Smt. Archana @ Megha Manohar ... vs Shri Natthu Dinba Umare And 4 ...
2017 Latest Caselaw 6749 Bom

 FA 619.12.odt                                1


      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH : NAGPUR

                       FIRST APPEAL NO.619 OF 2012


 1]      Smt. Archana @ Megha Manohar Sathone,
         Aged about 30 years,
         Occupation-Household work,
         R/o. Warud, Tahsil-Hinganghat,
         District-Wardha.

 2]      Amey Manohar Sathone,
         Aged about 5 years,
         Occupation-Education,
         Minor through mother applicant no.1,
         R/o. Warud, Tahsil-Hinganghat,
         District-Wardha.

 3]      Bijabai w/o Ramaji Sathone
         (Deleted)                                 ..             APPELLANTS


                               .. VERSUS ..

 1]      Shri Natthu Dinba Umare,
         Aged about 66 years,
         Occupation-Agriculturist,
         R/o. Majara (Rehki), Tah. Warora,
         District-Chandrapur,
         (Vehicle owner bearing No.MH34/F615).

 2]      Shri Hanuman @ Rama Wasudeo Kharkar,
         Aged about Major, Occupation-Driver,
         R/o. Mangli, Tahsil-Bhadrawati,
         District-Chandrapur.
         (Driver vehicle bearing No.MH34/F615).

 3]      National Insurance Company Limited,
         Through Branch Manager,
         Wardha, Tahsil-District-Wardha.




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  FA 619.12.odt                            2
 4]      Shri Mirza Parvez Baig,
         Aged about Major,
         Occupation-Business,
         R/o. Shivaji Ward, Hinganghat,
         Tahsil-Hinganghat, District-Wardha.

 5]      Shri Dilip Pundlik Thamke,
         Aged about Major,
         Occupation.. R/o. Bothli,
         Tahsil-Chimur, District-Chandrapur.
         (Owner motor cycle no.MH34/J4124)..               RESPONDENTS



                     ..........
 Shri V.N. Morande, Advocate for Appellants,
 Shri A.W. Paunikar, Advocate for Respondent no.3.
                     ..........

                               CORAM : KUM. INDIRA JAIN, J.

DATED : SEPTEMBER 04, 2017.

ORAL JUDGMENT

This appeal takes an exception to the judgment

and award dated 11.4.2011 passed by the Motor Accident

Claims Tribunal, Wardha in Motor Accident Claims Petition

No.114/2008 hereby exonerating the insurance company

from its liability to pay compensation to the claimants.

2] The facts giving rise to the appeal may be stated

in brief as under :

(i) Appellants are the claimants in claim

petition under section 166 of the Motor Vehicles Act.

Appellant no.1 is the widow and appellant no.2 is the son of

Manohar Sathone, who died in a vehicular accident. On

17.4.2008, Manohar was proceeding towards Chimur on a

motorcycle. Dilip Pundlik Thamke was riding the motorcycle

and Manohar was pillion rider. When motorcycle reached

near village Wahangaon, a tractor-trolley bearing no.MH-

34/F-615 came from the opposite direction and gave a dash

to the motorcycle. The impact was so serious that Manohar

died on the spot. The rider of motorcycle also sustained

severe injuries. The tractor with trolley turned turtle and its

driver fled away from the spot.

(ii) Accident was reported to the concerned

Police Station. Crime was registered against the driver and

offending tractor-trolley. After investigation, chargesheet

came to be filed before the Judicial Magistrate, First Class.

3] It is the case of claimants that offending vehicle

was insured with National Insurance Company (R-3).

Respondent no.1 was the owner of vehicle at the time of

accident, respondent no.2 was its driver, respondent no.4

was the previous owner in whose name insurance papers

were issued by respondent no.3. Claimants submitted that

respondent nos.1 to 3 are jointly and severally liable to pay

compensation on account of death of Manohar.

4] It is not in serious dispute that at the relevant time

deceased was 40 years old. He was a teacher by profession.

According to claimants, monthly salary of Manohar was

Rs.15,870/- at the time of death. He was the sole

breadwinner in the family. Claimants claimed compensation

of Rs.21,40.860/- from non-applicant nos.1 to 3 jointly and

severally with interest thereon.

5] Non-applicant nos.1, 3 and 5 resisted the claim by

filing written statements at Exhibits 20, 23 and 22

respectively. The driver of offending vehicle alleged that

accident occurred due to rash and negligent driving of

motorcycle by non-applicant no.5 Dilip Thamke and he was

not responsible for causing the accident. Non-applicant no.5

Dilip Thamke, on the other hand, alleged that non-applicant

no.1 was responsible as he was driving the vehicle in a rash

and negligent manner. Alternatively, it was submitted by

non-applicant no.1 that vehicle was insured with non-

applicant no.3 and in case claimants are held entitled for

compensation, the liability be fastened to the insurance

company.

6] In the written statement, respondent no.3

admitted that tractor-trolley was insured with the company

in the name of non-applicant no.4. It is not in dispute that at

the time of accident vehicle was insured with respondent

no.3. It was submitted that tractor and trolley were insured

for agricultural purpose but at the time of accident, trolley

was loaded with bricks and thereby owner of the vehicle was

liable for breach of terms and conditions of insurance policy.

