Shaikh Umar Shaikhkl Mohinuddin vs Ansar Mohd Gafar Deceased Th Legal ...
2017 Latest Caselaw 3735 Bom

                                  1                       FA NO.1642/2010


       IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                  BENCH AT AURANGABAD

                   FIRST APPEAL NO.1642 OF 2010


           Shaikh Umar s/o Shaikh Mohinuddin,
           Age 42 years, Occ. Business,
           r/o Jikthan,
           Tal.Gangapur, Dist. Aurangabad.

                                        ...APPELLANT
                                        (Orig.Resp.No.2)
                   VERSUS

  1.       Ansar s/o Mohd.Gafar
           (since deceased through legal heirs)

  1.1      Gafar s/o Babanji Bagwan,
           Age 47 years, Occ. Labour,
           R/o. Partur,
           Dist. Jalna.

  1.2      Julekhabi w/o Gafar Bagwan,
           Age 46 years, Occ. Household,
           R/o. Partur,
           Dist. Jalna.

  2.       New India Insurance Company,
           Through its Branch Manager,
           Jalna.

  3.       Somnath s/o Apa Karde,
           Age 27 years, Occ. Driver,
           R/o. Gurudhanora,
           Tal.Gangapur,
           Dist. Aurangabad.
                                        ...RESPONDENTS
                                        (No.1 Orig.Claimants,
                                        Nos. 2 & 3 Orig.Resp.
                                             Nos. 1 & 3)




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                                           2                         FA NO.1642/2010

  Mr. D.P.Palodkar, Advocate for appellant.
  Ms.Geetanjali Deshpande, Adv.,for respondent nos. 1/1
  and 1/2.
  Shri V.N.Upadhye, Adv., for respondent no.2.
                            ...

                               CORAM: P.R.BORA, J.

                               DATE : June 29th, 2017

                                        ***
  Date of reserving the Judgment:                               06/06/2017
  Date of pronouncing the Judgment:                             29/06/2017
                          ***

  JUDGMENT:

1. The appellant has filed the present appeal

against the judgment and award dated 6th of May, 2010,

passed by the Motor Accident Claims Tribunal, Jalna, in

M.A.C.P. No.184/2008.

2. The aforesaid claim petition was filed by one

Ansar s/o Mohammad Gafar Bagwan, claiming

compensation for injuries caused to him in a vehicular

accident happened on 20th of June, 2008, having

involvement of a Tata Truck bearing registration No.MH-

20-AT-2726 owned by present appellant and insured with

respondent no.2. During pendency of the claim petition,

3 FA NO.1642/2010

original claimant Ansar died on 2nd of May, 2009, and his

legal heirs i.e. his parents prosecuted the claim thereafter

and claimed compensation alleging that deceased Ansar

died because of the injuries caused to him in the said

accident happened on 20th of June, 2008. Appellants,

hereinafter, are referred to as Claimants.

3. It was the case of the claimants that deceased

Ansar had hired insured truck for bringing mangoes from

Dharampur in Gujrat and at the relevant time deceased

and his friend were travelling by the said truck towards

Dharampur from Aurangabad. The accident happened

near Niphad in district Nashik.

4. The claim petition was resisted by the Insurance

company on various grounds. The main defense raised by

the Insurance Company was that deceased Ansar was

travelling in the insured truck as a passenger and, as such,

his risk was not liable to be covered by the Insurance

policy. The another defense was that the Driver of the

offending truck was not holding valid driving license on the

date of accident.

                                              4                     FA NO.1642/2010

  5.                 The       claimants    adduced      oral      as      well      as

documentary evidence before the Tribunal to substantiate

their claim. Neither the owner of the vehicle nor the

insurer of the vehicle adduced any oral evidence.

