United India Insurance Co.Ltd vs Rambai Dnyandeo More & 6 Ors
2017 Latest Caselaw 9294 Bom

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                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                           NAGPUR BENCH, NAGPUR


                                      FIRST APPEAL No.629 OF 2006


        United India Insurance Co. Ltd.,
        Through its Manager, Nagpur.
        Regional Office, Shankar Nagar Square,
        Nagpur (Original Opponent No.2).                                                      :      APPELLANT

                           ...VERSUS...

        1.    Ramabai w/o. Dnyandeo More,
               Aged about 30 years (Widow),
               Occupation : Household work.

        2.    Amardeep Dnyandeo More,
               Aged about 11 years.
               Occupation : Education.

        3.    Sandeep Dnyandeo More,
               Aged about 9 years,
               Occupation : Education.

        4.    Jaideo s/o. Dnyandeo More,
               Aged about 6 years.

               Respondent Nos.2,3 and 4 minors,
               through guardian, respondent No.1.

        5.    Sadashiv Mural More,
               Aged about 65 years.

        6.    Shakuntalabai w/o. Sadashiv More,
               Aged about 60 years.
               (Original Petitioners)

        7.    Satish Omprakash Choudhari,
               Aged about 43 years,
               Occupation : Agriculturist and
               owner of the Tractor No.MTE-4935.




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               All R/o. Jalamb, Tq. Khamgaon, 
                District Buldhana.
               (Original Respondent No.1 on R.A.)                                        :      RESPONDENTS


        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
        Shri M.M. Kalar, Advocate for the Appellant.
        Shri N.B. Kalwaghe, Advocate for the Respondent Nos.1 to 6.
        None for Respondent No.7
        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-


                                                      CORAM  :   S.B. SHUKRE, J.

th DATE : 5 DECEMBER, 2017.

ORAL JUDGMENT :

1. This is an appeal which questions legality and correctness of

the judgment and order dated 14th November, 2005, rendered in Motor

Accident Claim Petition No.56/2000, by the Member, Motor Accident

Claims Tribunal, Khamgaon.

2. A petition claiming compensation under Section 166 of the

Motor Vehicles Act for the untimely loss of deceased Dnyandeo Sadashio

More, husband of respondent No.1, father of respondent Nos.2 to 4 and

son of respondent Nos.5 and 6 in a vehicular accident, which took place

at about 5.00 a.m. of 29.11.1994, near a mile stone on Kherda-Jalamb

Road was filed by the dependents of the deceased against the appellant

and the respondent No.7. At that time, deceased Dnyandeo was sitting

on the tractor bearing registration No.MTE-4935, belonging to

respondent No.7 and insured with the appellant. The claim petition

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proceeded against the owner of the tractor i.e. respondent No.7 without

his written statement. It was, however, contested by the appellant. On

merits of the case, the Tribunal found substance in the petition and

therefore, by the impugned judgment and order dated 14.11.2005, the

Tribunal partly allowed the petition granting compensation of

Rs.3,06,000/- inclusive of no fault liability amount together with interest

at the rate of 7.5% pa. from the date of petition till realization as

compensation to the respondent Nos.1 to 6 and it was made payable by

respondent No.7 and the appellant jointly and severally. Not being

satisfied with the same, the appellant is before this Court in the present

appeal.

3. I have heard Shri M.M. Kalar, learned counsel for the

appellant and Shri N.B. Kalwaghe, learned counsel for the respondent

Nos.1 to 6. Nobody appears on behalf of respondent No.7 though duly

served. I have gone through the record of the case including the

impugned judgment and order.

4. Now, the following point arises for my determination :

Whether the appellant has proved that it is not liable to pay compensation on account of fundamental breach of the insurance policy ?

5. Shri M.M. Kalar, learned counsel for the appellant submits

that the evidence of its witness OW 2, Rajabhau Bobade, who was then

working as junior clerk in the Office of Deputy Regional Transport Office,

J-fa629.06.odt 4/11

Buldhana has established the fact that the driving licence issued to the

driver of the tractor, one Subhash Dhote, was for light motor vehicle and

it was valid only upto 12.12.1991 and that the licence was not renewed

thereafter by Subhash. He further submits that the accident in the

present case occurred on 29.11.1994 and on that date, Subhash the

driver of the tractor did not possess any valid driving licence and

therefore, there was a fundamental breach of policy and as such the

insurance company i.e. appellant could not have been held to be liable to

pay the compensation. This is, however, disagreed to by Shri N.B.

