United India Insurance Co. Dhulia vs Tina Parashram Valvi & Ors
2017 Latest Caselaw 3161 Bom

                                     1                    FA NO.129/2002

        IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                   BENCH AT AURANGABAD

                        FIRST APPEAL NO.129 OF 2002

  United India Insurance Co. Dhulia
  (Dhule Branch Office at Dhule
  through it's Divisional Manager
  & authorised representative and 
  signatory Aurangabad Division,
  Aurangabad for Branch Manager,
  Branch Office, Dhule
                                       .. APPELLANT
                                   (Orig. Opp. No.3) 
           VERSUS

  1.       Tina D/o. Parashram Valvi
           Age:19 years, Occ: Labourer,
           C/o. Parashram Kalu Valvi
           R/o. Deulpada, Post-Bortha,
           Tq. Nizar, Dist. Surat (Gujarath)

  2.       Vasant Tumdya Valvi
           Age:27 years, Occ: Driver 
           of Matador
           R/o. Dhanore, Tq. Nandurbar,
           Dist. Nandurbar,

  3.       Sanju Pandit Koli,
           Age:55 years, Occ:Business,
           R/o. Dhanora, Tq. & Dist.
           Nandurbar.
                                         ..RESPONDENTS
                                      (No.1 Orig.App.Res. 
                                       No.2 & 3 Ori. Opp. 
                                     No.1&2 respectively)

                                    ***
           Shri A.B. Gatne, Advocate for appellant;
           Shri S.S. Patil, Advocate for Respondent No.1
                                    ***     




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                                          2                      FA NO.129/2002

                               CORAM :  P.R.BORA, J.

DATE :

14 th

June,2017.

ORAL JUDGMENT:

1) Heard. The present appeal is filed by

the insurance company taking exception to the

Judgment and Award passed by the Motor Accident

Claims Tribunal, at Dhule (for short, the

Tribunal) in MACP No.667/1998.

2) Respondent No.1 in the present appeal

(hereinafter referred to as 'claimant') had filed

the aforesaid claim petition, claiming

compensation on account of injuries sustained by

her in a vehicular accident happened on 18 th

December, 1996, having involvement of a truck

bearing registration No. MH-18-B-7652, owned by

Respondent No.2 and insured with the appellant -

insurance company. It was the contention of the

original claimant that, at the relevant time, she

was employed by owner of the truck as a coolie on

the said truck, which was involved in carrying

sand. The said truck on 18th December, 1996 met

3 FA NO.129/2002

with an accident and the claimant received the

injuries in the said accident, which resulted in

incurring 35% permanent disability by her. The

claimant had, therefore, claimed compensation

amounting to Rs.2,00,000/-. The claim petition so

filed by the claimant, was resisted by the

insurance company on various grounds. It was the

contention of the insurance company that, at the

relevant time, the passengers were being carried

in goods truck and the breach of policy condition

was writ-large. It was the further contention of

the insurance company that the claimant had not

suffered any such injury in the alleged accident

which would have resulted in incurring 35%

permanent disablement to the claimant. The

insurance company has, therefore, prayed for

dismissal of the claim petition.

3) The learned Tribunal, after having

assessed the evidence brought before it, allowed

the claim petition in part and granted the

compensation of Rs.1,50,000/- to Respondent No.1,

4 FA NO.129/2002

payable jointly and severally by the owner and

insurer of the truck. Aggrieved by, the

insurance company has filed the present appeal.

4) Shri Gatne, learned Counsel appearing

for the appellant - insurance company, has

assailed the impugned judgment on various

grounds. The learned Counsel mainly objected the

conclusion recorded by the Tribunal that the

insured, since had paid an extra premium of

Rs.75/-, unlimited risk was covered by the said

insurance policy. The learned Counsel, taking me

through the terms and conditions of the insurance

policy, submitted that the Tribunal has

misconstrued the fact of extra premium paid of

Rs.75/- by the owner. The learned Counsel

explained that the term "TPPD", means Third Party

Property Damage. The learned Counsel submitted

that the extra premium of Rs.75/- was thus paid

by the owner of the insured truck to cover the

unlimited risk towards the damages to the

property of the third party and it does not cover

5 FA NO.129/2002

the risk of the passengers unauthorizedly carried

in the goods truck.

