Bombay High Court
The New India Assurance Co Ltd Thru ... vs Sadashiv Ganba Meshram & Anor on 18 September, 2017
Bench: I.K. Jain
FA 66.08.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
FIRST APPEAL NO.66 OF 2008
The New India Assurance Company
Limited, through its Branch Office,
Homi House, Kingsway, Nagpur,
Tahsil and District-Nagpur.
(Original Respondent No.2.) .. APPELLANT
.. VERSUS ..
1] Sadashiv son of Ganba Meshram,
Aged about 70 years,
Occupation-Nil, Resident of C/o.
Shri Ramsewak Thakur, Railway
Station Road, Katol, Tahsil-Katol,
District-Nagpur.
(Original Claimant).
2] Sardarsingh son of Sonmursingh
Rathor, Aged about 75 years,
Occupation-Jeep owner,
Resident of Kalpawayborawar,
District-Nagurat (Rajasthan),
(Original Respondent No.1.) .. RESPONDENTS
..........
Shri A.H. Patil, Advocate for Appellant,
None for respondents though duly served.
..........
CORAM : KUM. INDIRA JAIN, J.
DATED : SEPTEMBER 18, 2017.
ORAL JUDGMENT
This appeal takes an exception to the judgment
and award dated 28th September, 2007 passed by the
Motor Accident Claims Tribunal, Nagpur in Claim Petition
No.938/1998. By the said judgment and award, owner and
insurer of the vehicle involved in an accident have been
jointly and severally saddled with the liability of payment of
compensation amounting to Rs.1,30,000/- with interest at
the rate of 7.5% per annum from the date of petition till its
realization.
2] The facts giving rise to the appeal may be stated
in brief as under :
(i) Rajesh Meshram, aged about 27 years,
working as an electric wireman, was son of respondent no.1.
On 8.6.1998, Rajesh was travelling in Mahindra Jeep No.RSR-
17 from Katol to Nagpur. Near Dorli (Bhingare) shivar on
Katol-Kalmeshwar road, driver of jeep lost control and it
turned turtle near a bridge. Rajesh sustained injuries. He
was admitted to Indira Gandhi Medical College and Hospital.
During treatment he died on the same day.
(ii) Respondent no.1 filed a petition claiming
compensation under Section 166 of the Motor Vehicles Act.
It was submitted that accident occurred due to rash and
negligent driving of jeep by its driver and, therefore, owner
and insurer of the vehicle were liable to pay compensation.
3] Petition was resisted by insurer of
vehicle/appellant. According to insurance company, at the
time of accident, vehicle was carrying unauthorized
passengers and it was used for hire and reward purpose.
The submission was that policy was Act only policy and
vehicle was insured as a private vehicle. It was submitted
that in view of breach of terms and conditions of policy,
insurance company cannot be held liable to pay
compensation.
4] On rival pleadings of the parties, tribunal framed
issues at Exh.24. Petitioner examined himself and relied
upon various documents including police papers. PW-2 Ajay
Dhore, employer of deceased, was examined to prove his
income.
5] Considering the oral and documentary evidence,
tribunal came to the conclusion that accident occurred due
to rash and negligent driving of jeep by its driver and
petitioner was entitled to receive compensation of
Rs.1,30,000/- from the owner and insurer of vehicle along
with interest thereon, as stated in paragraph one above.
It is this order which is the subject matter of challenge in
this appeal.
6] The learned counsel for appellant submitted that
policy was an "Act Policy" and the risk of occupant of vehicle
was not covered under the policy. Learned counsel submits
that policy could not be placed on record and on the basis of
cover note (Exh.41), tribunal wrongly observed that it was a
comprehensive policy. Learned counsel, vide pursis dated
28.8.2017, produced a copy of policy and submits that it
being an "Act Policy" risk of deceased as an occupant was
not covered under the policy.
7] The learned counsel for appellant placed reliance
on the decisions of the Hon'ble Apex Court in (i) Oriental
Insurance Company Limited .vs. Surendra Nath
Loomba and others [2013 ALL SCR 30] and (ii)
National Insurance Company Limited .vs.
Balakrishnan and another [2013 ALL SCR 104] and
submitted that to decide, whether it is a "Comprehensive"
or "Act Policy", matter needs to be remitted to the tribunal.
8] None appeared for respondents though duly
served. On perusal of record, it appears that policy was not
produced either by petitioner or by respondents. Though in
paragraph 15 of the judgment, tribunal refers to insurance
policy (Exh.74), no such policy is found on record. Rojnama
of the proceedings clearly indicates that the last exhibit is
Exh.52 judgment delivered by the tribunal. This shows that
Exh.74 is not in existence and Exh.52 being the last
document, observations of tribunal in paragraph 15 are per
se against the report and without any base.
9] In the cases relied upon by the learned counsel for
appellant question which arose for consideration before the
Hon'ble Apex Court was, whether the policy was an "Act
Policy" or "Comprehensive/Package Policy". The certificate
of insurance, though was filed, policy was not brought on
record. In this situation, the Hon'ble Apex Court remitted
the matters to scrutinize the policy and to decide, whether
risk was covered.
10] In the case on hand, though policy was not filed
before the tribunal, copy of the same is now placed along
with pursis dated 28.8.2017. When cover note of insurance
is filed but the policy is not, it only conveys that the vehicle
was insured. The nature of policy cannot be discerned from
the same. In these situations, it would be appropriate to
remit the matter to the tribunal to enable the insurer to
produce the policy and grant liberty to the parties to file
additional documents and also lead further additional
evidence if necessary.
11] In the light of the above, following order is passed :
(i) First Appeal No.66/2008 is allowed to the
extent indicated herein-above and the impugned judgment
and award against appellant is set aside.
(ii) Matter is remitted to the tribunal for its
disposal in accordance with the law.
(iii) As the accident is of 1998, tribunal to
decide the petition, as early as possible and preferably
within a period of six months.
(iv) No order to costs.
(v) Steno copy is allowed.
(Kum. Indira Jain, J.)
Gulande, PA
