Ajay Sahebrao Raut Prop.M/S ... vs Sakharam Bhikaji Sonunkar And 4 ...
2017 Latest Caselaw 543 Bom

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

                            FIRST APPEAL NO.220 OF 2004

M/s Jaihind Travelers, 
Thr. Prop. Ajay Sahebrao Raut 
Tilak Wadi, Yavatmal, 
Tq. and District Yavatmal.                             ... Appellant. 

-vs- 

1.  Sunil s/o  Suryakant Jaiswal 
     aged about 29 years, 
     Occupation - Agril. and service 
     R/o Sant Chokha Mela Ward, 
     Umerkhed, Ta. Umarkhed,  
     District Yavatmal. 

2.  The New India Assurance Co. Ltd.
     Thr. Branch Manager, 
     Branch office at Datta Chowk Yavatmal. 


                                             WITH
                            FIRST APPEAL NO.221 OF 2004

M/s Jaihind Travellers, 
Thr. Prop. Ajay Sahebrao Raut 
Tilak Wadi, Yavatmal, 
Tq. and District Yavatmal.                             ... Appellant. 

-vs- 

1.  Pramod s/o Narayan Mukirwar,
     aged about 35 years, 
     Occupation - Service, 
     R/o Isapur (Dam), Tq. Pusad, 
     District Yavatmal. 

2.  The New India Assurance Co. Ltd.
     Thr. Branch Manager, 
     Branch office at Datta Chowk Yavatmal. 



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                                              WITH 
                              FIRST APPEAL NO.222 OF 2004

M/s Jaihind Travels, 
Thr. Prop. Ajay Sahebrao Raut 
Tilak Wadi, Yavatmal, 
Tq. and District Yavatmal.                               ... Appellant. 

-vs- 

1.  Smt. Kamlabai Vittalrao Bande, 
     Age about 40 years, 
     Occupation - Household work. 

2.  Rajesh s/o Vithalrao Bande,
     Age about 28 years, 
     Occupation - Nil.  

3.  Kalpana d/o Vittalrao Bande,
     Age about 20 years, 
     Occupation - student.

4.  Mangala d/o Vittalrao Bande,
     Age about 17 years, 
     Occupation - student.  

5.  Indira d/o Vittalrao Bande,
     Age about 15 years, 
     Occupation - student. 

6.  Krishna s/o Vittalrao Bande,
     Age about 11 years, 
     Occupation - student. 

7.  Dinesh s/o Vittalrao Bande,
     Age about 9 years, 
     
    Respondent Nos.4 to 7 minors Thr. 
    Respondent No.1 being a Guardian. 

    Above all r/o Mainabai Nagar, 
    Itawa Ward, Pusad, Tq. Pusad, 
    District Yavatmal. 


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8.  The New India Assurance Co. Ltd.
     Thr. Branch Manager, 
     Branch office at Datta Chowk Yavatmal.            ... Respondents.  


                                          WITH 
                            FIRST APPEAL NO.223 OF 2004

Ajay Sahebrao Raut 
Prop. Of M/s Jaihind Travelers,
Tilak Wadi, Yavatmal, 
Tq. and District Yavatmal.                             ... Appellant. 

-vs- 

1.  Sakharam Bhikaji Sonunkar,
     Age :  about 52 years, 
     Occupation - Labourer

2.  Indubai Sakharam Sonunkar
     Age : 46 years. Occ. Labourer 

3.  Mandabai Dattaram Sonunkar,
     Age : about 24 years, Labourer, 

4.  Chandrakant Dattaram Sonunkar,
     Age : about 6 years (Under guardianship of 
     respondent Nos.1 to 3) 

    All r/o Mop, Tq. Pusad. 
    District Yavatmal. 

5.  The New India Assurance Co. Ltd.
     Thr. Branch Manager, 
     Branch office at Datta Chowk Yavatmal.            ... Respondents. 


                                           WITH 
                            FIRST APPEAL NO.386 OF 2005

The New India Assurance Co. Ltd.
Thr. Branch Manager, 



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Branch office at Datta Chowk Yavatmal.                         ... Appellant. 

-vs- 

1. Sudam Ramchandra Harip 
    Aged about 50 years,  


2.  Santosh Sudam Harip 
     Minor, Occupation Student, 

3.  Jitendra Sudam Harip 
     Minor, Occupation Student,  

4.  Rajendra Sudam Harip 
     Minor, Occupation Student, 

     Respondent nos.2 to 4 minors 
     Through their guardian Respondent No.1 
     Sudam Ramchandra Harip, 
     All residents of Shivan (BK), 
     Tq. Karanja, District Washim

5.  Jaihind Travels,
     Thr. Its Prop. Ajay Sahebrao Raut 
     Tilak Wadi, Yavatmal, 
     Tq. and District Yavatmal.                                ... Respondents. 


