Bombay High Court
Bajaj Allianz General Insurance ... vs Sunita Jagannath Dharmadhikari ... on 21 December, 2017
Bench: K. K. Sonawane
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 3991 OF 2016
Bajaj Allianz General Insurance Co. Ltd.
The Legal Manager,
1st Floor, G.E. Plaza, Airport Road,
Yerwada, Pune - 411 006
Through its Branch Manager/Authorized Signatory,
2nd Floor LIC Building Rajendra Bhavan,
Adalat Road, Aurangabad ... APPELLANT
(Ori. Respdt. No. 2)
VERSUS.
1. Sunita Jagannath Dharmadhikari,
Age : 53 years, Occu: Housewife,
2. Smt. Kusum Prabhakar Dharmadhikari,
Age : 83 years, Occu. Nil.
3. Ganesh Jagannath Dharmadhikari,
Age: 33 years, occu. Singer,
All R/o Ward No. 7 Shrirampur,
Taluka Shrirampur, District Ahmednagar.
4. Arun Dada Bansode,
Age: Major, occu. Owner,
R/o: Dattanagar, Shrirampur,
District Ahmednagar.
5. Afsar Imam Bagwan,
Age: Major, Occup. Driver,
R/o : Dattanagar, Taluka Shrirampur,
District Ahmednagar. .....RESPONDENTS
(Respdt. No. 1 to 3 ori. Claimants
Respdt.Nos. 4 & 5 Ori. Respdt. Nos. 1 & 3 )
...
WITH
FIRST APPEAL NO. 3984 OF 2016
Bajaj Allianz General Insurance Co. Ltd.
The Legal Manager,
1st Floor, G.E. Plaza, Airport Road,
Yerwada, Pune - 411 006
Through its Branch Manager/Authorized Signatory,
2nd Floor LIC Building Rajendra Bhavan,
Adalat Road, Aurangabad ... APPELLANT
(Ori. Respdt. No. 2)
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2 FA-3991-16-GROUP
VERSUS.
1. Nishad Ganesh Dharmadhikari,
Age : 6 years, Occu.: Education,
Being minor, under Guardianship of his father,
Ganesh Jagannath Dharmadhikari,
Age : 33 years, Occu.: Drum Pietter,
R/o. : Ward No.7, Shrirampur,
Taluka Shrirampur, District : Ahmednagar.
2. Arun Dada Bansode,
Age: Major, occu. Owner,
R/o: Dattanagar, Shrirampur,
District Ahmednagar.
3. Afsar Imam Bagwan,
Age: Major, Occup. Driver,
R/o : Dattanagar, Taluka Shrirampur,
District Ahmednagar. .....RESPONDENTS
(Respdt. No.1 Org. Claimant, Respdt
Nos. 2 & 3 Or. Respdt. Nos. 1 & 3)
WITH
FIRST APPEAL NO. 3985 OF 2016
Bajaj Allianz General Insurance Co. Ltd.
The Legal Manager,
1st Floor, G.E. Plaza, Airport Road,
Yerwada, Pune - 411 006
Through its Branch Manager/Authorized Signatory,
2nd Floor LIC Building Rajendra Bhavan,
Adalat Road, Aurangabad ... APPELLANT
(Ori. Respdt. No. 2)
VERSUS.
1. Madhuvanti Ganesh Dharmadhikari,
Age : 29 years, Occu.: Tailoring Work,
R/o.: Ward No.7, Shrirampur,
Taluka Shrirampur, District Ahmednagar.
2. Arun Dada Bansode,
Age: Major, occu. Owner,
R/o: Dattanagar, Shrirampur,
District Ahmednagar.
3. Afsar Imam Bagwan,
Age: Major, Occup. Driver,
R/o : Dattanagar, Taluka Shrirampur,
District Ahmednagar. .....RESPONDENTS
(Respdt. No. 1 ori. Claimant
Respdt. Nos.2 & 3 Ori. Respdt. Nos. 1 & 3 )
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3 FA-3991-16-GROUP
WITH
FIRST APPEAL NO. 3986 OF 2016
Bajaj Allianz General Insurance Co. Ltd.
The Legal Manager,
1st Floor, G.E. Plaza, Airport Road,
Yerwada, Pune - 411 006
Through its Branch Manager/Authorized Signatory,
2nd Floor LIC Building Rajendra Bhavan,
Adalat Road, Aurangabad ... APPELLANT
(Ori. Respdt. No. 2)
VERSUS.
