Bombay High Court
New India Assurance Company ... vs Sau Manda Ambadas Jadhav And 7 ... on 28 September, 2017
Bench: I.K. Jain
FA 828.06.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
FIRST APPEAL NO.828 OF 2006
New India Assurance Company Limited,
Divisional Office, Amravati,
through the Regional Manager,
Regional office,
New India Assurance Company Limited,
Jhansi Rani Square, Sitabuldi,
Nagpur. .. APPELLANT
.. VERSUS ..
1] Sau. Manda w/o Ambadas Jadhav,
Aged about 48 years,
Occupation-Household.
2] Ambadas s/o Balkrishnaji Jadhav,
Aged about 53 years,
Occupation-Labourer.
3] Kum. Urmila d/o Ambadas Jadhav,
Aged about 25 years,
Occupation-Nil.
4] Kum. Alka d/o Ambadas Jadhav,
Aged about 23 years,
Occupation-Nil.
5] Chainram s/o U. Jat,
Aged Major, Occ : Tractor owner and
Agriculturist, R/o. Surpaliya,
Tahsil-Jayal, District-Nagour (Rajasthan),
presently R/o. Jamni, Tahsil-Selu,
District-Wardha.
6] National Insurance Company,
Firdoz Chambers, Ramdaspeth,
Wardha Road, Nagpur.
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FA 828.06.odt 2
7] Punjabsingh s/o Dharamsingh Bawari,
Aged about 30 years,
Occupation-Agriculturist,
(owner of Motor Cycle)
R/o. Arvi, District-Wardha.
8] Bhawarlal s/o Chainram Jat,
Aged about 31 years,
Occupation-Driver,
R/o. Surpaliya, District-Nagour
(Rajasthan), presently at Jamni,
Selu, District-Wardha. .. RESPONDENTS
..........
Shri A.J. Pophaly, Advocate for Appellant,
None for respondent nos.1 to 5 though duly served on merit.
Ms. Prachi Joshi h/f Shri G.N. Khanzode, Advocate for
Respondent No.6,
Shri R.D. Bhuibhar, Advocate for Respondent No.7,
Smt. Jayshree J. Alkari h/f Shri S.V. Sohoni, Advocate for
Respondent No.8.
..........
CORAM : KUM. INDIRA JAIN, J.
DATED : SEPTEMBER 28, 2017.
ORAL JUDGMENT
This appeal takes an exception to the judgment
and award dated 25.3.2004 passed by the Motor Accident
Claims Tribunal, Wardha in Motor Accident Claim Petition
No.103/2001. By the said judgment and award, tribunal
awarded compensation of Rs.1,70,000/- and saddled the
liability to pay compensation jointly and severally on the
owners and insurance companies of tractor and motorcycle
along with interest at the rate of 9% per annum from the
date of petition till realization of entire amount.
2] For the sake of convenience, parties are referred in
their original status as were referred before the tribunal.
3] The facts giving rise to the appeal may be stated
in brief as under :
(i) On 13.12.2000 Mangesh Ambadas
Jadhav, a boy of 18 years, was proceeding on motorcycle
no.MH-32/EX-9586 through Anji-Virur road. He was a pillion
rider. Motorcycle was owned by respondent no.3 and
insured with respondent no.4/appellant. Petitioner nos.1 and
2 are parents and petitioner nos.3 and 4 are sisters of
Mangesh.
(ii) It is the case of petitioners that tractor
bearing no. RJ-21/3R-0433 driven by respondent no.5 in a
rash and negligent manner gave a dash to motorcycle and
due to dash Mangesh received injuries. He succumbed to
injuries in the hospital.
(iii) According to petitioners, Mangesh was a
bachelor and only son of petitioner nos.1 and 2. He was
assisting in household work and his assistance was of great
help to the parents. The tractor was owned by respondent
no.1 and insured with respondent no.2 at the time of
incident. Petitioners submitted that considering monthly
income of Mangesh as Rs.2,000/-, they would be entitled to
compensation of Rs.1,00,000/-.
4] Respondent no.1-owner of tractor remained
absent. Petition proceeded ex-parte against him.
5] Respondent no.2-insurer of tractor filed written
statement (Exh.61) and resisted the petition. According to
respondent no.2, driver of tractor was driving the vehicle
with care and caution, but due to negligence on the part of
motorcycle rider, accident occurred. The submission is that
four persons were riding on motorcycle in violation of rules
and in such a case, insurer cannot be held liable to pay
compensation.
6] Respondent no.3 filed written statement (Exh.22)
and submitted that tractor driver alone was responsible for
accident.