Shri Amol Mardikar, Advocate for appellant in F.A. Nos.220 to 223/2004 and
for respondent No.5 in F.A. No.386/2005. 
Shri K. S. Narwade, Advocate for claimants/respondents. 
Shri A. H. Patil, Advocate for respondent Insurance Company in F.A. Nos.220
to 223/2004 and for appellant in F.A. No.386/2005. 

                                                  CORAM  : A.S.CHANDURKAR, J. 

DATE : March 07, 2017

Common Judgment :

Since these appeals arise out of proceedings filed under Section

166 of the Motor Vehicles Act, 1988 (for short, the said Act) that arise from

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the same accident, they are being decided by this common judgment. F. A.

Nos.220 to 223 of 2004 raise challenge to the common judgment dated

05/11/2003 by the Motor Accident Claims Tribunal, Pusad, while

F.A.No.386 of 2005 raises challenge to the judgment of the Motor Accident

Claims Tribunal Akola.

2. It is the case of the claimants that on 26/04/1999 they were

travelling in bus No.MH-29-7550. Said bus was travelling from Pusad to

Yavatmal. On account of negligent driving of the said bus, the same met

with an accident resulting in fatalities and injuries to the passengers.

Proceedings under Section 166 of the said Act came to be filed seeking

compensation. The owner of the vehicle denied the liability to pay

compensation on the ground that the driver of the vehicle was not rash and

negligent. A plea was taken that the bus was duly insured with the

respondent No.2-Insurance Company and as the policy was valid it was the

liability of respondent No.2 to satisfy the claim. The Insurance Company

took the stand that there was a breach of policy conditions as the bus which

was registered as a tourist vehicle was used for carrying passengers as a stage

carriage. The Claims Tribunal after considering the entire evidence on

record held that the accident occurred on account of rash and negligent

driving of the driver. It was further held that the bus had been granted

permit for a tourist vehicle but it was used as a stage carriage resulting in

476-J-FA-220-04 with connected appeal 6/11

breach of policy conditions. By the impugned judgment, the owner of the

vehicle alone was held liable to satisfy the claim. Hence, F.A.Nos.220 to 223

of 2004 have been filed by the owner of the bus. F.A. No.386 of 2005 is filed

by the Insurance Company as it is aggrieved by the judgment of the Motor

Accident Claims Tribunal, Akola in proceedings arising from the same

accident wherein the Insurance Company has been held liable alongwith the

owner of the bus to satisfy the claim.

3. Shri Amol Mardikar, learned counsel for the appellant in F.A.

No.220 to 223 of 2004 submitted that the Claims Tribunal was not justified

in exonerating the Insurance Company from its liability. It was submitted

that the breach of conditions as alleged had not been duly proved by the

Insurance Company and the requirement of Section 149(2) of the said Act

had not been duly proved. It was submitted that there was no fundamental

breach of policy condition and even if there were some excess passengers in

the bus, the said aspect that was not sufficient to exonerate the Insurance

Company by holding that the policy conditions had been breached.

Learned counsel for the appellant placed reliance upon the following

decisions in support of her submissions :

(i) National Insurance Co. Ltd. vs. Swaran Singh and ors. AIR 2004 SC 1531.

(ii) National Insurance Co. Ltd. vs. Anjana Shyam and ors. AIR 2007 Supreme Court 2870.

  (iii)        Amalendu Sahu vs. Oriental Insurance Co. Ltd. AIR 2010 Supreme Court




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  (iv)        Judgment of this Court in F.A. No.430/1997 with connected appeals dated

25/03/2010. (Sanjay s/o Badriparad Khandelwal vs. Sukhiyabai w/o Baratiya Gond and anr)

It was therefore submitted that the judgment of the Claims

Tribunal in F.A. Nos.22 to 223 of 2004 deserves to be modified by holding

the Insurance Company also liable to pay the amount of compensation.

4. Shri K. S. Narwade, learned counsel for the claimants and Shri A. H.

Patil, learned counsel for the Insurance Company supported the impugned

judgment. Shri Patil, learned counsel referred to various provisions of the

said Act to indicate the difference between a transport vehicle and a stage

carriage. He submitted that there was a difference between contract carriage

and stage carriage under the said Act. As per the policy of Insurance the

vehicle in question was granted permit as a tourist vehicle but it was used as

a stage carriage and therefore the same resulted in breach of policy

condition. He then submitted that the Insurance Company had also led

evidence to substantiate its defence and the Claims Tribunal had rightly

exonerated the Insurance Company. It was submitted that the appeals were

liable to be dismissed.