1. Prasad Nandkumar Kulkarni,
Age : 43 years, Occu.: Business,
R/o.: Ward No.7, Shrirampur,
Taluka Shrirampur, District Ahmednagar.
2. Arun Dada Bansode,
Age: Major, occu. Owner,
R/o: Dattanagar, Shrirampur,
District Ahmednagar.
3. Afsar Imam Bagwan,
Age: Major, Occup. Driver,
R/o : Dattanagar, Taluka Shrirampur,
District Ahmednagar. .....RESPONDENTS
(Respdt. No. 1 ori. Claimant
Respdt. Nos.2 & 3 Ori. Respdt. Nos. 1 & 3 )
WITH
FIRST APPEAL NO. 3987 OF 2016
Bajaj Allianz General Insurance Co. Ltd.
The Legal Manager,
1st Floor, G.E. Plaza, Airport Road,
Yerwada, Pune - 411 006
Through its Branch Manager/Authorized Signatory,
2nd Floor LIC Building Rajendra Bhavan,
Adalat Road, Aurangabad ... APPELLANT
(Ori. Respdt. No. 2)
VERSUS.
1. Prakash Prabhakar Dharmadhikari,
Age : 59 years, Occu.: Service,
R/o.: Ward No.1, Shrirampur,
Taluka Shrirampur, District Ahmednagar.
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4 FA-3991-16-GROUP
2. Arun Dada Bansode,
Age: Major, occu. Owner,
R/o: Dattanagar, Shrirampur,
District Ahmednagar.
3. Afsar Imam Bagwan,
Age: Major, Occup. Driver,
R/o : Dattanagar, Taluka Shrirampur,
District Ahmednagar. .....RESPONDENTS
(Respdt. No. 1 ori. Claimant
Respdt. Nos.2 & 3 Ori. Respdt. Nos. 1 & 3 )
...
WITH
FIRST APPEAL NO. 3988 OF 2016
Bajaj Allianz General Insurance Co. Ltd.
The Legal Manager,
1st Floor, G.E. Plaza, Airport Road,
Yerwada, Pune - 411 006
Through its Branch Manager/Authorized Signatory,
2nd Floor LIC Building Rajendra Bhavan,
Adalat Road, Aurangabad ... APPELLANT
(Ori. Respdt. No. 2)
VERSUS.
1. Ketki Prasad Kulkarni,
Age : 6 years, Occu.: Student,
Being Minor U/g of her father,
Prasad Nandkumar Kulkarni
Age : 43 years, Occu.: Business,
R/o.: Ward No.7, Shrirampur,
Taluka Shrirampur, District Ahmednagar.
2. Arun Dada Bansode,
Age: Major, occu. Owner,
R/o: Dattanagar, Shrirampur,
District Ahmednagar.
3. Afsar Imam Bagwan,
Age: Major, Occup. Driver,
R/o : Dattanagar, Taluka Shrirampur,
District Ahmednagar. .....RESPONDENTS
(Respdt. No. 1 ori. Claimant
Respdt. Nos.2 & 3 Ori. Respdt. Nos. 1 & 3 )
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5 FA-3991-16-GROUP
WITH
FIRST APPEAL NO. 3989 OF 2016
Bajaj Allianz General Insurance Co. Ltd.
The Legal Manager,
1st Floor, G.E. Plaza, Airport Road,
Yerwada, Pune - 411 006
Through its Branch Manager/Authorized Signatory,
2nd Floor LIC Building Rajendra Bhavan,
Adalat Road, Aurangabad ... APPELLANT
(Ori. Respdt. No. 2)
VERSUS.
1. Pranjali @ Dipti Prasad Kulkarni,
Age : 39 years, Occu.: Service,
R/o.: Ward No.7, Shrirampur,
Taluka Shrirampur, District Ahmednagar.
2. Arun Dada Bansode,
Age: Major, occu. Owner,
R/o: Dattanagar, Shrirampur,
District Ahmednagar.
3. Afsar Imam Bagwan,
Age: Major, Occup. Driver,
R/o : Dattanagar, Taluka Shrirampur,
District Ahmednagar. .....RESPONDENTS
(Respdt. No. 1 ori. Claimant
Respdt. Nos.2 & 3 Ori. Respdt. Nos. 1 & 3 )
WITH
FIRST APPEAL NO. 3990 OF 2016
Bajaj Allianz General Insurance Co. Ltd.
