Shamrao Baburao Dikale vs Rejendra Rupchand Malpani And Ors
2017 Latest Caselaw 4660 Bom

                                  1               FA 329.2007+CA.odt

      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 BENCH AT AURANGABAD

                      FIRST APPEAL NO. 329 OF 2007
                                 WITH 
                      CA/3454/2009 IN FA/329/2007

             Rajendra s/o Rupchand Malpani,
             age 47 yrs, Occ. Business,
             R/o Shriniketan Colony,
             Near S.T. Depot, Latur.       ..Appellant..

             VERSUS

     1.      National Insurance Co. Ltd.,
             Shivaji Chowk, Latur.

     2.      Oriental Insurance Co. Ltd.,
             Division Office, 442 West
             Mangalwar Peth, Solapur.

     3.      Sharnnya Parmeshwar Swami,
             age 32 yrs, Occ. Private Service,
             R/o Kothali, Tq. Omerga, Dist. 
             Osmanabad.

     4.     Shamrao s/o Baburao Dikale,
            age 55 yrs, Occ. Agri and Business,
            R/o Tandulwadi, Tq. Kallam
            Dist. Osmanabad.                  ..Respondents...
                                              orig petitioners.
                                   ...

Advocate for Appellants : Smt A B Dube Advocate for Respondents : Mr Rupesh Bora h/f P P Bafna for respondent no.1, Mr Sapkal V.D. For R/4 None present for respondent nos.2,3 ...

CORAM : V.K. JADHAV, J Dated: July 18, 2017 ...

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     ORAL JUDGMENT : 

1. Being aggrieved by the judgment and award

passed by the learned Chairman of the Motor Accident

Claims Tribunal, Osmanabad dated 27th December,

2006 in MACP No.130 of 1996, original Respondent

No.1/owner of the tractor has preferred this appeal.

2. Brief facts giving rise to the first appeal are as

follows:

a) Respondent No.1/original Claimant claims to be

the owner of Taxi Car No.MH-25/9030. On 4 th June,

1995, he was driving the said car on Osmanabad to

Kallam road in slow speed from correct left side of the

road. At the relevant time, one tractor bearing

registration No.MHZ-8754 coming from the opposite

direction, gave dash to the said car. In consequence of

which, the occupants of the car as well as Respondent

No.1/Claimant sustained the injuries and also the said

car was totally damaged in the accident. The said car is

insured with the Oriental Insurance Co. Ltd.

Respondent/original Claimant has approached to the

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Tribunal by filing MACP No.130 of 1996 for grant of

compensation for the damage caused to the car. It has

been contended in the claim petition that Respondent/

original Claimant had purchased the said car in the year

1994 for Rs.3,00,000/- and it was comprehensively

insured with the present Appellant. Respondent No.1/

original Claimant has also sustained loss of earning

because of total damage to the car. The loss of income

is about Rs.1,00,000/-. Thus, Respondent/original

Claimant is entitled to the damage of Rs.4,00,000/-

including the price of the car. According to the

Respondent /original Claimant all the Respondents

including the present Appellant are liable to pay the

compensation jointly and severally.

b) Original Respondent No.1/owner of the tractor

failed to appear and contest the claim petition.

Respondent No.2/driver of the tractor also failed to

contest the claim petition.

c) Original Respondent No.3/Insurer of the tractor

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has strongly resisted the claim petition by filing written

statement. It has been contended that the driver of the

car is solely responsible for the accident and the driver

of the tractor is not responsible for the accident. It has

also been contended that the tractor attached to the

trolley was used for commercial purpose and as such,

there has been breach of the specified conditions of the

policy.

d) The Oriental Insurance Company Ltd has also

strongly resisted the claim petition by filing written

statement. It has been contented that the driver of the

car was not having valid and effective driving licence to

drive the car and as such, there has been breach of

policy conditions. It has been contended that the

accident occurred because of the fault of the car driver

and as such, the Claimant is not entitled to claim the

damages.

e) Original Claimant has adduced the evidence in

support of his contentions. The Respondents including

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the present Appellant have not adduced any evidence.

The learned Chairman of the Motor Accident Claims

Tribunal, Osmanabad vide its impugned judgment and

award dated 27th December, 2006 in MACP No.130 of

1996 partly allowed the claim petition and thereby

directed the original Respondent Nos.1 to 3 to pay half of

the amount of damages whereas the Oriental Insurance

Co Ltd., is directed to pay remaining half of the amount

of damages. Respondent No.3/Insurer of the tractor

further held to be entitled to recover from original

Respondent No.1 the amount required to be paid to the

Claimant/Petitioner. Hence, this appeal.

