The New India Assurance Co. Ltd. ... vs Smt. Shalu Ashok Vaidya & 3 Ors
2017 Latest Caselaw 3529 Bom

2206 FA  459/2008                             1                        Judgment


        IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                 NAGPUR BENCH AT NAGPUR.


                        FIRST APPEAL NO. 459/2008 


The New India Assurance Co. Limited,
through its office at ADCC Bank Building,
3rd Floor, Old Cotton Market, Tilak Road,
Akola, presently through its Chief
Regional Manager, Regional Office, 4th 
Floor, Dr. Ambedkar Bhawan, MECL Premises,
Seminary Hills, Nagpur - 440 006.                       APPELLANT

                                .....VERSUS.....

1]     Smt. Shalu wd/o Ashok Vaidya,
       Aged about 30 years, Occu: Household,

2]     Ku. Kirti d/o Ashok Vaidya,
       Aged 5 years,

3]     Ganesh s/o Ashok Vaidya,
       Aged 3 years,

4]     Balu s/o Ashok Vaidya,
       Aged 1 year,

       All R/o. Kalamba, Mahali,
       Tahsil and District - Washim.

       Respondent nos.2 to 4 being minors,
       through their natural guardian
       mother, respondent no.1.                          RESPONDE NTS
                                                                     


       Shri Gautam Chatterjee, counsel for appellant.
       Shri M.L. Vairagade, counsel for respondents.




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 2206 FA  459/2008                               2                          Judgment


                  CORAM  : DR. SMT. SHALINI PHANSALKAR-JOSHI, J.

                DATE     : JUNE 22, 2017.


ORAL JUDGMENT :  

This appeal takes an exception to the judgment and

order dated 15/01/2008 passed by Motor Accident Claims Tribunal,

Washim in M.A.C.P. No. 171/2006. By the impugned judgment and

order, the learned Tribunal has awarded the compensation of

Rs.1,00,000/- with interest at the rate of 6% per annum from the

date of petition till its realization to the respondents-claimants.

Being aggrieved thereby, appellant-insurance company has

preferred this appeal.

2] Brief facts of the appeal can be stated as follows :-

Ashok Vaidya, husband of respondent no.1 and father

of respondent nos.2 to 4, was owner of motorcycle bearing no. MH-

31-C-5548, which was insured with appellant for third party risk

and also covered personal accident insurance of Ashok for an

amount of Rs.1,00,000/- only. On 26/04/2006, while Ashok was

driving the said motorcycle, on account of his rash and negligent

act, the motorcycle slipped. As a result Ashok fell down and died on

2206 FA 459/2008 3 Judgment

the spot.

3] On account of untimely death of Ashok, his legal heirs -

respondent nos.1 to 4 herein, filed the petition before the Tribunal

seeking compensation of Rs.3,00,000/-. Petition was filed under

Section 163-A of the Motor Vehicles Act (hereinafter will be referred

to as "Act" for convenience).

4] This petition came to be resisted by appellant-insurance

company, contending inter alia that as deceased Ashok was not

having driving licence, there was a breach of insurance policy, and

hence, appellant is not liable to pay any amount of compensation,

especially because the accident, which resulted into his death, has

occurred on account of his own rash and negligent driving. It was

submitted that, though the insurance policy covered the third party

risk and also covered personal accident insurance of the deceased to

the extent of Rs.1,00,000/-, considering the breach of policy,

insurance company cannot be held liable.

5]              In   support   of   her   claim,   respondent   no.1,   claimant 





 2206 FA  459/2008                               4                          Judgment

examined herself. Whereas on behalf of appellant, evidence of two

witnesses was adduced. Out of them, first witness is Deepak

Bhutada, who was appointed to investigate as to whether the

deceased was having driving licence or not, and second witness was

Chandrashekhar Pande, Administrative Officer of appellant-

insurance company, who has deposed about the terms and

conditions of the insurance policy, which was issued in the name of

the deceased.

6] On appreciation of their evidence, the learned Tribunal

was pleased to hold that as the insurance policy covered the

personal accident insurance of the deceased to the extent of

Rs.1,00,000/-, appellant was liable to pay the said amount of

compensation to the respondents. Accordingly, Tribunal has allowed

the claim of respondents partly to the extent of Rs.1,00,000/- with

interest at the rate of 6% per annum thereon.

7] While challenging this judgment and order of the

Tribunal, the submission of learned counsel for appellant is that

appellant-insurance company would have been liable to pay this

2206 FA 459/2008 5 Judgment

amount of Rs.1,00,000/- to the respondents-claimants towards the

personal accident insurance of the deceased, provided there was no

breach of terms and conditions of the insurance policy. Here in this

case, according to him, as there is clear breach of terms and

conditions of the insurance policy, in view of the established fact

that deceased was not having driving licence, the Tribunal

committed an error in holding the appellant liable to pay

compensation of Rs.1,00,000/- to the respondents.

8] Per contra, learned counsel for respondents has

supported the impugned judgment and award of the Tribunal by

submitting that when there was personal accident insurance of the

deceased to the extent of Rs.1,00,000/-, appellant-insurance

company cannot be absolved from the liability to pay the said

amount to the legal heirs of the deceased.

9] In view of these rival submissions advanced before me

by learned counsel for appellant and respondents, the first and

foremost question necessarily arising for consideration in this

appeal is, whether the deceased was having driving licence or not?

