Bombay High Court
Yogesh Uttam Kalvane vs Raibhan Narayan Kokre And Ors on 25 July, 2017
Bench: P.R. Bora
1 FA NO. 2796 OF 2010
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 2796 OF 2010
Yogesh s/o. Uttam Kalvane,
Age: 25 years, Occu.: Driver,
R/o. Malivadgaon, Tq. Gangapur,
Dist. Aurangabad ...APPELLANT
(Orig. Claimant)
VERSUS
1. Raibhan S/o. Narayan Kokre,
Age: 32 years, Occu.: Driver,
R/o. Damori, Tq. Gangapur,
Dist. Aurangabad
Driver of Truck No. MH-20-AT-2402
2. Nanasaheb s/o. Baburao Jadhav
Age: Major, Occu.: Owner,
R/o. Malivadgaon, Tq. Gangapur,
Dist. Aurangabad
Owner of Truck No. MH-20-AT-2402
3. ICICI Lombard General Insurance Company Ltd.,
Through its Divisional Manager,
Division Officer near Baba Petrol Pump,
Opposite LIC Building, Adalat Road,
Aurangabad ...RESPONDENTS
...
Mr. Narayan A. Matkar, Advocate h/f. Mr. R.V. Gore,
Advocate for appellant.
Mr. Swapnil S. Patil, Adv. h/f. Mr. R.H. Dahat
Advocate for Respondent No.3
...
CORAM: P.R. BORA,J
DATE : 25/07/2017
2 FA NO. 2796 OF 2010
ORAL JUDGMENT :
1. Heard learned Counsel appearing for the
appellant and the learned Counsel appearing for
respondent.
2. Aggrieved by the judgment and order passed by
the Motor Accident Claims Tribunal, Aurangabad in
M.A.C.P. No.135/2008, decided on 25th of August, 2010,
the claimant therein has filed the present appeal. The
appellant is, hereinafter, referred to as 'the claimant'.
3. The claimant had filed the aforesaid petition
claiming compensation on account of injuries caused to
him in a vehicular accident happened on 19th of July,
2007, having involvement of a Mini Truck bearing
registration No. MH-20-AT-2402 owned by respondent
no.2 and insured with respondent no.3. As is revealing
from the averments in the claim petition, the claimant was
travelling by the said truck from Dhule to Sakri. The said
truck rammed into a tree and in the accident so happened,
the claimant received several injuries. It was the
contention of the claimant that the alleged accident
happened because of rash and negligent driving of the
driver of the said truck. It was the case of the claimant
before the Tribunal that he was the second driver in the
said truck and was thus entitled for receiving the
compensation from the owner and insurer of the said truck
for the alleged negligent acts of the driver of the said
3 FA NO. 2796 OF 2010
truck. The claimant had claimed compensation of
Rs.2,00,000/- ( Rs. two lakhs).
4. The claim petition was opposed by the owner as
well as the Insurance Company. The owner denied the
fact stated by the claimant that he was second driver on
his truck. The Insurance Company has raised defense of
breach of policy conditions by the owner of the vehicle by
carrying a fare paying passenger in a goods truck.
5. Learned Tribunal, after having assessed the oral
and documentary evidence brought on record before it,
held the claimant entitled for the total compensation of
Rs.72,420/-, inclusive of the No Fault Liability
compensation, however, the award was passed only
against the owner of the truck and the Insurance Company
was exonerated from its liability to pay the compensation.
Aggrieved thereby, the appellant has preferred the present
appeal.
6. Learned Counsel appearing for the appellant
submitted that the Tribunal has grossly erred in arriving at
the conclusion that the claimant did not prove that he was
a second driver on the truck which met with the accident.
Learned Counsel submitted that sufficient evidence was
adduced by the claimant evidencing that he was second
driver on the alleged truck and, as such, his risk was
covered by the policy of insurance. Learned Counsel
submitted that when a specific defense was raised by the
4 FA NO. 2796 OF 2010
Insurance Company as about the breach of policy
conditions, it was incumbent on the part of the Insurance
Company to prove the said fact by adducing positive
evidence in that regard. Learned Counsel submitted that,
admittedly, the Insurance Company did not adduce any
evidence. Learned Counsel further submitted that inspite
of any specific evidence on record, the Tribunal has
wrongly exonerated the Insurance Co. from its liability to
indemnify the insured. Learned Counsel, therefore,
prayed for setting aside the finding so recorded by the
Tribunal and further prayed for holding the Insurance
Company jointly and severally liable to pay the amount of
compensation and accordingly modify the award.
7. Shri Swapnil Patil, learned Counsel appearing
for the Insurance Company, supported the impugned
judgment and award. Learned Counsel submitted that
the claimant utterly failed in proving the plea raised by
him that he was second driver on the offending truck.
Learned Counsel submitted that the Tribunal in paragraph
nos. 9, 10 and 11 of the impugned judgment has
elaborately discussed the issue as regards to the liability of
the Insurance Company. Learned Counsel submitted that
the Tribunal has recorded an unambiguous finding that the
claimant did not prove that he was second driver on the
offending truck. Learned Counsel submitted that it was,
thus, evident that the claimant at the relevant time was
travelling as a fare paying passenger or gratuitous
passenger in a goods truck. Learned Counsel submitted
5 FA NO. 2796 OF 2010
that in such circumstances, no interference is warranted in
the impugned judgment and award.
8. I have carefully considered the submissions
made on behalf of the learned Counsel appearing for the
respective parties. I have perused the impugned
judgment, the evidence on record and the other material
available on record. The only question which falls for my
consideration in the present appeal is whether the finding
recorded by the tribunal that the claimant was a fair
paying passenger and has failed to prove that he was
second driver on the offending truck can be interfered
with. On perusal of the evidence on record and the
discussion made by the Tribunal while analyzing the said
evidence, it does not appear to me that any case is made
out by the appellant to cause any interference in the
impugned judgment and award. It is significant to note
that the owner of the offending truck in his written
statement has denied the fact stated by the claimant that
he was the second driver of the said truck. The owner was
the best person to depose or state before the Court
whether the claimant was a second driver on his truck or
not. In view of the fact that the owner himself has
denied that the claimant was second driver in his truck and
in absence of any other evidence brought on record so as
to reach to conclusion that the claimant was, in fact,
second driver on the said truck, no fault can be found in
the finding recorded by the Tribunal. Even in appeal
nothing is brought on record to suggest that the inference
6 FA NO. 2796 OF 2010
drawn by the Tribunal is wrong or palpably incorrect.
Since the claimant has failed in bringing on record any
evidence to support his plea that he was second driver on
the said truck, the only inference, which emerges is that
the claimant was a fare paying passenger travelling in the
goods truck. No risk of such passenger was covered by
the Insurance policy of the said truck. There appears no
error in the impugned judgment and award.
9. Though, it was sought to be canvassed by the
learned Counsel that at least an order be passed directing
the Insurance Company to first pay the amount and then
to recover it from the owner in view of the fact that the
claimant being fare paying passenger in goods truck, his
risk was not covered by the insurance policy, such order
also cannot be passed. I do not see any reason to
interfere with the impugned judgment and award. The
First Appeal, therefore, stands dismissed, however,
without any order as to the costs.
( P.R. BORA, J. )
...
AGP/
