Bombay High Court
The New India Assurance Co. Ltd vs Subhash Eknath Koli And Ors on 19 July, 2017
Bench: V.K. Jadhav
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THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD.
FIRST APPEAL NO. 2687 OF 2011
The New India Assurance Company Ltd.,
a Subsidiary of the General Insurance
Corporation of India and a company
Incorporated under the Companies Act
having one of its Divisional office at
Adalat Road, Aurangabad
Through its Manager (Legal Hub) &
Authorized signatory
Shri Sanjeev S/o Ramrao Gaisamudre
Age 52 yrs., occu. Service at
The New India Assurance Co.,
D.O. No.1 Adalat Road, Aurangabad. ... APPELLANT
[Ori. Resp. No.2]
V E R S U S
1. Subhash Eknath Koli,
Age minor, Occ. Education.
2. Manoj Eknath Koli,
Age minor, Occ. Education
Through their natural guardian uncle
Sukla Mansaram Koli
Age 35 yrs., Occ. Agriculture,
r/o A.P. Arni, Tk. & District Dhule,
3. Bhatu Dharma Patil,
Age major, Occ. Tractor owner & driver
r/o Varkhede,
Tk. & District Dhule. ... RESPONDENTS
[R.No.1 & 2 : Org. Clmts.
R.No.3 : Org. R.No.1]
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...
Mr. Ajit B. Kadethankar, Advocate for the Appellant.
Mr. Mahesh H. Patil, Advocate for Respondent No.3.
...
CORAM : V. K. JADHAV, J.
DATE : 19th July, 2017.
ORAL JUDGMENT:
. Being aggrieved by the judgment and award passed by
the Chairman of the Motor Accident Claims Tribunal, Dhule dated 28th
February, 2011 in MACP No.1328 of 2005, Respondent No.2 / Insurer
has preferred this appeal.
2 Brief facts giving rise to the present appeal are as follows:
a) On 4th May, 2005 at about 06:15 pm, deceased
Shobhabai was proceeding in a trolley attached to
the tractor. She was returning to her house after
doing the labour work. On way, because of the rash
and negligent driving on the part of the driver of the
said tractor, the tractor turned turtled. In
consequence of which, deceased Shobhabai
sustained grievous injuries. She was immediately
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shifted to Civil Hospital, Dhule where she
succumbed to injuries while under treatment. The
Claimants / legal heirs of deceased Shobhabai
approached the Tribunal by filing MACP No.1328 of
2005 for grant of compensation under the various
heads.
b) Respondent No.1 / owner resisted the claim
application by filing the written statement. It has
been contended that there was no negligence on the
part of the driver of the tractor. It has also been
contended that deceased Shobhabai was engaged
on labour work by one contractor Jijabrao Hariman
Patil through Panchayat Samiti Dhule. The said
contractor had taken the offending tractor on rent
and as such, the contractor and Panchayat Samiti
are the necessary parties to the petition.
c) The Appellant / Insurer has also strongly resisted the
claim application by filing the written statement. It
has been contended that there were 20 passengers
948 First Appeal 2687 of 2011.odt
travelling in the tractor trolley alongwith deceased
Shobhabai and as such, there has been a breach of
the specified conditions of the policy.
d) The Respondents / Claimants have adduced oral
and documentary evidence and the Respondent /
owner has also adduced oral evidence before the
Tribunal. The Appellant / Insurer has not adduced
any evidence. The learned Chairman of the Tribunal
vide judgment and award allowed the claim petition
and thereby directed Respondent No.1 / owner
alongwith Appellant / Insurer to pay jointly and
severally the compensation of Rs.3,70,000/- with
interest at the rate of 9% per annum. Hence, this
appeal.
3 The learned counsel for Appellant / Insurer submits that
there is a clear cut evidence of breach of the conditions of the policy.
As per the contents of FIR and even as admitted by Respondent No.1
/ owner, near about 20 persons were travelling in the trolley as
passengers. Admittedly, those persons were not the labours
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employed by Respondent No.1 / owner. It is the contention of
Respondent No.1 / owner that the said tractor and trolley was given
on rent to one contractor, who has undertaken the work of
construction of percolation tank through the Panchayat Samiti. The
learned counsel submits that the said tractor was used for commercial
purpose. The Appellant / Insurer as such, is not liable to pay the
compensation jointly and severally. However, the Tribunal has
erroneously fastened the liability on the Appellant / Insurer jointly and
severally with Respondent No.1 / owner to pay the compensation.
4 The learned counsel for Respondent / owner submits that
from the policy placed before the Tribunal, it appears that the page of
the policy as to the limitation to use, is missing and the same is now
placed before this Court alongwith compilation of appeal memo.
Thus, the Appellant / Insurer has failed to substantiate its contention
before the Tribunal that the said tractor and trolley can be used only
for agricultural purpose and the policy does not cover the use of the
said vehicle for hire or reward. The learned counsel submits that the
Appellant / Insurer has not adduced any evidence to substantiate its
contention and as such, failed to discharge the burden. Thus, the
Tribunal has rightly fastened the liability on the Appellant / Insurer
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jointly and severally alongwith Respondent / owner to pay the
compensation to the Claimants. There is no substance in the appeal
and the appeal is thus, liable to be dismissed.
5 It appears from the pleadings, evidence and judgment and
award passed by the Tribunal that the Tribunal has not given thought
to the defence raised by the Appellant / Insurer. Respondent No.1 /
owner has filed his affidavit of evidence Exhibit 42 and admitted in his
cross-examination that though he had purchased the said tractor for
agricultural work, on the relevant date, he had given the said tractor
with trolley to one Jijabrao Patil on hire. He has further admitted in
the cross-examination, that if the said tractor was being used for
agriculture purpose, there was no reason for the 18 labours to travel
in the trolley attached to the tractor at the time of accident. He has
further admitted that it has specifically mentioned in the contents of
the complaint that the said tractor was given to Jijabrao Patil on hire
for the purpose of transporting the construction material. It is true that
burden is on the Appellant / Insurer to prove its defence, however, the
said burden can be discharged by adducing the oral or documentary
evidence or even by relying on the evidence of the other side. Thus,
the oral and documentary evidence on record sufficiently indicate that
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there has been a breach of the specified conditions of the policy. I do
not find any substance in the submissions made on behalf of the
Respondent / owner that particular page of that policy is missing. In
fact, the original policy is in the custody of the Respondent / owner
and he could have produced it before the Tribunal to substantiate his
contention. It thus, appear that the Tribunal has erroneously fastened
the liability on the Appellant / Insurer to pay the compensation.
Hence, the following order:
O R D E R
I. The appeal is hereby partly allowed with costs.
II. The judgment and award passed by the
Chairman of the Motor Accident Claims Tribunal,
Dhule dated 28th February, 2011 in MACP
No.1328 of 2005, is hereby quashed and set
aside to the extent directing the Appellant /
original Respondent No.2 (Insurer) to pay jointly
and severally an amount of Rs.3,70,000/-
(Rupees Three Lacs and Seventy Thousand
Only) towards compensation to the petitioners
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with interest at the rate of 9% per annum from
the date of petition till realization of the amount.
III. Rest of the judgment and award directing
Respondent No.1 / owner to pay the
compensation and the quantum of the
compensation as awarded by the Tribunal
stands confirmed.
IV. Award be drawn up accordingly.
V. If any amount is deposited by the Appellant /
Insurer before this Court, the same shall be
refunded to the Appellant / Insurer.
VI. Appeal is accordingly disposed of.
[ V. K. JADHAV, J. ]
ndm