2206 FA 459/2008 6 Judgment

If it is proved that he was not having such driving licence, then it

follow that there was a breach of terms and conditions of the

insurance policy. The insurance policy of the deceased is duly

proved on record through the evidence of witness no.2 of appellant,

namely, Chandrashekhar Pande and it is marked as Exh.26-A. The

initial burden of proving that deceased was having driving licence,

necessarily lies on the respondents-claimants. However, in this case,

respondent no.1, wife of deceased Ashok, has admitted in her cross-

examination that she cannot say whether her husband was having

driving licence of the motorcycle. She has also not produced the

driving licence of the deceased nor given the details of the driving

licence, if any, he was having. She has also not made any

application before the Tribunal to issue witness summons to R.T.O.

to produce on record the evidence to show that deceased Ashok was

having such driving licence. Therefore, from her side, respondent

no.1 has not produced any document to show that deceased was

having such driving licence. She has also not taken any steps in that

direction.

10]             As   against   it,   on   behalf   of   the   appellant,   as   stated 





 2206 FA  459/2008                                7                          Judgment

above, two witnesses were examined. Out of them, one witness by

name Deepak Bhutada was appointed by appellant-insurance

company to investigate as to whether the deceased was having

driving licence or not. He has filed on record his report (Exh.35),

according to which, it was revealed that deceased was not having

such driving licence. He has deposed that he has made inquiry even

with the mother of the deceased, Alokabai and she has stated that

deceased was not having driving licence. He has also issued notice

to R.T.Os. at Washim and Akola to produce the driving licence of the

deceased, if they were having or at least give some reply, but he has

not received any such reply.

11] Therefore, it necessarily follows that if deceased had

obtained the driving licence of the motorcycle, such driving licence

would have been produced on record by the respondents or at least

the details of such driving licence would have been produced by

R.T.O. at Washim or Akola or by the respondents themselves. The

affirmative burden was on the respondents to prove that deceased

was having driving licence, which respondents had failed to

discharge. Whatever the negative burden to prove that deceased

2206 FA 459/2008 8 Judgment

was not having driving licence, was lying on the appellant,

appellant has discharged the said burden. In view thereof, the

conclusion is inevitable that deceased was not having driving

licence of the motorcycle. Hence in view of the terms and conditions

of the insurance policy, it follows that deceased has committed the

breach of terms and conditions by driving the motorcycle without

having driving licence.

12] Now the next question arising for consideration is

whether in case of breach of terms and conditions of insurance

policy, the legal heirs of the deceased can be entitled to get any

amount of compensation from the appellant-insurance company?

Learned counsel for respondents had, in this respect, placed reliance

on the decision of the court in the case of The United India

Insurance Co. Ltd. -Vs- Smt. Sunanda Ramesh Dhumone and

others, in First Appeal No. 138/2006 dated 06/12/2006 by

submitting that even if the accident has occurred due to rash and

negligent driving of the deceased himself, as his personal accident

insurance was covered by the insurance policy, the insurance

company cannot get absolved from the liability to the extent of

2206 FA 459/2008 9 Judgment

Rs.1,00,000/- towards the owner and driver.

13] There can not be any two opinions about the legal

proposition that if personal insurance policy is taken by decesed by

paying extra premium, then under Section 163-A of the Act, it was

liability of the insurance company to pay such amount of

compensation of Rs.1,00,000/- to the legal heirs of the deceased.

However, in the facts of the judgment on which reliance is placed,

there was no such plea raised by the appellant-insurance company

that deceased was not having the driving licence of motorcycle at

the time of accident. Therefore, there was no such case made out

also that there was breach of terms and conditions of the insurance

policy. In view thereof, the liability was fastened on insurance

company to pay the amount of compensation of Rs.1,00,000/-

towards his personal accident insurance.

14] As against it, in the present case, appellant is not

denying its liability of Rs.1,00,000/-, but for the fact that there was

breach of terms and conditions of insurance policy, as deceased was

not having driving licence. Once it is held that respondents had

2206 FA 459/2008 10 Judgment

failed to prove that deceased was having driving licence, then it

follows that there was breach of terms and conditions of insurance

policy, and in such eventuality, needless to state that insurance

company cannot be held liable for the loss caused on account of

death of deceased in the said accident. Even if it is accepted that

there was personal accident insurance of the deceased, the breach

of terms and conditions of insurance policy has necessarily resulted

into absolving the appellant from all its liability of payment of

compensation, whether it was under Section 163-A of the Act or

even to the extent of personal accident insurance of the deceased.

15] The impugned judgment and order of the Tribunal,

therefore, holding the appellant-insurance company liable to pay

the compensation of Rs.1,00,000/- to respondents with future

interest thereon, is hence, liable to be quashed and set aside, as it

cannot be sustained in law. The observation made by the Tribunal in

para no.11 that "In a claim petition under Section 163-A of the Act,

the point that deceased was negligent in driving the motorcycle

without a valid driving licence need not be discussed at all." is

perverse in the sense that it is against the legal position. It need not

2206 FA 459/2008 11 Judgment

be stated that not having a valid driving licence is against the terms

and conditions of insurance policy, and therefore, on that very

count, the insurance company becomes absolved from liability.

Moreover, the claim under Section 163-A of the Act is towards fault

liability and not under no fault liability. Therefore, on this count

also, the impugned judgment and order of the Tribunal needs to be

quashed and set aside. Accordingly, appeal is allowed.

16] The impugned judgment and order of the Tribunal is

quashed and set aside and appellant is absolved from the liability

imposed by the Tribunal.

17] At this stage, it is submitted by learned counsel for

appellant that the entire amount of compensation is already

deposited in this court along with interest accrued thereon and

respondents were not permitted to withdraw the same. In view

thereof, appellant is permitted to withdraw the said amount, if it is

already not paid to respondents. Appellant is also permitted to

withdraw the statutory amount of Rs.25,000/- deposited in this

court.

 2206 FA  459/2008                         12                        Judgment




18]             Appeal is disposed of in above terms, with no order as 

to costs.



                                               JUDGE

Yenurkar