Learned Tribunal, after having assessed the oral as well as

documentary evidence brought before it, allowed the claim

petition partly holding the claimants entitled for the total

compensation of Rs.4,42,000/- and directed the owner and

driver of the offending vehicle to pay the said amount of

compensation to the claimants with interest at the rate of

8 per cent per annum from the date of institution of the

claim till realization. The Insurance company was

exonerated from the liability to indemnify the insured.

Aggrieved thereby, the owner of the insured vehicle has

filed the present appeal.

6. Shri D.P.Palodkar, learned counsel appearing for

the appellant, assailed the impugned judgment and award

on various grounds. The main thrust of his argument

was that when a plea was raised by the Insurance

Company, denying its liability, it was necessary for the

Insurance Company to have proved the terms of policy.

5 FA NO.1642/2010

Learned Counsel submitted that the Insurance Company

admittedly did not adduce any oral evidence to

substantiate the defense raised by it nor has placed on

record the document of policy containing the terms and

conditions of the said policy and, as such, the Tribunal was

in error in exonerating the Insurance Company from its

liability to indemnify the insured.

7. Shri Palodkar, learned Counsel, further

submitted that the Tribunal has erred in recording a

conclusion that claimant Ansar s/o Mohd. Gafar suffered

death because of the injuries caused to him in the road

accident happened on 20th of June, 2008, without any

cogent and sufficient evidence therefor. The learned

Counsel, invited my attention to the admissions given by

PW No.1 Gafar Bagwan, father of deceased Ansar, in his

cross examination, whereby he has candidly admitted that

his son did not follow the instructions given to him by the

Doctor after he was discharged from the hospital and had

he followed the said instructions, he would not have

suffered the death. Learned counsel submitted that from

the evidence of PW No.1, it is quite clear that deceased

6 FA NO.1642/2010

Ansar died because of his own negligence and not as a

result of the injuries caused to him in the alleged accident.

Learned Counsel submitted that deceased Ansar died after

about 11 months of the alleged accident and there is no

such evidence on record so as to arrive at the conclusion

establishing any nexus between the death of deceased

Ansar and the injuries caused to him in the alleged

accident. Learned Counsel submitted that in the above

circumstances, in fact no compensation was liable to be

awarded and the Tribunal has grossly erred in awarding

the compensation, ignoring the evidence on record.

8. Shri Palodkar further submitted that the

conclusion recoded by the Tribunal that the deceased

Ansar was travelling in the insured vehicle at the relevant

time as a passenger and not as the owner of the goods is

also unsustainable in premise of the evidence on record.

Learned Counsel submitted that since beginning it was the

contention of the claimants that deceased Ansar along with

his friends had hired the insured truck for bringing

mangoes from Dharampur in Gujrat and when the accident

happened deceased Ansar and his friends were proceeding

7 FA NO.1642/2010

by the said truck towards Dharampur, Gujrat. Learned

Counsel submitted that deceased Ansar was thus travelling

in the insured truck at the relevant time as the owner of

the goods and his risk was fully covered by the Insurance

policy. Learned Counsel submitted that the Tribunal has

failed in appreciating the aforesaid evidence and has

erroneously exonerated the Insurance Company from its

liability to indemnify the insured. The learned Counsel,

therefore, prayed for setting aside the impugned award

and, consequently, to allow the claim petition.

9. Shri V.N.Upadhye, learned Counsel appearing

for the Insurance Company, resisted the submissions

made on behalf of the appellant. Learned Counsel

submitted that the certificate of insurance was filed on

record by the claimants themselves and is very well

existing on record at Exh.39 as well as at Exh.55.

Learned Counsel further submitted that though it was the

contention of the claimants that deceased Ansar at the

relevant time was travelling by the insured truck as the

owner of the goods, the evidence on record shows that the

truck was empty when the accident happened. Learned

8 FA NO.1642/2010

Counsel further submitted that it has also come on record

through the evidence of the claimants themselves that

when the accident happened, in addition to deceased,

Ansar, his friend, and seven other passengers were

travelling in the said truck and they all had boarded the

truck at different places as the passengers in the said

truck. Learned Counsel submitted that the Tribunal has

not committed any error in holding that deceased Ansar

was travelling by the insured truck as a passenger.