7] Insurance company of motorcycle-respondent
no.4/appellant resisted the petition vide written statement
(Exh.36). According to insurer of motorcycle, three students
in addition to rider of motorcycle were riding on motorcycle
in breach of terms and conditions of policy. It was submitted
that driver of tractor was driving the vehicle in a rash and
negligent manner though there was a slope on both sides of
the road. It was submitted that in view of breach of terms
and conditions of policy, liability cannot be fastened to
respondent no.4.
8] Respondent no.5 was the driver of tractor. He filed
written statement (Exh.32). According to him, road was in
bad condition. The rider of motorcycle had three more
persons as pillion riders and he could not control motorcycle
due to bad condition of road. The rider of motorcycle gave a
dash to tractor which was in moderate speed. The driver of
tractor, therefore, denied his role in occurrence of accident.
9] Based on the rival pleadings of the parties, tribunal
framed issues (Exh.39). Petitioners examined PW-1
Ambadas Jadhav and relied upon documentary evidence.
On scrutiny of evidence, tribunal came to conclusion that
drivers of tractor and motorcycle were rash and negligent
and responsible for occurrence of accident. The tribunal
considered Rs.15,000/- as notional income of deceased and
awarded compensation as stated herein-above against the
owners and insurers of both the vehicles. Being dissatisfied
with the liability saddled on insurer of motorcycle,
respondent no.4-New India Assurance Company Limited has
preferred this appeal.
10] Heard learned counsel for appellant and learned
counsel for respondent no.7.
11] Learned counsel for appellant submitted that the
risk of rider and owner of motorcycle was not covered under
the policy and appellant was not liable to make good the
loss caused to petitioners. Another submission on behalf of
appellant is that four persons were riding on motorcycle in
clear breach of terms and conditions of policy and even if it
is assumed that vehicle was insured at the relevant time,
in view breach liability should not have been saddled on
insurer. In support of submissions, learned counsel relies
upon judgment of learned Single Judge of this court at
Aurangabad Bench in United India Insurance Company
Limited .vs. Laila Ayyub Sayyad and others [I (2017)
ACC 33 (Bom.).
12] Per contra, learned counsel for respondent no.7-
owner of motorcycle, submits that in written statement
respondent no.4-appellant never raised defence regarding
coverage. It is submitted that in the absence of defence in
written statement, insurance company cannot be allowed to
agitate the ground on coverage for the first time in appeal.
According to learned counsel, breach of terms and
conditions of policy alleged is not fundamental in nature and
since vehicle was insured at the time of occurrence of
accident, tribunal rightly held insurer of motorcycle liable to
pay fifty percent compensation considering the plea of
contributory negligence.
13] With the assistance of the learned counsel for
appellant and respondent no.7, this court has gone through
the impugned judgment and award, pleadings of the parties
and evidence recorded by the tribunal. It can be seen from
written statement (Exh.36) filed by appellant before the
tribunal that defence regarding coverage has not been
raised by insurance company in the written statement. It is
significant to note that copy of policy indicating terms and
conditions was also not placed on record. Insurance
company relied upon certificate of insurance and on the
basis of certificate of insurance tried to demonstrate that
risk of rider of motorcycle has not been covered.
14] In the case relied upon by learned counsel for
appellant-insurance company specific defence regarding
coverage was raised. A copy of policy was part of record
and considering the terms and conditions of policy, defence
raised by insurance company and the facts indicating
occurrence of accident, the learned Single Judge held that
risk of deceased was not covered by insurance policy.
15] In the case on hand, as stated above, no defence
as such has been raised by insurer of motorcycle in written
statement. No policy has been placed on record. Perusal of
certificate of insurance would indicate that motorcycle was
insured between 9.11.2000 and 8.11.2001. Accident
occurred on 13.12.2000 that is within the validity period of
insurance. In the absence of policy and particularly terms
and conditions and also in the absence of specific defence in
written statement, ground raised by appellant regarding
coverage, as rightly submitted by learned counsel for
respondent no.7, would be unsustainable in law.
16] Further based on police papers, tribunal held
drivers of both the vehicles involved in accident liable and
apportioned the liability to the extent of fifty percent. It is
clear from the police papers that deceased was a pillion
rider on motorcycle and three boys, in addition to the rider
of motorcycle, were riding on motorcycle at the relevant
time. Considering the facts established through police
papers, tribunal came to the conclusion that rider of
motorcycle was also negligent and careless in riding the
motorcycle. This court does not find any fault with the
findings recorded by the tribunal and appeal deserves to be
dismissed. Hence, the following order :
ORDER
(i) First Appeal No.828/2006 stands dismissed.
(ii) No costs.
(Kum. Indira Jain, J.)
Gulande, PA