5. The learned Counsel thereafter invited

my attention to First Information Report (FIR)

and spot panchanama, which were relied upon by

the claimant in order to prove her claim. The

learned Counsel submitted that the FIR in many

words indicates that, at the relevant time, more

than 20 persons were being carried in the said

truck and all of them were passengers being

carried in the said truck. The learned Counsel

further submitted that though it was the case of

the claimant that sand was being carried and she

was being employed in the said truck for loading

and unloading the sand, the spot panchanama does

not reveal that the sand was being carried in the

said truck. The learned Counsel submitted that

from the evidence on record, it is, therefore,

evident that a total false claim was made by the

claimant and it therefor could not have been

allowed by the Tribunal.

6 FA NO.129/2002

6. The learned Counsel further submitted

that the original claimant had also failed in

bringing on record any cogent and sufficient

medical evidence so as to reach to the conclusion

that she has incurred 35% permanent disability.

The learned Counsel submitted that the claimant,

admittedly, did not examine the doctor, who has

issued the medical certificate and even then

relying on the said certificate the Tribunal has

held that the claimant has incurred the permanent

disability, as shown in the Disability

certificate. The learned counsel therefore

submitted for setting aside the award.

7. The learned counsel further submitted

that a mere statement of the claimant that she

was employed with Respondent No.2, i.e. owner of

the truck, was not enough and the said fact must

have been proved by her by leading necessary

evidence in that regard. The learned Counsel

submitted that the claimant must have examined

Respondent No.2 to prove the said fact as well as

7 FA NO.129/2002

to prove her income and mere filing of the income

certificate issued by Respondent No.2 was not

enough. The learned Counsel submitted that thus

there was absolutely no evidence to saddle the

liability on the insurance company. The learned

Counsel, therefore, prayed for setting aside the

impugned award and exonerating the insurance

company from its liability to pay the amount of

compensation to the claimant in the claim

petition.

8) Shri Patil, learned Counsel appearing

for Respondent No.1, i.e. original claimant,

opposed the submissions made on behalf of the

appellant - insurance company. The learned

Counsel submitted that since beginning, it was a

specific case of Respondent No.1 that she was

employed by respondent No.2, as coolie and at the

relevant time, she was travelling through the

offending truck as coolie employed by Respondent

No.2. The learned counsel further submitted that

since the facts stated by respondent No.1 in her

8 FA NO.129/2002

petition that she was employed by respondent No.2

as coolie and the salary certificate in her name

was issued by Respondent No.2 were not disputed

or denied by said Respondent No.2, it was not

necessary on her part to examine the said

respondent to prove the admitted facts.

9. The learned Counsel further submitted

that in the FIR, nowhere her name has been

reflected as passenger travelling through the

said offending truck. The learned Counsel

further submitted that the claimant was honest

enough in admitting that some passengers were

being carried at the relevant time, through the

said offending truck. The learned Counsel

further submitted that she has produced all the

necessary documents to prove that she had

suffered the injuries and as a result of the said

injury, had incurred the permanent disability to

the extent of 35%. The learned Counsel submitted

that the disability certificate produced on

record by respondent No.1 was not seriously

9 FA NO.129/2002

disputed and in her cross-examination, except a

bare a suggestion that it was a false

certificate, no other suggestion was given to the

claimant so as to disprove her contention.

10. The learned Counsel further submitted

that the petitioner has proved all the relevant

facts, i.e. occurrence of the accident; ownership

of the offending truck that the truck was insured

with the appellant - insurance company; the

claimant suffered the injuries in the said

accident and that she incurred permanent

disability in the said accident etc. In such

circumstances, according to the learned Counsel,

the Tribunal has rightly awarded the compensation

of Rs.1,50,000/- and has rightly held the

insurance company liable for payment of

compensation.