The submission was that in view of breach of terms and

conditions of policy, insurance company cannot be held

liable.

7] On the basis of the rival pleadings, tribunal framed

issues at Exh.28. Claimants examined PW-1 Archana

Sathone and PW-2 Vinod Sayankar, clerk of the school,

where deceased was serving as a teacher. Insurance

company examined one witness from R.T.O. office,

Chandrapur to show that driver was not holding valid and

effective driving licence at the time of accident.

8] Based on the pleadings, oral and documentary

evidence, tribunal came to the conclusion that driver of

tractor and trolley was responsible for accident and awarded

compensation of Rs.20,40,860/- with interest at the rate of

9% per annum against non-applicant nos.1 and 2 i.e. owner

and driver of offending vehicle. Relying upon FIR, tribunal

observed that trolley was loaded with bricks and it was used

for the purpose other than agricultural purpose. On the

basis of facts enumerated in FIR, tribunal held that there

was breach of terms and conditions of insurance policy and

in consequence thereof exonerated the insurance company

from the liability to pay compensation. It is this order of

exoneration of insurance company which is the subject

matter of present appeal.

9] The learned counsel for appellants submitted that

insurance company has not adduced any evidence. The

submission is that burden to prove breach of terms and

conditions of insurance policy was on the insurance

company. It is submitted that since the insurance company

has failed to discharge its burden, tribunal wrongly held that

liability cannot be fastened to the insurance company.

Alternatively, it is submitted that the tribunal ought to have

applied the principle of pay and recover and insurance

company should have been directed to pay the amount to

the claimants and then recover the same from the owner of

the vehicle. In support thereof, learned counsel relied

upon :

(i) Manuara Khatun and others .vs. Rajesh Kr. Singh and others [2017 ALL SCR 599]

(ii) The New India Assurance Company Limited .vs.

Smt. Rukhmabai wd/o Laxman Charde and others [2009 (4) ALL MR 575]

(iii) The Divisional Manager, New India Assurance Company Limited .vs. Vandana wd/o Prabhakar Gaigol and others [2015 (7) ALL MR 407]

(iv) United India Insurance Company Limited .vs. Smt. Shashi Prabha Sharma and others [2015 (6) ALL MR (JOURNAL) 59]

(v) Ramesh Chand s/o Shri Nanu Ram .vs. Ramesh Chand s/o Shri Bhura @ Bhura Lal and others [2017 (1) ALL MR (JOURNAL) 65.

10] Per contra, learned counsel for insurance company

submits that FIR clearly indicates that trolley was loaded

with bricks. The submission is that loading of trolley with

bricks is indicative of the facts that the trolley was not being

used for the purpose for which the vehicle was insured with

insurance company. Learned counsel submits that breach of

terms and conditions of policy can be seen from the policy

itself and also from FIR. It is submitted that it was not

necessary for the insurance company in this situation to

examine any witness as breach was apparent on the basis of

FIR. Learned counsel supports the judgment and award

passed by the tribunal.

11] On the basis of rival pleadings and submissions

made on behalf of the parties, following points arise for

determination in the instant appeal :

(i) Whether respondent no.3 could prove breach of terms and conditions of insurance policy.

(ii) Whether liability can be fastened to the insurer.

                (iii)     Whether interference is warranted in the
                          impugned        judgment    and   award
                          exonerating respondent no.3 from its
                          liability to pay compensation.


 12]            So far as exoneration of insurance company from

 payment             of   amount   of   compensation        is    concerned,

respondent no.3 in its written statement took a plea that

vehicle was insured for agricultural purpose and it was being

used for hire and reward, as FIR clearly shows that bricks

were loaded in the trolley. No witness has been examined to

prove the breach of terms and conditions of policy. From

FIR (Exh.37) it can be seen that trolley was loaded with the

bricks. Except this averment, there is nothing in FIR to

indicate that tractor/trolley were used for a particular

purpose and for the purpose other than mentioned in the

insurance policy. Needless to state that FIR is not a

substantive piece of evidence and it was incumbent on

insurance company to examine the witness in order to

establish its defence regarding breach of terms and

conditions of policy.

13] Another significant factor in the present case is

that policy in question is a comprehensive policy, it covers

the risk of third party. In such a situation, tribunal, without

examining the terms and conditions of policy, risk covered

therein and ignoring the liability that FIR is not a substantive

piece of evidence wrongly came to the conclusion that

insurance company is not liable to pay compensation to the

claimants. The impugned judgment and award exonerating

the insurance company is thus unsustainable in law. Hence,

the following order :

ORDER

(i) First Appeal No.619/2012 is allowed.

(ii) Clause (2) of the judgment and award dated

11.4.2011 passed by Motor Accident Claims Tribunal,

Wardha in Motor Accident Claim Petition No.114/2008 is

modified in the following terms.

Clause (2) : Non-applicant nos.1 to 3 are jointly

and severally liable to pay Rs.20,40,860/- (Twenty

Lacs, forty thousands, eight hundred sixty) to the

claimants jointly and severally with interest at the

rate of Rs.9% per annum from the date of petition

till the realization of the entire amount, including

amount under No Fault Liability (if any).

Clause (3) : Set aside. Rest of the clauses shall

be renumbered in chronology.

 (iii)          No costs.



                                   (Kum. Indira Jain, J.)
 Gulande, PA