Pawar
           R/o. Yelda, Tq. Ambajogai,
           Dist. Beed




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                                            2                   FA NO.1332 OF 2014

  5.        Shamrao S/o. Girjappa Jagdale
            Age: 33 years, Occu: Truck Driver,
            R/o. Iti, Tq. Renapur, Dist. Latur,
            At Present R/o. Kapilnagar,
            Khadgaon Road, Latur

  6.        United India Assurance Com. Ltd.
            Through Branch Manager,
            Infront of Gorakshan,
            Main Road, Latur
            (Insurer of the vehicle MH-24-A-2297)
            Policy No.230603/31/07/02/00009170)
                                            ...RESPONDENTS
                                                (Resp. No.1 to 4 Ori. Claimants)
                                                (Resp. No.5 &6 Orig.
                                                 Opponents No.2 & 3)
                              ...
            Mr. Suhas D. Ghute, Adv. for Appellant.
    Mr. Amit S. Deshpance, Adv. for Respondent Nos. 1 to 4.
          Mr. S.C.Swami, Adv. for Respondent No.5.
                              ...

                                     CORAM: P.R.BORA, J.

                                     DATE :       AUGUST 1st, 2017

                                          ***
  ORAL JUDGMENT:

1. The present appeal is filed against the judgment

and award passed by the Motor Accident Claims Tribunal at

Latur in M.A.C.P.No.272/2008 decided on 25th of April, 2013.

The aforesaid Claim Petition was filed by the present

respondent nos. 1 to 4, claiming compensation on account of

death of one Gangabai alleging the same to have been caused

in a vehicular accident happened on 7.4.2011 having

3 FA NO.1332 OF 2014

involvement of a truck bearing registration No.MH-24-A-2297

owned by the present appellant and insured with respondent

no.6 Insurance Company. The claimants had alleged that the

accident happened because of rash and negligent driving of the

driver of the offending truck and they have, therefore, claimed

compensation of Rs.4,00,000/- ( Rs. four lakhs) from the driver

owner and insurer of the said truck.

2. The petition was resisted by the respondents on

various grounds. The Insurance Company had also opposed

the petition and raised the ground of breach of policy condition

by the owner of the vehicle. It was the contention of the

Insurance Company that the owner of the insured truck has

carried passengers in the goods vehicle and, as such, was not

liable to indemnify the insured. The Tribunal, after having

assessed the oral and documentary evidence, held the

claimants entitled for total compensation of Rs.3,37,000/-

jointly and severally from the driver ad owner of the offending

truck and exonerated the Insurance Company from its liability

to pay the amount of compensation. Aggrieved thereby, the

owner has filed the present appeal.

3. Heard learned Counsel appearing for the appellant.

4 FA NO.1332 OF 2014

Learned Counsel submitted that the Tribunal has erred in

recording a finding that the Insurance Company has established

breach of policy condition by the present appellant. Learned

Counsel submitted that no positive evidence was adduced by

the Insurance Company to prove breach of the policy condition

by the owner and, as such, the Tribunal could not have

recorded a finding that the breach of policy condition was

proved by the Insurance Company and, consequently, should

not have exonerated the Insurance Company from its liability to

indemnify the insured. Learned Counsel further submitted that

the Insurance policy was clearly indicating that through the said

truck six employees were permitted to travel and their risk was

fully covered by the insurance policy. Learned Counsel

submitted that the aforesaid aspect has been ignored by the

learned Tribunal which has resulted in passing the impugned

award, causing injustice to the present appeal. Learned

Counsel, therefore, prayed for allowing the appeal and to hold

the respondent no.2 Insurance Company liable to indemnify the

insured and to pay the amount of compensation as awarded by

the Tribunal to the claimants for and on behalf of the present

appellant.

  4.               I    have    carefully       considered     the      submissions





                                        5                FA NO.1332 OF 2014

advanced by the learned Counsel appearing for the appellant.

I have perused the impugned judgment. In paragraph no.10

of the judgment, learned Tribunal has discussed the issue as

about the alleged breach of policy condition by the owner of the

vehicle. I deem it appropriate to reproduce hereinbelow entire

said paragraph which reads thus:

"10. At this stage, the learned Advocate for respondent No.1 vehemently argued before me that Insurance cover was also for six employees of respondent No.1 Premium was paid by respondent No.1 for the same. And, therefore, Insurance company is liable to pay compensation to the claimants and indemnify the insurer, i.e. respondent no.1. I found no substance in this contention. It has brought on record through the oral and documentary evidence that deceased Gangubai was not employee of respondent No1. On the contrary, she was employee of sugar cane factory and working for Mukadam Shivaji Alu Pawar. this fact is deposed by Shivaji Alu Pawar on oath before the Court.

He stated that he supply the sugarcane cutting laourers to Manjara Sahakari Sakhar Karkhana. Deceased Gangubai was one of them. There was an agreement between he himself and Manjara Karkhana. From his evidence it seems that Gangubai was employee of Mukadam Shivaji Alu Pawar and not that of respondent No.1 Makrand. Even respondent No.1 has admitted this fact in his written statement. Now he cannot say that Gangubai was his employee. He has denied this fact in his written statement."

6 FA NO.1332 OF 2014

From the discussion made by the Tribunal, it appears that

a case was sought to be advanced that deceased Gangubai was

an employee of the owner of the truck i.e. the present appellant

and, as such, her risk was covered by the Insurance policy.

The Tribunal has, however, turned down the said contention

observing that from the evidence on record it was undoubtedly

proved that the deceased was an employee of the sugar factory

and working with some Mukadam and was not employee of the

present appellant. Nothing has been brought on record to

show that the aforesaid finding recorded by the Tribunal is

against the evidence on record or has been incorrectly

recorded. The appellant has failed to bring on record any

evidence to show that deceased Gangubai was in his

employment. As such, the only conclusion which emerges is

that the deceased Gangubai at the relevant time was travelling

from the offending truck which was admittedly a goods truck as

a passenger. The risk of the deceased was thus not covered

by the insurance policy. It does not appear to me that the

Tribunal has committed any error in recording a finding that

breach of conditions of policy by the owner was proved and, as

such the insurance company was not liable to indemnify the

insured.

7 FA NO.1332 OF 2014

The appeal being devoid of substance deserves to be

dismissed and is accordingly dismissed without any order as to

the costs. Civil Applications, if any, stand disposed of.

(P.R.BORA) JUDGE ...

AGP/1332-14fa