The Legal Manager,
1st Floor, G.E. Plaza, Airport Road,
Yerwada, Pune - 411 006
Through its Branch Manager/Authorized Signatory,
2nd Floor LIC Building Rajendra Bhavan,
Adalat Road, Aurangabad ... APPELLANT
(Ori. Respdt. No. 2)
VERSUS.
1. Ganesh Jagannath Dharmadhikari,
Age : 33 years, Occu.: Drum Pitter,
R/o.: Ward No.7, Shrirampur,
Taluka Shrirampur, District Ahmednagar.
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6 FA-3991-16-GROUP
2. Arun Dada Bansode,
Age: Major, occu. Owner,
R/o: Dattanagar, Shrirampur,
District Ahmednagar.
3. Afsar Imam Bagwan,
Age: Major, Occup. Driver,
R/o : Dattanagar, Taluka Shrirampur,
District Ahmednagar. .....RESPONDENTS
(Respdt. No. 1 ori. Claimant
Respdt. Nos.2 & 3 Ori. Respdt. Nos. 1 & 3 )
....
Mr. M.R. Deshmukh h/f Mr. S.G. Chapalgaonkar, Advocate for appellant
Mr. R.A. Tambe, Advocate for respondents -original claimants
Mr. S.H. Pathan, Advocate h/f Mr. Mazhar A. Jahagirdar, for
respondents owner and driver
...
CORAM : K.K. SONAWANE, J.
RESERVED ON : 29 th NOVEMBER, 2017.
DELIVERED ON : 21st DECEMBER, 2017.
JUDGMENT :-
1. Heard. Admit. With consent of the learned counsel for parties,
the matters are heard at the time of admission.
2. This bunch of first appeals came to be filed on behalf of Bajaj
Allianz General Insurance Co. Ltd. assailing the findings expressed by
the Motor Accident Claims Tribunal, Shrirampur District Ahmednagar
(hereinafter referred to as "Tribunal"), in the proceedings of Motor
Accident Claim Petitions initiated by the respective claimants seeking
compensation under section 166 of the Motor Vehicles Act, 1988 (for
short " Act of 1988"). The legal issues involved in all these appeals are
pertains to statutory defence as envisaged under section 149(2)(a) of
the Act of 1988 for breach of condition of Insurance Policy to repudiate
the liability of indemnify the insured. Therefore, all these appeals are
7 FA-3991-16-GROUP
dealt with by this common judgment sans adverting to individuals facts
of each and every matter.
3. It is not in dispute that the appellant - Insurance Company was
the insurer of vehicle - Trax - cruiser jeep bearing registration No. MH-
17/AJ-1527 involved in the accident occurred on 14-06-2012. It has
been contended that all the respective claimants, their relatives and
friends etc., had been to Gao on excursion. Unfortunately, while return
journey, the vehicle jeep met with an accident on Radhanagari -
Kolhapur Highway within the vicinity of Khindivarvade village. It has
been alleged that the driver of jeep was very rash and negligent while
driving the vehicle. When he was negotiating the curve in the Ghat
section, he lost the control on the wheels and vehicle turned turtle. It
plunged into the 20" deep ditch aside the road. The information of the
mishap was passed on to the Police of Radhanagri Police Station.
Accordingly, Police arrived at the spot. They drawn the spot
panchnama. The occupants of the jeep who sustained injuries were
escorted to the hospital at Kolhapur. However, the illfated Passenger
namely Jagannath Prabhakar Dharmadhikari breathed his last on the
spot of incident itself. Police drawn the inquest panchnama on his dead
body and referred it for post-mortem. The medical experts conducted
the post-mortem and opined that the deceased Jagannath succumbed
to the injuries caused to vital organs following vehicular accident. The
respondents - claimants blamed the driver for rash and negligent
driving resulting into alleged accident. Therefore, the claimants taking
recourse of remedy under section 166 of the Act of 1988 preferred the
respective claim petition for compensation.
8 FA-3991-16-GROUP
4. The respondents i.e. owner and driver as well as insurer of the
offending vehicle caused their appearance before the Tribunal and
resisted the claim. The appellant Insurance Company filed the written
statement (Exhibit-30) and raised the objection that the driver of the
vehicle jeep was not holding the valid driving licence. The insured
vehicle was registered as a private vehicle and policy was issued under
Private Car Package. But, the vehicle was used for commercial purpose.