Learned Counsel further submitted that the evidence on

record was sufficient for arriving at the conclusion that the

owner and the driver of the truck have committed breach

of the policy conditions by carrying the passengers in the

goods truck. Learned Counsel submitted that the Tribunal

has not committed any error in exonerating the Insurance

Company from its liability to indemnify the insured.

Learned Counsel, therefore, prayed for dismissal of the

appeal.

10. Learned Counsel appearing for the original

claimants prayed for passing appropriate orders.

9 FA NO.1642/2010

11. I have carefully considered the submissions

advanced by the learned Counsel appearing for the

respective parties. I have also perused the impugned

judgment and the evidence on record. I would like to first

deal with the issue whether from the evidence on record it

can be held that deceased Ansar was travelling in the

insured truck at the relevant time as the owner of the

goods and not as a passenger. It is true that since

beginning it was the contention of the claimants that

deceased Ansar along with his friend Anwar, PW 2, had

hired the insured truck for bringing mangoes from

Dharampur, Gujrat. Evidence of PW 1 Gafar Khan may

not be of much help on this issue since he was not having

any personal knowledge of facts involved in the matter.

The evidence of PW 2 Anwar, however, may be relevant

since he was stated to have hired the insured truck along

with deceased Ansar. No doubt in his examination in

chief, he has stated that insured truck was hired by him

and deceased Ansar for bringing mangoes from Dharampur

in Gujrat and freight was fixed at Rs.10,000/- out of which

Rs.5,000/- were paid to the owner of the insured truck in

advance. However, in light of the fact so stated by PW 2

10 FA NO.1642/2010

when I read the written statement filed by original

respondent nos. 2 and 3 i.e. the driver and owner of the

insured truck, it is revealed that except the fact that

deceased was travelling in the insured truck in the

capacity as owner of the goods, other facts are denied by

them for want of knowledge. Moreover, the aforesaid

fact stated by PW 2 Anwar has not been corroborated by

any other evidence. On the contrary, in the cross

examination of PW 2, it has come on record that five more

persons were travelling by the said truck. PW 2 Anwar in

his cross examination has stated that he was unable to

answer whether the other persons who were travelling by

the said truck had already boarded the said truck or

otherwise. Further, as has been rightly observed by the

Tribunal, no evidence has been brought on record to

substantiate the contention that the amount of Rs.5,000/-

was already paid to the owner of the truck by way of

advance. The owner of the truck i.e. present appellant

could have been the best person to depose in this regard,

however, he had kept silence on the issue. The fact so

stated by deceased Ansar and supported by PW 2 Anwar

could have been corroborated by the owner of the truck

11 FA NO.1642/2010

who was party to the claim petition, however, on this

aspect, the owner of the truck has not taken any stand.

On the contrary, in the written statement except admitting

that deceased was travelling in the insured truck as an

owner of the goods nothing further has been accepted by

the owner of the truck. Had the fact as aforesaid would

have been accepted and corroborated by the owner of the

truck, and had he deposed before the Court or would have

admitted in his written statement that his truck was hired

for the purpose of bringing mangoes by deceased Ansar

for freight of Rs.10,000/- and as stated in the petition

Rs.5,000/- was received to him by way of advance, there

was no reason to discard or disbelieve the fact so stated in

the petition. However, as discussed by me hereinabove,

there is absolutely no evidence in this regard. As such, it

does not appear to me that the Tribunal has committed

any error in recording a finding that the claimants have

failed in proving that deceased Ansar was travelling as

owner of the goods in the insured truck when the alleged

accident happened.