Kalwaghe, learned counsel for respondent Nos.1 to 6. According to him,

the defence of the insurance company coming before the Court for the

first time through the evidence of its witness No.2 Rajabhau Bobade was

rightly ignored by the Tribunal because no such defence and no plea in

that regard was taken by the appellant in its written statement filed at

Exh.-21. If such a plea had been taken by the appellant well in advance,

either in the written statement or by filing some additional reply, the

claimants would have prepared themselves accordingly to meet the

defence, so submits learned counsel for respondent Nos.1 to 6. He also

submits that even otherwise, the owner was not examined as its witness

by the appellant nor the driver of the tractor was examined and

therefore, one does not know whether the driver had obtained licence

from some other place or not. He further submits that there is nothing

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on record to show that the owner knew that his driver, who was his

employee, possessed a driving licnece which had expired long before.

6. On going through the record of the case and also the

evidence of OW 2 Rajabhau Bobade, I find that there is great substance

in the argument of learned counsel for respondent Nos.1 to 6 and no

merit in the argument of learned counsel for the appellant.

7. Admittedly, no defence regarding non-possession of a valid

driving licnece at the relevant time by one Subhash Dhote, driver of the

tractor in question, was taken by the appellant in its written statement.

This defence was taken by the appellant, admittedly, for the first time,

when it examined its witness OW 2 Rajabhau Bobade. Such defence

having been taken for the first time at a belated stage, the respondent

Nos.1 to 6 were taken by surprise and did not have any effective

opportunity of meting such a plea newly taken. Had this defence been

taken earlier, the respondent Nos.1 to 6 would have been able to answer

it in an proper way. But, this has not happened in the present case.

There is also no material on record to show that claimants were granted

further time to prepare themselves properly to answer the defence so

taken by the appellant suddenly. Therefore, I am of the view that the

defence of fundamental breach of policy arising from non-possession of

valid driving licence taken by the appellant was rightly rejected by the

Tribunal.

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8. Even otherwise, whenever a defence to the effect that the

driver of the offending vehicle did not possess a valid driving licence at

the time of accident is taken, the onus to prove it lies upon the insurance

company and such onus does not stand discharged just on bringing on

record the non-possession of valid driving licnece by the driver at the

relevant time. Something more is required to be proved by the appellant

in order to claim its discharge from such a burden of proof. This

something more is in the nature of the knowledge possessed by an

employer that his employee-driver is not in possession of a valid driving

licence and yet, he allows his such employee to continue driving his

vehicle. This material fact, has not been brought on record by the

appellant. The appellant, could have very well examined the driver of

the tractor, but it did not. The appellant also had the opportunity of

examining the owner itself. But, it was not availed of by it. Therefore,

adverse inference against the appellant would have to be drawn and it

would be to the effect that it did not examine any of the material

witnesses because the driver of the tractor possessed valid driving licence

to drive the tractor at the relevant time.

9. Then, there is also another angle involved in the present

case. Rajabhau Bobade (OW 2) was an official of Deputy Regional

Transport Office, Buldhana. He has deposed about the expiry of the

licnece issued by Buldhana, Deputy Regional Transport Office, which was

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based upon record of that office. Obviously, he had no knowledge about

the record of the other Regional Transport Offices in Buldhana district.

This would create a possibility of the driver Subhash Dhote, obtaining

licence to drive the tractor from the other Regional Tranport Offices in

Buldhana district and as long as this possibility was not ruled out, the

defence of the appellant could not have been said to be established in the

present case. The best way to rule out the possibility was to examine

either the driver of the tractor or the owner of the tractor. But, as stated

earlier the appellant did not.

10. For all these reasons, I am of the view that the Tribunal has

rightly rejected the defence taken by the appellant regarding

fundamental breach of the insurance policy. The appellant failed to

discharge its burden of proof regarding non-possession of valid driving

licence at the relevant time, by the driver of the offending tractor and

about this fact being well within the knowledge of the owner of the

tractor i.e. respondent No.7. I, therefore, do not see any reason to make

interference with the finding recorded in this regard by the Tribunal.

11. The second ground of challenge is that the driver of the

tractor himself was found to be negligent and therefore, no liability could

have been fastened upon the appellant for the death of deceased

Dnyandeo, who was sitting on the mudguard of the tractor in question at

the time of accident. Learned counsel for respondent Nos.1 to 6 submits

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that such an argument has been appropriately dealt with by the Tribunal

and has been rejected by it.