The use of vehicle for commercial purpose was in contravention of
terms and conditions of Insurance Policy. Moreover, the vehicle was
carrying the passenger more than the permitted capacity. Therefore,
the insurer was not liable to indemnify the insured.
5. The learned member of the Tribunal framed the requisite issues
and proceeded to determine the matter in controversy on merit. The
respondent claimants examined themselves on oath. They have also
produced the voluminous documents on record comprising police
record, driving licence of the jeep driver, R.T.O documents of offending
vehicle, medical documents etc. The respondent - Insurance Company
adduced the evidence of its office personnel Shri Anil Ravindra
Yawalkar to traverse the claim propounded on behalf of claimants. The
R.T.O. Personnel was also examined in the MACP No. 133 of 2013. The
Tribunal has considered the entire facts and circumstances brought on
record and pleased to allow the claim petitions partly, by imposing
monetary liability, jointly and severally, on the respondents for
payment of compensation amount to the respective claimants. Being
dissatisfied with the impugned order of joint and several liability, the
appellant insurance company preferred these bunch of appeals to
9 FA-3991-16-GROUP
redress its grievance.
6. The learned counsel for the appellant-Insurance Company
vehemently submitted that the Tribunal did not appreciate the facts
and circumstances of the matter in its proper perspective and
committed error in imposing the liability jointly and severally on the
Insurance Company. The learned counsel contends that there was a
breach of condition of Insurance Contract. He added that the Tribunal
did not pay any heed to the circumstance that the driver of the
offending vehicle was not holding valid driving licence at the time of
accident. Moreover, the vehicle was registered as Private vehicle and
Insurance Policy was issued under caption of "Private Car Package
Policy". The vehicle was not permitted to utilize for commercial purpose
and there was a limitation as to use of vehicle under policy. Learned
counsel drawn attention towards the cross-examination of claimant
-Sunita Jagannath Dharmadhikari, wherein she admitted that vehicle
was not owned by any of the occupants of the jeep, but they hired the
vehicle on rent @ Rs. 10/- per K.M. In view of these circumstances,
there was a breach of condition of the policy. Hence, under section
149(2) of the Act of 1988 insurer is not liable to indemnify the insured.
According to learned counsel, appellant-Insurance Company has
adduced the evidence of its Senior Executive Personnel Shri Amit
Ravindra Yawalkar before the Tribunal. He categorically stated that
vehicle involved in the accident was insured under the Private Car
Package Policy. There was limitation to the use of vehicle claimed
under policy but the Tribunal did not appreciate all these circumstances
in proper manner. The learned counsel further alleged that the vehicle
10 FA-3991-16-GROUP
involved in the accident was carrying near about 14 passengers at the
time of accident. The vehicle was permitted only to carry 9 passengers
as per Insurance Policy, and therefore, there was violation of breach of
condition. Hence, respondent - Insurance Company is entitled to avoid
liability for payment of compensation jointly and severally with owner
and driver of the offending vehicle. Eventually, learned counsel urged
that appellant-Insurance Company be exonerate from the monetary
liability.
7. The pivotal issue to be determined in all these appeals is in
regard to statutory defence available to the appellant -Insurance
Company as provided under section 149(2) of the Act of 1988.
According to appellant - Insurance Company, it has an legal right to
repudiate the liability of payment of compensation in respect of
accident involving death as well bodily injuries to the claimants arising
out of use of vehicle Jeep insured with the appellant.
8. It is true that appellant-Insurance Company since beginning
gave much more emphasis on the factum of breach of condition of
Insurance Contract in this case. It has been alleged that driver of the
vehicle involved in the accident was not holding valid driving licence at
the time of accident. Moreover, the vehicle was registered as private
vehicle and it was insured under the Private Car Package Policy. There
was limitation as to the use of vehicle, but the vehicle was used for hire
and reward basis. There were allegations that vehicle was carrying
more number of passengers than the permitted under the policy. In the
result, there was breach of condition of the contract and consequently,
11 FA-3991-16-GROUP
it is imperative to absolve the appellant -Insurance Company from the
liability to identify the insured in these cases.
