Bharti Axa General Insurance ... vs Smt. Kamalabai Wd/O Babulal Ogale ...
2017 Latest Caselaw 7224 Bom

fa.1085.16.jud                    1


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

                      FIRST APPEAL NO.1085 OF 2016


Bharti Axa General Insurance Company Ltd.,
1st Floor, B Block, Vishnu Vaibhav Complex,
Palm Road, Civil Lines, Nagpur - 440 001,
through its Manager (Legal),
Shri Idris Zahad Khanwala.                                   .... Appellant

       -- Versus -

01]    Smt. Kamlabai wd/o Babulal Ogale,
       Aged about 38 years, Occ. Household.

02]    Gopal s/o Babulal Ogale,
       Aged about 21years, Occ. Labour Work.

03]    Ku. Gulfa d/o Babulal Ogale,
       Aged about 17 years, Student.

04]    Ku. Seema d/o Babulal Ogale,
       Aged about 15 years, Student.

       Respondents 1 to 4 are r/o
       50, Gram Banjaroka Dera, Tq. Garoth,
       District : Mandasour (M.P.)

       Respondents 3 and 4, being minor
       are represented by the respondent no.1
       i.e. the natural guardian mother.

05]    Dinesh s/o Daulat Ahir,
       Aged 29 years, Occ. Driver,
       R/o Plot No.12, Satnami Nagar,
       Near Hanuman Mandir, Bhandara Road,
       Nagpur, Tahsil and District Nagpur.




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 fa.1085.16.jud                           2


06]    M/s Global Logistics,
       R/o Khasra No.76, 50/1,
       Old Bus Stand, Butibori,
       District Nagpur.
       Second Address :
       Behind Mehta Petrol Pump,
       Bagadganj, Lakadganj, Nagpur.                             .... Respondents


Shri R.D. Bhuibhar, Advocate for the Appellant.
Shri P.V. Navlani, Advocate for Respondent Nos.1 to 4.

                CORAM           : KUM. INDIRA JAIN, J.

                DATE            : SEPTEMBER 15, 2017.


ORAL JUDGMENT :-

This appeal takes an exception to the order below

Exh.5 dated 29/06/2016 passed by the Motor Accident Claims

Tribunal, Mangrulpir (for short 'the Tribunal') in M.A.C.P.

No.7/2015 thereby allowing an application under Section 140 of

the Motor Vehicles Act (for short, 'the Act')and awarding interim

compensation of Rs.50,000/- to the dependents of Babulal Ogale,

who died in a vehicular accident.

02] The facts giving rise to the appeal may be stated in

nutshell as under :

i. Respondent no.1 is widow, respondent no. 2 is son

and respondent nos.3 & 4 are minor daughters of

Babulal Ogale. On 02/07/2013 between 01:00 p.m.

and 02:00 p.m., Babulal was proceeding from

Mangrulpir on his Bajaj Motorcycle. When he reached

near Tirumala Hotel T-Point on Karanja to Sheloo

Road, Trailer bearing No. MH-40/N-7514 driven by

respondent no.5 and owned by respondent no.6 came

in fast speed and gave a violent dash to the

Motorcycle of Babulal. He sustained multiple injuries

and died on the spot.

ii. It was the case of claimants that trailer was insured

with the appellant-insurance company. According to

them, accident occurred due to negligence on the

part of trailer driver and they are entitled to

compensation under Section 166 of the Act.

Accordingly, Claim Petition No.7/2015 came to be filed

by them claiming compensation of Rs.5.00 lacs. Along

with the claim petition, they also filed an application

[Exh.5] under Section 140 of the Act for interim

compensation.

iii. Application was resisted by insurance company on the

ground that driver of offending vehicle was not

holding valid and effective driving licence and in view

of breach of terms and conditions of policy, liability

cannot be saddled on the insurance company. Another

contention raised on behalf of insurance company

was that though policy was issued in the name of

owner of trailer, cheque issued in respect of premium

was dis-honoured and the insurance company in view

of dis-honour of cheque has cancelled the policy

before accident occurred. According to insurance

company, since policy was not in existence at the

time of occurrence of accident, company is not liable

to pay interim compensation to claimants.

iv. Upon hearing the parties, Tribunal came to the

conclusion that respondents therein are liable to pay

amount of Rs.50,000/- to the claimants towards

interim compensation and accordingly allowed the

application under Section 140 of the Act. Being

aggrieved by the order of awarding interim

compensation, insurance company has preferred

present appeal.

03] Heard Shri R.D. Bhuibhar, learned Counsel for

appellant and Shri P.V. Navlani, learned Counsel for respondent

nos.1 to 4. Learned Counsel for appellant submitted that cheque

issued towards premium was dis-honoured and as Insurance

company cancelled the policy, liability even to pay interim

compensation cannot be saddled on the company. Learned

Counsel submits that the insurance company can raise such

defence under Section 149(2) of the Act and the Tribunal has not

considered the defence in proper perspective. The submission is

that policy was not in existence at the relevant time and even if

it is assumed that policy was in existence, in view of breach of

terms and conditions of policy, liability under Section 140 of the

Act ought not to have been fastened on the insurance company.

In support of submission, learned Counsel placed reliance on the

decision of this Court in National Insurance Co. Ltd. vs.

Anand Sawant & Ors. - [II (2010) ACC 612].

04] Per contra, learned Counsel for respondent nos.1 to 4

submitted that the defence raised by insurance company cannot

be considered at the stage of determining 'no fault liability'. It is

submitted that breach of terms and conditions of policy will have

to be proved on merits and so far as existence of policy or its

cancellation later on is concerned, it is between insured and

insurer. Learned Counsel submitted that there is no material to

indicate that owner of vehicle was informed by insurance

company regarding dis-honour of cheque and cancellation of

policy at any point of time. It is submitted that in the absence of

such communication and as is evident from the policy, Tribunal

has rightly saddled the liability to pay interim compensation on

insurer.

05] With the assistance of the learned Counsel, perused

impugned order below Exh.5 passed by the Tribunal and the

pleadings raised by the parties in claim petition and in written

statement.

06] The only point which arises for determination is

whether insurer is liable to pay interim compensation under

Section 140 of the Motor Vehicles Act to the claimants and to

this, finding is in the affirmative for the reasons to follow.

07] It is not in dispute that vehicle involved in the

accident was insured with the insurance company and the

validity period of insurance as per policy was 09/03/2013 to

08/03/2014. Accident occurred on 02/07/2013 i.e. within the

validity period of insurance.

08] It is the contention of insurer that cheque issued

towards premium by insured was dis-honoured and later on in

view of dis-honour of cheque, policy stood cancelled. Insurance

company could not place any communication on record to

demonstrate that insured was informed about dis-honour of

cheque and cancellation of policy. Even otherwise, this question

cannot be gone into at this stage at the time of awarding interim

maintenance under Section 140 of the Act as the scope is limited

and the Tribunal was required to consider involvement of vehicle

in accident, resulting into death of Babulal Ogale.

09] From the police papers, it can be seen that the vehicle

insured with the appellant was involved in accident. So far as

factum of death in a vehicular accident is concerned, at this

stage, there is no serious dispute. As such, requirement of 'no

fault liability' under Section 140 of the Act is not necessary and

the insurance company in view of the policy, is jointly and

severally liable to pay interim compensation to the claimants.

No error or fault is found. Hence, the following order :

ORDER

I. First Appeal No.1085/2016 stands dismissed.

            II.     No order as to costs.



*sdw                                           (Kum. Indira Jain, J)