12. On going through the impugned judgment and order, I find

that similar argument was made before the Tribunal. The Tribunal

rejected it on the ground that it is a proved fact that deceased Dnyandeo,

though sitting on the mudguard of the tractor in question, was not

occupying the vehicle as a passenger on hire or a passenger undertaking

such travel gratuitously. The Tribunal has found that the claimants

proved that deceased Dnyandeo was sitting on the tractor as an employee

of respondent No.7. The evidence available on record in which shows

that the claimants have established the fact that deceased Dnyandeo was

sitting on the tractor as an employee of respondent No.7. Once such a

fact is proved, the insurance company would become liable as per the

terms of the contract of insurance to indemnify the owner of the tractor

which is the case here, for whatever liability that is fastened upon it on

account of the vicarious liability of the owner for the negligence of his

employer-driver. Therefore, I see no merit in the argument and it is

rejected.

13. It is also the contention of the appellant that the tractor was

used for non-agricultural purpose at the time when the accident occurred

and therefore, the insurance company could not be held to be liable to

pay any compensation. Again, learned counsel for respondent Nos.1 to 6

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has taken me through the impugned judgment and order wherein, one

can instantly notice that this argument made before the Tribunal has

been rightly rejected by giving sound reasons. There is no denying the

fact in the present case the tractor had been to village Kherda for

performing some agricultural operations in the field of another

agriculturist, Dwarkadas Agrawal, and that it was returning to Jalamb

after completion of those agricultural works. Jalamb was the place

where the tractor used to be parked when not in operation. So, returning

to the place of its parking by the tractor after performing agricultural

operations would also be something which is incidental to the

agricultural operations and as such, it cannot be said that the accident

had occurred at the time when the tractor was engaged in operations

other than agricultural. Besides, the first witness of the appellant

(OW 1) has also admitted that the tractor was being used for agricultural

purposes, which has been rightly considered by the Tribunal as a fact

going against the defence of the appellant taken in this regard and

showing flippant attitude of the appellant.

14. Learned counsel for the appellant has invited my attention to

the case of National Insurance Co. Ltd. vs. Smt. Vimlesh and others,

which is Judgment delivered by the Rajasthan High Court, Bench at

Jaipur, in S.B. Civil Misc. Appeal No.1514/2003, decided on 15.11.2011.

In this case, it has been held that the insurance company was not liable

J-fa629.06.odt 10/11

as the policy covered only the risk of the driver alone and that the

deceased was travelling in the trolley attached with the tractor as a

passenger. The facts of the present case are different. The deceased was

travelling not as a passenger but as employee of respondent No.7. There

is also no evidence to show that the risk of the employee was not

covered. Therefore, I do not think that any reliance can be placed by the

appellant on the said case decided by the learned Single Judge of

Rajasthan High Court.

15. Learned counsel for the appellant has also invited my

attention to the observations of the learned Single Judge made in the

said case of Smt. Vimlesh (supra) by relying upon the view taken by the

Hon'ble Apex Court in the case of National Insurance Company Ltd. vs.

Chinnamma and others, reported in 2004(3) TAC 577 (SC). The

Hon'ble Apex Court has held in this case that when a tractor trolley is

used for transportation of vegetables to a market place for their sale by a

businessman, the activity could have no relation with any agricultural

work whatsoever. In the present case, the facts are different. The tractor

was not being used for transporting any agricultural produce to a market

place for its being sold there. The tractor in question was sent to a farm

land situated at Kherda for its being used for ploughing the field and the

tractor was returning to its place where its used to be kept ordinarily

when not in work, which was Jalamb, after completing the ploughing

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work on the agricultural field of one Dwarkadas Agrawal. Return of a

tractor like the one involved in this case to the place where it would be

standing while not engaged for any agricultural work, would be an

activity incidental or ancillary to its main work of performing agricultural

operations, which is the case here. Therefore, in my humble opinion, no

reliance could be placed by the appellant on the said case.

16. In the result, I find no merit in this appeal. The appeal

deserves to be dismissed.

17. The appeal stands dismissed.

18. Parties to bear their own costs.

19. The respondent Nos.1 to 6 are permitted to withdraw the

balance amount lying in deposit with this Court together with accrued

interest, if any.

JUDGE okMksns