9. Admittedly, the defence which the appellant - Insurance
Company is entitled to take in the cases of compensation arising out of
the motor vehicle accident is provided under section 149(2) of the Act
of 1988. Provisions of section 149(2) of the Act of 1988 is reproduced
as below:
149: Duty of insurers to satisfy judgments
and awards against persons insured in respect
of third party risks.:
(1) XXX XXX XXX XXX XXX XXX XXX
(2) No sum shall be payable by an insurer under
sub-section (1) in respect of any judgment or award
unless, before the commencement of the
proceedings in which the judgment or award is given
the insurer had notice through the Court or, as the
case may be, the Claims Tribunal of the bringing of
the proceedings, or in respect of such judgment or
award so long as execution is stayed thereon
pending an appeal; and an insurer to whom notice
of the bringing of any such proceedings is so given
shall be entitled to be made a party thereto and to
defend the action on any of the following grounds,
namely:--
(a) that there has been a breach of a specified
condition of the policy, being one of the following
conditions, namely:--
(i) a condition excluding the use of the
vehicle--
(a) for hire or reward, where the vehicle is on
12 FA-3991-16-GROUP
the date of the contract of insurance a vehicle
not covered by a permit to ply for hire or
reward, or
(b) for organised racing and speed testing, or
(c) for a purpose not allowed by the permit
under which the vehicle is used, where the
vehicle is a transport vehicle, or
(d) without side-car being attached where the
vehicle is a motor cycle; or
(ii) a condition excluding driving by a named
person or persons or by any person who is not duly
licensed, or by any person who has been disqualified
for holding or obtaining a driving licence during the
period of disqualification; or
(iii) a condition excluding liability for injury caused
or contributed to by conditions of war,civil war, riot
or civil commotion; or
(b) xxx xxx xxx xxx xxx xxx
10. Their Lordships of Hon'ble Apex Court in the case of National
Insurance Company v/s Nicolletta Rohtagi reported in 2002 (7)
SCC 456 received an opportunity to deal with provisions of section
149(2) of the Act of 1988 and it has been laid down that the Insurer is
allowed to contest the claim for compensation under Motor Vehicles Act
only on the ground which are available in terms of sub-section (2) of
section 149 of the Act of 1988. Their Lordships in paragraph No. 13
observed as under :
"13. To answer the question, it is necessary
13 FA-3991-16-GROUP
to find out on what grounds the insurer is
entitled to defend/contest against a claim by
an injured or dependents of the victims of a
motor vehicle accident. Under Section 96(2)
of the 1939 Act which corresponds to Section
149(2) of the 1988 Act, an insurance
company has no right to be a party to an
action by the injured person or dependents
of the deceased against the insured.
However, the said provisions gives the
insurer the right to be made a party to the
case and to defend it. It is, therefore,
obvious that the said right is a creature of
the statute and its content depends on the
provisions of the statute. After the insurer
has been made a party to a case or claim,
the question arises, what are the defences
available to it under the statute? The
language employed in enacting sub-section
(2) of Section 149 appears to be plain and
there is no ambiguity in it. It shows that
when an insurer is impleaded and has been
given notice of the case, he is entitled to
defend the action on grounds enumerated in
the sub-section, namely, sub-section (2) of
Section 149 of the 1988 Act, and no other
ground is available to him. The insurer is not
allowed to contest the claim of the injured or
heirs of the deceased on other ground which
is available to an insured or breach of any
other conditions of the policy which do not
find place in sub-section (2) of Section 149
of the 1988 Act. If an insurer is permitted to
contest the claim on other grounds it would
be adding more grounds of contest to the
14 FA-3991-16-GROUP
insurer than what the statute has specifically
provided for."
11. In view of aforesaid legal guidelines, it is crystal clear that
appellant - Insurance Company has an locus standi to avail statutory
defence subject to provisions of Section 149(2) of the Act of 1988 in
the matter of motor accident claim to avoid liability to indemnify the
insured. In case, the appellant - Insurance Company succeed to
establish that the insured allowed the driver to drive the vehicle
without possessing valid driving licence as well as he intentionally and
willfully permitted the use of vehicle for hire and reward or carrying the
passengers more than sanctioned capacity, then the appellant -
Insurance Company has a legal right to repudiate the liability to pay
the compensation for the loss caused due to vehicular accident. But,
such breach of terms and conditions of the contract must be
established with cogent and succinct evidence.