5. In F. A. No.386 of 2005, Shri Patil learned counsel for the

appellant-Insurance Company submitted that one claim petition was filed

476-J-FA-220-04 with connected appeal 8/11

before the Claims Tribunal at Akola. Though identical claim petitions were

filed before the Claims Tribunal at Pusad in which the Insurance company

was exonerated, the copy of said judgment could not be placed on record

before the Claims Tribunal at Akola. He therefore submitted that in view of

the fact that the accident was one and the same, the Insurance Company was

also entitled to be exonerated from the liability.

These submissions were opposed by Shri Amol Mardikar, learned

counsel for the bus owner on the ground that the breach of policy was not

proved by the Insurance company and therefore it could not be exonerated.

6. With the assistance of learned counsel for the parties, I have

perused the records of the case and I have given due consideration to the

respective submissions. The finding recorded by the Claims Tribunal with

regard to rash and negligent driving of the bus by its driver is not seriously

under challenge. The only question that is required to be considered is with

regard to the liability of the Insurance Company. The following point arises

for determination :

" Whether the Insurance company is liable to be exonerated from

its liability and whether the owner of the bus alone is liable ? "

7. The Insurance Policy was placed on record at Exhibit-40 while the

permit was placed on record at Exhibit-41 in the proceedings before the

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Claims Tribunal at Pusad. The cover noted indicated that the bus was

insured as a tourist bus and the permit at Exhibit-41 was for a tourist vehicle.

As per Condition-3 of the said permit, the bus was not to be operated as a

stage carriage. According to the Insurance Company by operating the said

bus as a stage carriage there was a breach of policy condition.

8. The provisions of the said Act make a distinction between a

contract carriage and a stage carriage. The Act also prescribes a different

type of permit for a contract carriage and a stage carriage. This distinction is

clear from the provisions of Section 2(7), 2(40) and Section 2(43) of the said

Act. For the purposes of bringing on record this aspect of the matter the

Insurance Company examined one Deepak Killedar as its witness. He placed

on record the insurance policy and permit of the bus which indicated that it

was to be used as tourist bus. The claimants in their deposition had stated

that passengers travelled in the said bus from various points and also got

down at various points. While a contract carriage is not entitled to pick up

passengers during its journey, such course is permissible for a stage carriage.

It is after considering this evidence on record that the Claims Tribunal came

to the conclusion that by using the tourist vehicle as a stage carriage, the

policy conditions were violated by the owner of the bus and therefore the

Insurance Company was exonerated from its liability. On re-consideration of

the entire material on record I find that the aforesaid conclusion has been

476-J-FA-220-04 with connected appeal 10/11

arrived at in accordance with law.

9. In Swaran Singh and others (surpa), which was relied upon by

the learned counsel for the appellant, it has been held that breach of policy

conditions has to be specifically pleaded and then established by the

Insurance Company. The aspect of fundamental breach of policy was also

referred to. On considering the entire material available on record in the

light of the law referred to therein, it can be seen that after specifically

pleading a breach of policy condition, the same has been duly proved by the

Insurance Company by leading evidence. The decisions in Anjana Shyam

and ors. and Amalendu Sahu (supra) are clearly distinguishable in the facts

of the case. Once it is found that the vehicle was operated in a manner

contrary to the permit issued to it, the aspect of overloading of the bus is not

of much significance. In Sanjay Badriprasad Khandelwal (supra) it was

found that the policy in question was not placed on record so as to

substantiate the stand with regard to breach of policy conditions and hence

said decision is distinguishable on facts.

10. The Claims Tribunal has therefore rightly found that the

Insurance Company was liable to be exonerated from its liability. Considering

the nature of evidence on record this conclusion of the Claims Tribunal is in

accordance with law.

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In so far as the judgment of the Claims Tribunal, Akola is

concerned, these proceedings were decided after the claim petitions were

decided by the Claims Tribunal, Pusad. The order passed in those

proceedings however was no placed on record before the Claims Tribunal,

Akola. As the accident is one and the same and the adjudication is also

based on the same set of documents, two distinct orders based on identical

facts cannot be permitted to operate. Hence, even in the proceedings before

the Claims Tribunal, Akola the Insurance Company is liable to be exonerated.

The point as framed therefore stands answered accordingly.

11. In view of aforesaid, there is no reason to interfere with the award

passed by the Motor Accident Claims Tribunal, Pusad in MACAP Nos.322,

326, 331 and 340 of 2000 vide judgment dated 05/11/2003. The judgment

in MACP No.73 of 2000 decided by the Claims Tribunal, Akola to the extent

it holds the appellant in F.A. No.386 of 2005 liable is set aside. It would be

open for the Insurance Company- appellant in F.A.No.386/2005 to recover

the amount of compensation paid to the claimant from the owner of the

vehicle in accordance with law.

F.A.Nos.220 to 223/2004 are therefore dismissed.

F.A. No.386/2005 stands allowed.

There would be no order as to costs.

JUDGE Asmita