3. The learned counsel for the appellant submits

that, the Tribunal has erroneously recorded the finding

to issue no.2 and held that there is breach of the policy

conditions in respect of the tractor by its owner.

Learned counsel submits that, the respondent-insurer

has raised a specific plea that vehicle tractor involved in

the accident was being used for the commercial purpose

at the relevant time and as such, there has been breach

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of the specified conditions of the policy, however,

respondent National Insurance Company Ltd., has not

adduced any evidence to discharge the said burden.

4. This Court in FA No.476/2004 with FA 700/2004

arises out of one and the same accident, held that

respondent National Insurance Company-insurer has

failed to prove the said defence by adducing cogent and

sufficient evidence and accordingly saddled the liability

on the respondent-insurer alongwith the owner of the

tractor jointly and severally to pay compensation by

setting aside the order passed by the Tribunal to the

extent of directing the National Insurance Company

Ltd., to pay the compensation and recover the same

from the owner of the tractor.

5. Learned counsel for respondent-insurer submits

that the appellant-owner has specifically pleaded in his

written statement that on the date of accident, the

tractor was being used for the purpose of carrying out

material used for construction of bridge undertaken by

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     the  appellant-tractor owner.    Learned  counsel  submits 

that, the respondent-insurer can discharge the burden

of proving its defence either on the basis of evidence

adduced by the insurer or on the basis of the evidence

adduced by other parties.

In the instant case, the appellant-owner since

taken a specific plea in his written statement about the

commercial use of the vehicle tractor, the respondent-

insurer has sufficiently discharged its burden of proving

the defence. The learned Member of the Tribunal has

therefore, rightly directed the respondent-insurer to pay

the amount under award passed against the appellant-

owner and recover the same from him. There is no

substance in the appeal and the appeal is thus liable to

be dismissed.

6. I have also heard the learned counsel for

respondent no.4.

7. On perusal of the judgment and order passed in

FA No.476/2004 with FA 700/2004, I find that this

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Court has allowed the said appeal with the specific

observations that respondent National Insurance

Company has failed to substantiate its defence. This

Court has further held that respondent-National

Insurance Company has failed to discharge the burden

of proving its defence and as such, respondent-insurer

is liable to pay the compensation jointly and severally

alongwith owner of the tractor. Respondent-insurer has

not preferred any appeal against the judgment and

award passed by the tribunal. Though, the appellant-

owner has taken a plea in the written statement that the

tractor was being used for certain purpose on that day,

same is not sufficient for the respondent-insurer to

discharge the burden of proving its defence. This court

in the aforesaid group of appeals has recorded the

finding that the burden was on the insurance company

to prove the said defence by adducing cogent and

positive evidence therefor. In view of the same, the

impugned judgment and award passed by the tribunal

requires modification by setting aside the order directing

the respondent-National insurance company to pay the

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compensation and then recover from the appellant-

owner of the tractor. Consequently, finding recorded by

the tribunal to issue no.2 is also set aside to the extent

that the Tribunal held that there is breach of the policy

conditions in respect of the tractor involved in the

accident. In view of the evidence lead by the parties

before the Tribunal and in the light of the judgment

delivered in the aforesaid First Appeal by this Court, I

hold that the appellant/owner of the tractor and

respondent National Insurance Company are jointly and

severally liable to pay the compensation as determined

by the Tribunal. It further appears from the evidence

that it has only stated in the written statement that

tractor was proceeding towards the construction site

and it has not been specifically pleaded in the written

statement that said tractor involved in the accident was

being used for commercial purpose.

8. So far as quantum of the compensation is

concerned, learned counsel for the appellant-owner has

not made any submission in this regard. Hence,

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                                           10                FA 329.2007+CA.odt

     following order.

                                     O R D E R 

1. Appeal is hereby partly allowed. No costs.

2. The judgment and award passed by the Chairman, Motor Accident Claims Tribunal, Osmanabad dated 27.12.2006 in MACP No.130/1996 is hereby quashed and set aside to the extent that respondent no.3 insurer "shall be entitled to recover the compensation amount from respondent no.1-insured, the amount required to be paid by it to the claimant/petitioner."

3. Award be drawn up as per the above modifications.

4. If any amount is deposited by the appellant-owner of the Tractor before this Court, the same shall be refunded to the appellant-owner of the tractor.

5. Appeal is accordingly disposed of. Pending civil application, if any, also stand disposed of.

                                                 ( V.K. JADHAV, J. )

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