12. In case of National Insurance Company Ltd. Vs. Swaran
Singh reported in 2004(3) SC 297, it has been held that the degree
of proof to establish on the part of insurer would depend upon the fact
and circumstances of each case and it should be proved by cogent,
succinct and reliable evidence on record. It has also been observed that
if there are sufficient material on record to draw adverse inference
pertains to breach of Insurance Contract, the Tribunal may exonerate
the insurer from the liability to indemnify the insured. In paragraph No
69 and 70 Their Lordships has observed as under :
"69. The proposition of law is no longer res
integra that the person who alleges breach must
15 FA-3991-16-GROUP
prove the same. The insurance company is, thus,
required to establish the said breach by cogent
evidence. In the event the insurance company fails
to prove that there has been breach of conditions
of policy on the part of the insured, the insurance
company cannot be absolved of its liability. (See
Sohan Lal Passi).
70. Apart from the above, we do not intend to
lay down anything further i.e. degree of proof
which would satisfy the aforementioned
requirements inasmuch as the same would
indisputably depend upon the facts and
circumstances of each case. It will also depend
upon the terms of contract of insurance. Each case
my pose a different problem which must be
resolved having regard to a large number of factors
governing the case including conduct of parties as
regards duty to inform, correct disclosure,
suppression, fraud on the insurer etc. It will also
depend upon the fact as to who is the owner of the
vehicle and the circumstances in which the vehicle
was being driven by a person having no valid and
effective licence. No hard-and-fast rule can,
therefor, be laid down. If in a given case there
exists sufficient material to draw an adverse
inference against either the insurer or the insured,
the Tribunal may do so. The parties alleging breach
must be held to have succeeded in establishing the
breach of conditions of the contract of insurance,
on the part of the insurer by discharging its burden
of proof. The Tribunal, there cannot be any doubt.
Must arrive at a finding on the basis of the
materials available on records."
13. Keeping in mind the expositions of law, it is manifestly clear
16 FA-3991-16-GROUP
that defence of the appellant-Insurance Company is confined only to
the extent of grounds enumerated under section 149(2) of the Act of
1988. There should be Contract of Insurance as per terms and
conditions embodied in the policy. In case of any breach of terms and
conditions of the policy, it is incumbent for insurer to establish the
breach of condition with reliable evidence. In the matter in hand, the
appellant - Insurance Company cast allegation that the driver of
offending vehicle was not holding valid licence at the time of alleged
accident. But, the document (Exhibit-42) produced in MACP No. 130 of
2013 was the driving licence of respondent - driver of the offending
vehicle. The licence was issued for driving the transport vehicle on
01-11-2011 and was valid uptill 31-10-2014. The alleged vehicular
accident occurred on 14-06-2012. These circumstances demonstrate
that driver of the offending vehicle did possess the valid driving licence
at the time of alleged accident. Therefore, there is no force in the
objection raised on behalf of Appellant -Insurance Company that there
was no valid driving licence with the driver of offending vehicle.
14. The appellant-Insurance company vociferously raised another
ground for breach of terms and conditions of the Insurance Contract
that the vehicle was used for hire or reward in contravention of the
terms of the policy. It has also propounded on behalf of appellant that
one of the conditions of insurance policy covering the vehicle involved
in the accident was pertains to limitation as to use of vehicle. The
clause contemplates that policy covers use of the vehicle for any
purpose other than Hire or reward, Carriage of goods, Organised
racing, pace making, Speed Testing, Reliability to trials, and any
17 FA-3991-16-GROUP
purpose in connection with Motor Trade. In the matter in hand, it has
been alleged that claimants were travelling in the vehicle Trax by hiring
it on the rent @ Rs.10/- per K.M. The claimants were not owner of the
vehicle. It has brought on record in MACP No. 130 of 2013 that
claimant-Sunita Dharmadhikari herself admitted in her cross
examination that vehicle was taken on rent @ of Rs. 10/- per k.m.
Keeping explicit reliance on the version of sole statement of claimant
Sunita, the appellant - Insurance Company claimed statutory defence
to exonerate it from monetary liability.
15. As referred supra, it is obligatory on the part of appellant-Insurer
to establish the circumstances of breach of condition with cogent and
succinct evidence. There should be some reliable circumstance on
record to draw adverse inference against owner of the vehicle that he
intentionally and purposely ventured to contravened the terms and
conditions of contract. It cannot be overlooked that the motor vehicle
Act, 1988, is a social welfare legislation and therefore, provisions of
Law contained in the Act are required to be interpreted so as to award
just and proper compensation to the claimants. In the case of breach of
condition the onus of proof would be upon insurer. It is also necessary
to prove that the breach was with the knowledge of owner of offending
vehicle.