11. The learned Counsel inviting my

attention to the terms of policy submitted that

the policy was very well covering the risk of six

10 FA NO.129/2002

coolies, who may be carried in the said truck and

due premium towards that was paid by owner of the

truck while purchasing the said policy. The

learned Counsel further submitted that the

aforesaid facts have not been disputed or denied

by the insurance company. The learned Counsel

submitted that in view of the fact that the risk

of the coolies was covered by the insurance

policy, the Tribunal has rightly held the

insurance company jointly and severally liable

for payment of the compensation to the claimant.

12. In so far as argument advanced by

learned Counsel appearing for the insurance

company in respect of TPPD claim, learned Counsel

submitted that some mistake seems to have

occurred by the Tribunal in interpreting the said

term. The learned counsel was fair enough in

submitting that the discussion made and the

conclusion recorded in that regard by the

Tribunal, on the face of it, cannot be supported.

The learned Counsel further submitted that

11 FA NO.129/2002

however having regard to the fact that the

insurance policy was covering the risk of the

coolies, ultimately the judgment cannot be

faulted with. The learned Counsel, therefore,

prayed for passing the appropriate orders.

13) I have carefully considered the

submissions advanced by learned Counsel appearing

for the parties. I would first deal with the

objection raised by the insurance company as

about the premium of Rs.75/- paid by owner of the

truck, which, as has been observed by the

Tribunal, covers unlimited risk. After having

gone through the terms of the policy and after

having known as for what reason the amount of

Rs.75/- was paid by the owner, the conclusion so

recorded by the Tribunal cannot be supported.

Apparently, the Tribunal has misconstrued that

the aforesaid amount was paid for covering

unlimited risk.

14. It is quite clear from the terms that

12 FA NO.129/2002

the amount of Rs.75/- was paid by the owner of

the truck by way of extra premium to cover

unlimited risk for the damages, which may be

caused to the property of the third party and it

was not covering the risk of the passengers being

unauthorisedly carried in goods truck.

15. In so far as the contention raised by

the insurance company, that since the evidence on

record clearly suggest that the passengers were

being carried in goods truck, the owner shall be

held guilty for violation of policy condition

and, therefore, the insurance company needs to be

exonerated, cannot be accepted. Though, it

cannot be denied from the evidence on record that

the passengers were being carried through the

offending truck, the question is whether the

claimant, who had filed the claim petition, was

travelling in the said truck as passenger at the

relevant time or as coolie, as has been claimed

by her? From the evidence on record, I have no

hesitation in recording a finding that the

13 FA NO.129/2002

claimant has sufficiently proved that, at the

relevant time, she was travelling through the

said offending truck as coolie employed by the

owner of the said truck, i.e. Respondent No.2.

Further, the risk of the claimant was duly

covered by the terms of the insurance policy

since the owner has paid premium to cover the

risk of six coolies travelling through the said

truck. As such, I do not see that the Insurance

company could have been exonerated from its

liability to pay the amount of compensation.

16) The other objection raised by the

insurance company that it was incumbent on the

part of the claimant to prove her income from

salary, as has been stated by her and mere filing

of the income certificate was not enough, also

cannot be sustained since the contentions raised

by the claimant in her claim petition in this

regard were not denied or disputed by Respondent

No.2 in his written statement.

  .                The   objection   in   regard   to   the   medical 





                                    14                   FA NO.129/2002

evidence also does not carry any much substance.

The disability certificate is existing on record

which has been issued by the Civil Surgeon and

the same was not seriously disputed. In absence

of any contrary evidence the Tribunal has relied

upon the said certificate. It does not appear to

me that the tribunal has committed any error in

doing so.

17) After having considered the entire

material on record it does not appear to me that

any interference is warranted in the ultimate

conclusion recorded by the Tribunal holding the

insurance company jointly and severally liable to

pay the amount of compensation to the claimant.

In so far as the finding which was objected to by

the insurance company, as about the

interpretation made by the tribunal of the term

'T.P.P.D.', I have already recorded a finding

that the same is incorrect and cannot be

sustained. However, as has been elaborately

discussed by me herein before it may not have any

15 FA NO.129/2002

impact on the liability of the insurance company

to pay the compensation to the original claimant.

. In the result the following order.

ORDER

i) Appeal is dismissed without any order as

to the costs.

ii) Pending Civil Application, if any,

stands disposed of.

(P.R.BORA) JUDGE

bdv/ ..