The Oriental Insurance Co vs Vimlabai Govind Tilak And Ors
2017 Latest Caselaw 2626 Bom

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                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                CIVIL APPELLATE JURISDICTION

                                             FIRST APPEAL NO.175 OF 2003

The Oriental Insurance Co.                                                                                    ..Appellant
     Vs.
Vimlabai Govind Tilak & Ors.                                                                                  ..Respondents

Ms. Minal Chandnani i/b Mr. J. S. Chandnani for the Appellant.
None for the Respondent.

                                                                         CORAM:   C. V. BHADANG, J.

MAY 25, 2017.

ORAL JUDGMENT

. The Appellant/Insurance Company is challenging the judgment and award dated 28/6/2002 passed by the learned Motor Accident Tribunal, Pune ('Tribunal' for short). By the impugned award the Respondent Nos.2 and 3 who are respectively the driver and the owner of the offending vehicle have been directed to pay a compensation of Rs.2,95,000/- (inclusive of no fault liability) along with interest @ 9% p.a. from the date of application till realization. The compensation has been granted on account of permanent disability suffered by now deceased Smt.Vimalabai Tilak.

2. I have heard the learned counsel for the Appellant. None appears for the Respondent. With the assistance of the learned counsel for the Appellant I have gone through the record and the impugned award.

3. It is submitted by the learned counsel for the Appellant that as per the policy the risk of fare paying passengers traveling in the insured vehicle was not covered. The learned counsel referred to clause as to limitations as to use of vehicle in order to submit that the policy does not cover use of the vehicle, for hire or reward. It is submitted that the permissible use of vehicle is only for ordinary domestic pleasure purpose and the insured's own business. It

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is submitted that thus, the Tribunal was in error in holding the Appellant liable to pay the compensation. It is alternatively submitted that once there is breach of the policy condition the Tribunal ought to have passed an order in the nature of 'pay and recover'. In other words it is submitted that the Appellant may be permitted to recover the amount from the owner of the jeep.

4. I have carefully considered the circumstances and the submissions made. The accident occurred on 28/8/1996 at Valwan, Bombay-Pune Road, Lonavla, District Pune at 4.15 p.m. At the relevant time the injured now deceased Vimlabai along with some other ladies was traveling in a jeep bearing No.MH-G/11-5871 which was driven by the second Respondent. The third respondent is the owner of the vehicle. The case made out in the claim petition was that Vimlabai along with others, were going to Lonavla/Khandala for attending a seminar. When the jeep came near a 'Mori' the driver applied emergency breaks, as a result of which the jeep turned turtle, resulting into injuries to Vimlabai, the original claimant and others.

5. The Tribunal framed the following issues:

              SN                                                              Issues
                1      Does applicant prove that she sustained-injuries and thereby

permanent disability in accident dated 20/8/1996 due to direct result of rash and negligent driving of jeep No.MBG- 11-5871, driven by opponent No.1, owned by opponent No.2 and insured with opponent No.3 ?

2 Does opponent No.3 prove that the applicant was fare paid passenger and thereby there was breach of conditions of policy ?

                3      In applicant entitled to compensation ?
                       If yes, to what extent and from whom ?





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6. Before the Tribunal the original claimant Smt. Vimlabai examined herself and produced copies of the spot panchanama (Exh.53), first information report (Exh.54) and the judgment in the criminal case along with injury certificate, disability certificate and medical bills etc. On behalf of the Appellant one Gopal Kelkar was examined.

7. The Tribunal found that the driver of the jeep was negligent and thus, answered issued No.1 in the affirmative. The Tribunal negatived the defence on behalf of the Appellant that the original claimant was a fare paying passenger. Thus the Tribunal refused to accept that there was a breach of policy conditions and answered issue No.2 in the negative.

8. As noticed earlier the learned counsel for the Appellant has restricted the challenge of there being breach of policy conditions. It is the alternate submission that the Appellant be permitted to recover the amount of compensation which had already been deposited and withdrawn by the Respondent Nos.1(a) to 1(d), from the owner of the jeep.

9. The reasoning articulated by the Tribunal in so far as this defence of the Appellant is concerned, can be found in paragraph 13 of the impugned award. The Tribunal has refused to accept the evidence of Shri Gopal Kelkar, who was examined on behalf of the Appellant. Shri Gopal Kelkar claimed to be the Secretary of Senior Citizens Organization, Satara. This witness has stated that members of the organization were going to Lonavla for attending a seminar and for that purpose they had booked 4 jeeps on hire and 40 members of their organization were to attend the seminar. He stated that their Organization had paid fare of those four jeeps and the amount was contributed by the individual members including the original claimant. The Tribunal refused to accept the evidence of Shri Gopal Kelkar on the ground that the witness had not produced any document showing that he was a Secretary of the Organization and had failed to produce documentary evidence that each of

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the members of the seminar had contributed Rs.300/- each. The second reason for not accepting the defence of the Appellant is that the copy of the policy was not produced. The learned counsel for the Appellant has submitted that an application was made for production of the policy, however no order was passed on that. Be that as it may the Tribunal could not have disbelieved the evidence of Shri Gopal Kelkar for the reasons as stated. The learned counsel for the Appellant has tendered a copy of insurance policy which is a standard policy containing terms and conditions which can be noticed and taken into consideration. The limitations as to the use clearly show that the policy does not permit the use of vehicle for hire or reward. In any event, it cannot be accepted that the owner of the vehicle would provide four such vehicles ex- gratia to the Organization for traveling from Satara to Lonavla. The original claimant has herself come up with a case that she along with some other ladies were traveling in the jeep to Lonavla. Thus, in all probability, the claimant was a fare paying passenger in the vehicle. The next question is what is the order that can be passed in such a case. This Court in a case of United India Assurance Co. Ltd. vs. Sindhubai Darwante and others, 2010(3) Mah. L. J. 886 has held that in a case of breach of policy conditions, the Tribunal gets jurisdiction to pass an order in the nature of "pay and recover". In the said case also the deceased was found to be a fare paying passenger. The same depends upon the facts and circumstances of each case. In this regard reliance is placed on behalf of the Appellant on a recent decision of the Supreme Court in the case of Manuara Khatun & Ors. vs. Rajesh Kr. Singh & Ors. (Civil Appeal No.3047/2017 decided on 21/2/2017. It would be significant to note that in the present case the Appellant has already deposited amount of compensation and which is said to be withdrawn by the Respondent Nos.1(a) to 1(d). In such circumstances, I find that the impugned award needs to be modified. In the result, appeal is partly allowed. The impugned order is modified, permitting the Appellant to recover the amount of compensation paid/deposited, from the Respondent No.3/owner of the offending jeep by following procedure as laid down by the Supreme Court in the case of

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National Insurance Co. Ltd. vs. Challa Upendra Rao & Ors., 2004 (8) SCC 517 and/or National Insurance Co. vs. Saju P. Paul, (2013) 2 SCC 41. In the circumstances, there shall be no order as to costs.

(C. V. BHADANG, J.)