16. Unfortunately, in the instant matter; except solitary stray
statement of claimant Sunita in MACP No. 130 of 2013, there are no
any other circumstances on record to conclude that the owner of the
offending vehicle intentionally with knowledge committed breach of
18 FA-3991-16-GROUP
conditions of Insurance Policy. It is worth to mention that except the
claimant Sunita, no any other claimants-occupants of the jeep
conceded that the vehicle was hired for excursion on rent @ Rs. 10/-
per k.m. In contrast, they categorically denied the fact that they
hired the jeep on rent basis. They stated that owner allowed them to
use the vehicle on petrol basis. The Tribunal has correctly appreciated
circumstances on record and found reluctant to give much more
weightage to the stray statement of claimant Sunita in this case. The
Tribunal denied to accept statutory defence propounded on behalf of
insurer.
17. It would reiterate that the appellant-Insurer did not adduce
evidence on record to show that there was breach of terms and
conditions of the policy. The Office Personnels of respondent Shri Amit
Yawalkar deposed about conditions stipulated under Insurance Policy
and produced it on record. According to him, offending vehicle was
registered as Private Car and the same was insured under "Private Car
Package Policy". The evidence of Office Personnel of the appellant-
Insurance Company would not facilitate to draw adverse inference
against insured that he committed breach of terms and conditions of
the Insurance Contract. The vehicle being private car was not put in
controversy in this case. The claimants also categorically denied about
the use of vehicle on rent by them. Moreover, they denied that there
were near-about 14 occupants travelling in the jeep. The appellant-
Insurance Company made attempt to rely upon the police record, more
particularly, the FIR produced on record which reflects that near about
14 passengers were travelling in the jeep at the relevant time of
19 FA-3991-16-GROUP
accident.
18. The law postulates that the document of FIR was meant only for
the purpose to set the criminal law in motion. The recitals of the police
record would not be considered or appreciated without any substantive
evidence of witnesses. The Police record made available in these cases
cannot be read in favour of appellant to draw inference about breach of
conditions of Insurance Policy. There were no efforts on behalf of
insurer to adduce evidence of Police Personnel, who lodged the FIR on
the basis of information collected by him at the spot of accident itself.
Moreover, no endeavour to examine witnesses, who had an
acquaintance with the relevant facts and circumstances in which the
accident occurred at the relevant time. In absence of any credible and
reliable evidence, it would hazardous to blindly act upon the defence of
the appellant- Insurance Company for the allegation of breach of
conditions of Insurance Contract in this case. Undoubtedly, the
appellant-Insurance Company has a legal right to invoke statutory
defence under section 149(2) of the Act of 1988. But, simultaneously it
is also obligatory on the part of appellant -Insurance Company to
establish the circumstances of breach of condition of contract with
reliable, dependable and credible evidence for adverse inference
against owner of offending vehicle. In the instant case, it is hard to
believe that there was breach of condition of Insurance Policy. The
appellant Insurance Company failed to discharge its onus to repudiate
the liability.
19. In the above premise, there is no impediment to arrive at the
20 FA-3991-16-GROUP
conclusion that the appellant - Insurance Company did not succeed to
bring on record, reliable circumstances for adverse inference of breach
of condition of Insurance Contract. The legal guidelines delineated in
aforesaid Swaran Singh's Case mandate that there must be some
material available on record to draw adverse inference against insurer.
The appellant did not discharge its burden to prove that the breach was
within the knowledge of owner of vehicle. Except the solitary stray
statement made by claimant Sunita in her cross-examination, there
are no any other circumstances available on record to prop-up the
edifice of statutory defence propounded on behalf of appellant -
Insurance Company. In such circumstances, there is no propriety to
nod in favour of appellant. The interference in the findings expressed
by the Tribunal is totally unwarranted and indefensible. The appeals
being devoid of merit deserve to be dismissed. There would not be any
interference in the findings of the Tribunal at the behest of the
appellant -Insurance Company in these cases.
20. In view of aforesaid discussion, all the appeals stand dismissed.
No order as to costs.
[ K. K. SONAWANE ]
JUDGE
MTK.
***
