Icici Lombard General Insurance ... vs Sunita Ashok Rode And Ors
2017 Latest Caselaw 4450 Bom

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      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 BENCH AT AURANGABAD

                        FIRST APPEAL NO. 3 OF 2013


             ICICI Lombard General Insurance Co.
             Ltd., Through its Legal Officer,
             Mr Rahul Sanap,
             age 26 yrs, Occ. Service,
             R/o C/o. ICICI Lombard General
             Insurance Company Ltd.,
             Alaknanda, Ist Floor, Adalat Road,
             Aurangabad.                      ..appellant...
                                              (orig resp No.3)
             VERSUS

     1.      Sunita w/o Ashok Rode,
             age 42 yrs, Occ. Household

     2.      Amol s/o Ashok rode,
             age 23 yrs, Occ. Education,
             Residents of at Samarth Nagar,
             Post Kannad, Tq. Kannadl Dist.
             Aurangabad..                        ..Resp No.1 and 2
                                                 orig claimants....

     3.      Shaikh Ashpak s/o Sk Adiya
             @ Sk. Rafiq Ahmed,
             age 42 yrs, Occ. Transportation,
             R/o at Post Daulatabad, Tq. & Dist.
             Aurangabad.                Orig resp no.1 owner
                                              ...dismissed....

     4.      Tushar s/o Vilas Pimple,
             age 27 yrs, Occ. Rickshaw Driver,
             R/o Samarth Nagar, Kannad
             Dist. Aurangabad.          ..orig resp no.2 driver
                                               ...Respondents...



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                             ...
            Advocate for Appellant : Mr S S Patil  
         Advocate for Respondents 1,2 : Mr P F Patni 
                       R/3 Dismissed 
                             ...
                 CORAM : V.K. JADHAV, J.

Dated: July 13, 2017 ...

ORAL JUDGMENT :-

1. Being aggrieved by the judgment and award

passed by the Member, Motor Accident Claims Tribunal,

Aurangabad dated 24.1.2011 in MACP no.641/2008,

original respondent no.3-insurer has preferred this

appeal.

2. Brief facts, giving rise to this appeal are as

follows :-

a] On 5.4.2008, at about 02.00 p.m. deceased Ashok

was proceeding by ape rickshaw bearing registration

No.MH-20/T-3471 as a passenger from Pishor to

Kannad Road. On way, within the limits of village Hasta

Khandi, Tq. Kannad, Dist. Aurangabad, the driver of the

said ape rickshaw had driven it in high speed, and in

rash and negligent manner. In consequence of which,

ape rickshaw turned turtled. Deceased Ashok was

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seriously injured. He was immediately shifted to Rural

Hospital, Kannad, where he was declared dead on

arrival. The claimants legal representatives of deceased

Ashok approached the Tribunal by filing motor accident

claim petition no.641/2008 for grant of compensation

under various heads. It has been contended that

deceased Ashok was working in one sugar factory and

earning Rs.1.00 lac per annum and the appellants-

claimants were depending upon his income.

b] Respondent No.1 though duly served, remained

absent before the Tribunal and as such, hearing of the

claim petition ordered to proceed ex-parte against him.

c] Respondent No.2 has strongly resisted the claim

by filing written statement and denied that he was

driving ape rickshaw at the relevant time. The

appellant-insurer has also strongly resisted the claim

petition by filing written statement. It has been

contended that, driver of the ape rickshaw was not

holding valid and effective driving licence and

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passengers (more than capacity) were carried in the said

ape rickshaw and thus there has been breach of the

specified conditions of the policy.

d] The claimants have adduced oral and

documentary evidence in support of their contentions.

The appellant-insurer has also adduced oral and

documentary evidence. The learned Member of the

Tribunal by its impugned judgment and award dated

24.1.2011 allowed the claim petition and thereby

directed the respondents to pay compensation of

Rs.6,06,300/- jointly and severally with interest @ 9%

p.a. Hence, this appeal.

3. Learned counsel for the appellant-insurer submits

that, appellant-insurer has given notice to respondent

nos.1 and 2 for production of the licence, however,

respondent no.1 has not responded to the said notice

and respondent no.2 has submitted his reply and

contended therein that detail say has been filed in the

Court pending the claim petition and as such, matter is

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subjudiced before the Court. Learned counsel submits

that, appellant-insurer has also examined its legal

manager to substantiate its defence, however, the

Tribunal has not considered the same and fastened the

liability on the appellant-insurer to pay the

compensation jointly and severally alongwith

respondent-owner.

4. Learned counsel for respondents-claimants

submits that, burden is on the appellant-insurer to

prove the defence and, in the instant case, the

appellant-insurer has failed to discharge said burden.

Learned counsel submits that, in the given set of facts

and on the basis of oral and documentary evidence on

record, the learned Member of the Tribunal has also

observed that, respondent no.1 owner is not responsible

for the breach, if any, of the specified conditions of the

policy and as such, the appellant-insurer is liable to pay

the compensation jointly and severally alongwith

respondent owner. Learned counsel submits that, there

is no merit in the appeal and thus, the appeal is liable

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     to be dismissed.

5. During the pendency of the appeal, appeal came to

be dismissed against respondent owner for want of

steps. Appellant-insurer has not taken any steps to

restore the appeal against respondent-owner.

6. On careful perusal of the pleadings, evidence and

judgment and award passed by the Tribunal, it appears

that, appellant-insurer has failed to discharge the

burden to substantiate its defence that respondent no.2

was not having valid and effective driving licence at the

time of accident. Legal Manager of appellant-insurer

has admitted in his cross-examination that respondent

no.2 was not prosecuted for the offence of driving the

vehicle without having valid and effective valid licence.

He has also admitted that on verification of the police

papers, it does not transpired that respondent no.2 was

carrying more passengers than permitted. So far as

notice exh.55 is issued to respondent no.1 and 2 is

concerned, the same looses its significance since

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respondent no.2 has strongly resisted the claim petition

by filing his written statement. Thus, the burden is on

the appellant-insurer to substantiate its defence and as

such, the Tribunal has rightly saddled the liability on

the appellant-insurer to pay the compensation jointly

and severally alongwith respondent owner. I do not find

any substance in the appeal on merits. Further, the

appellant-insurer has also not taken any steps to restore

the appeal against respondent-owner and as such, in

absence of the respondent owner, the grounds raised by

the appellant-insurer in the present appeal cannot be

considered. Thus, on both the counts, the appeal is

liable to be dismissed. Hence, following order.

O R D E R

1. Appeal is hereby dismissed with costs.

2. If any amount is deposited before this Court, the respondents-claimants are permitted to withdraw the same.

3. Appeal is accordingly disposed of.

( V.K. JADHAV, J. ) aaa/-

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