12. Another objection raised by the appellant that

12 FA NO.1642/2010

the claimants have failed in proving that deceased Ansar

died as a result of injuries caused to him in the alleged

accident, is also unsustainable. I need not to elaborately

discuss the evidence on record; suffice it to say that from

the medical evidence which has come on record it can

reasonably be inferred that deceased Ansar died as a

result of injuries caused to him in the alleged accident. It

is true that the father of deceased Ansar had given certain

admission in the cross examination to the effect that the

deceased Ansar did not follow the instructions given by the

Doctor and had he followed the said instructions, perhaps,

he would have survived. However, merely because of

the said admission it is difficult to hold that Ansar did not

die as a result of injuries caused to him in the alleged

accident. The Tribunal has very rightly observed that the

accidental injuries were the origin for long treatment of the

deceased; the deceased was bed ridden for one year and

developed so many complications and infections and

ultimately succumbed to the accidental injuries. It is

evident that the ultimate cause of death was the injuries

caused to the deceased in the alleged accident. I,

therefore, do not find any substance in the objection raised

13 FA NO.1642/2010

on behalf of the appellant that deceased Ansar did not die

because of the accidental injuries.

13. Now falls for my consideration the objection

raised by the appellant that it was the burden on the

Insurance Company to prove that the owner of the insured

truck had committed the breach of the terms of the policy

by adducing necessary evidence in that regard and by

placing on record the said insurance policy. Relying on

the judgment of this Court in the case of New India

Assurance Co.Ltd., Nagpur Vs. Rukhmabai wd/o Laxman

Charde and others ( 2009 (5) Mh.L.J. 833), it was

vehemently argued by Shri Palodkar, that in absence of

the policy on record and any evidence adduced by the

Insurance Company before the Tribunal to substantiate the

defense raised by it as about the breach of the terms of

the policy conditions by the owner of the truck, the

Tribunal could not have exonerated the Insurance

Company from its liability to indemnify the insured.

14. The argument so made as above is also liable to

be rejected. The judgment relied upon by the learned

Counsel cannot be of any help for the present appellant to

14 FA NO.1642/2010

support the case pleaded by him. It is not disputed that

the insured vehicle is a goods truck. As has been

elaborately discussed by me hereinabove, the claimants

have failed in proving that deceased Ansar was a person

with goods in the insured truck when the alleged accident

happened. As has been discussed by me, it has not been

proved that the insured truck was hired by deceased Ansar

and that the owner of the truck had received an advance

of Rs.5,000/-. Once it is held that the deceased was not a

person travelling in the insured vehicle as an owner of the

goods, the only inference which emerges is that the

deceased was travelling as a passenger in the goods

truck. Section 147 of the Motor Vehicles Act does not

require that the insurance policy shall cover the risk of a

passenger travelling in the goods truck. Since Insurance

Company was not statutorily liable to have the insurance

policy covering the risk of the passenger in goods truck, it

was not necessary for the Insurance Company to place on

record the terms of the insurance policy so as to prove the

breach of the terms of the said policy by the insured. On

the contrary, if it was the case of the insured that the

insurance policy purchased by him was covering the risk of

15 FA NO.1642/2010

the deceased, the burden was on the insured to place on

record the policy of insurance. The facts in the case New

India Assurance Co.Ltd., Nagpur Vs. Rukhmabai wd/o

Laxman Charde and others (cited supra), relied upon by

the appellant were quite different and, therefore, the

decision in the said case cannot be applied in the facts of

the present case. In its written statement filed before the

Tribunal the Insurance Company had raised a specific plea

that it was not statutorily liable to cover the risk of the

deceased who was travelling as a passenger in goods

truck. In the premise of the plea so raised if it was the

case of the the appellant that the policy was covering the

risk of the deceased, the burden was on the appellant

insured to prove the said fact by bringing on record the

necessary cogent evidence therefor.

15. After having considered the entire material on

record, I do not find any error in the impugned judgment

and award. The appeal being devoid of substance

deserves to be dismissed and is accordingly dismissed. No

costs.

(P.R.BORA) JUDGE agp/1642-10fa.r