The Branch Manager, The New India ... vs Chandrabhan Kashiram Lanjewar ...
2017 Latest Caselaw 9349 Bom

                                                  1




        IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                         NAGPUR BENCH : NAGPUR



First Appeal No. 644  of 2006

 

Appellant :              The Branch Manager, The New India Assurance
                         Co. Ltd., Nagpur, Branch-1 (160101) Vijay Bhavan,
                         2nd floor, Lokmat Chowk, Nagpur

                         Versus

Respondents:             1)    Chandrabhan Kashiram Lanjewar, aged about
                         67 years, Occ: Nil

                         2) Sumanbai Chandrabhan Lanjewar, aged about
                         62 years, Occ: Household

                         3) Machindra Chandrabhan Lanjewar, aged about
                         23 years, Occ: Student

                         4) Roshnabai Chandrabhan Lanjewar, aged about
                         19 years, Occ: Student

                         All residents of  Kuhi, Tahsil Kuhi, Dist. Nagpur

                         5) Narayan Damduji Bante, aged Major, Occ: Owner,
                         resident of Chipadi, Tahsil Kuhi, Dist. Nagpur

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Shri S. N. Dhanagare, Advocate for appellant Ms Pathade, Advocate for respondents 1 to 4 Respondent no. 5 served

Coram : S. B. Shukre, J

Dated : 6th December 2017

Oral Judgment

1. This appeal challenges the legality and correctness of the

judgment and order dated 7th June 2006 passed by the Member, Motor

Accident Claims Tribunal, Nagpur in Claim Petition No. 1007 of 1999.

2. Claim Petition filed under Section 166 of the Motor Vehicles

Act by respondents no. 1 to 4 sought compensation for the untimely death

of Dharmendra, son of respondents no. 1 and 2 and brother of

respondents no. 3 and 4. According to them, he was working as a

labourer at the time of accident. He died in the vehicular accident which

took place at about 11.30 am on 29.8.1999 near Gram Panchayat, Kuhi,

District Nagpur. At that time, Dharmendra was travelling by a trolly

attached to tractor bearing registration No. MH-31-Z-7818. The tractor

and trolly were owned by respondent no. 5 and insured with appellant at

that time. Respondent no. 5 did not file any Written Statement, but the

appellant filed its Written Statement and resisted the claim. The claim

petition was partly allowed on merits by the impugned judgment and

order. Not being satisfied with the same, the appellant is before this

Court in the present appeal.

3. I have heard Shri Dhanagare, learned counsel for the

appellant and Ms Pathade, learned counsel for respondents no. 1 to 4.

Nobody appears for respondent no. 5.

4. Now, the only point that arises for my determination is:

Whether the appellant Insurance Company has proved

that there was breach of the terms and conditions of the

insurance policy and, therefore, the appellant was not liable\

to pay any compensation ?

5. According to learned counsel for the appellant, the appellant

proved the breach of the terms and conditions of the insurance policy and,

therefore, it was not liable to pay any compensation, which has been

disagreed to by learned counsel for respondents no. 1 to 4.

6. Of course, as rightly submitted by learned counsel for the

appellant in the application filed under Section 166 of the Motor Vehicles

Act, respondents no. 1 to 4 no where pleaded that deceased Dharmendra

was travelling by trolly in question in a capacity as labourer. But, the

witness for the claimants, CW 1 Chandrabhan has in his examination-in-

chief stated that at the relevant time, deceased was travelling by the said

tractor and trolly as a labourer. On this assertion, CW 1 Chandrabhan has

also been cross-examined by the appellant. A suggestion of denial of this

assertion has been given to CW 1 Chandrabhan which has been denied by

him.

7. So, even though there has been no pleading taken in the

application, a case about travelling of the deceased in the capacity as a

labourer by the trolly in question has been made out later on by the

respondents. Learned counsel for the appellant would submit that if there

is no pleading taken in the application, the evidence not supported by the

pleading should not be admitted. I do not think that the contention is

correct. It is well settled law that strict rules of evidence do not apply to

the petitions seeking compensation under Section 166 of the Motor

Vehicles Act. The rules of pleadings, broadly speaking, would be

applicable as long as the absence of pleadings is accompanied by the

prejudice caused to the other side. If a new case has been made out at a

subsequent stage, without there being any pleadings made in that regard,

the issue would have to be examined by the Court from the view point of

the prejudice having been caused to the other side. Then, the Court

would have to consider whether the other side has been taken by surprise

and could not get sufficient time to meet the case newly made out. If no

prejudice is seen to be caused to the other side, obviously absence of

pleadings will have to be considered as irrelevant.

8. In the present case, if one considers the evidence of CW 1

Chandrabhan and the own pleadings of appellant taken in its Written

Statement, one would find that the appellant was at no point of time

taken by surprise. Therefore, there is no question of causing of any

prejudice to the defence of the appellant by a new case put up by the

claimants at the time of their evidence. Even in the Written Statement, a

submission has been made that the deceased was driving by the trolly in

question at the relevant time as a passenger and not as a labourer. Then,

on this question, the witness for the claimants has also been subjected to

cross-examination. So, prejudice to the defence of the appellant is absent

in the present case.

9. In the circumstances, I find that there is no substance in the

argument of learned counsel for the appellant that no new case could

have been allowed to be made out by the claimants.

10. It is also the submission of learned counsel for the appellant

that even if the evidence of the claimants' witness is accepted as it is, still,

it could not be seen to be establishing the fact that the deceased was

really travelling by the trolly as a labourer, because the owner of the

tractor and trolly was not examined by them. The argument cannot be

accepted for the reason that it was not the job of the claimants to summon

a party, in opposition to it, as its witness. Rather, the owner of the

offending vehicle could have been summoned as a witness by this

appellant. But, this was not done in the present case. This would require

drawing of an adverse inference against the appellant that it did not

examine the owner, because the owner would not have supported its

defence that the deceased was travelling by trolly in question as a mere

passenger and not as a labourer.

11. Even otherwise, there is no reason for me to reject the

evidence of CW 1 Chandrabhan on the point of travelling of deceased

Dharmendra by the offending vehicle as a labourer. Chandrabhan was

the father of deceased Dharmendra and could be presumed reasonably to

have possessed the knowledge of what his son did for making a living.

There are no circumstances brought on record by the appellant in

evidence of this witness to entertain any doubt about his credibility.

Therefore, accepting his evidence as reliable, I find that the claimants

have proved in a reasonable manner by the law of probability that

deceased Dharmendra was travelling by the offending vehicle at the

relevant time as a labourer. Once this is found and which has been

rightly found by the Tribunal, the Insurance Company would be obliged

to pay the compensation along with owner of the offending vehicle. Thus,

I find no ground for making any interference with the findings recorded

by the Tribunal.

12. In the result, I am of the view that there is no merit in the

appeal and it deserves to dismissed. Point is answered accordingly.

13. Appeal stands dismissed. Parties to bear their own costs.

CAF No. 3806 of 2017 : In view of dismissal of appeal,

application is allowed. Claimants are permitted to withdraw the amount

of compensation deposited in this Court by the appellant together with

accrued interest. Disposed of. I

S. B. SHUKRE, J

joshi