The Oriental Insurance Company ... vs Smt.Mohd.Hasan Rashid Khan And ...
2021 Latest Caselaw 10430 Bom

                                                                        1-FAST-8552-2008.doc

BDP-SPS



 BHARAT
 DASHARATH
 PANDIT
                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 Digitally signed
 by BHARAT
 DASHARATH
 PANDIT
 Date: 2021.08.10
                                     CIVIL APPELLATE JURISDICTION
                                    FIRST APPEAL (ST) NO.8552 OF 2018
 12:31:10 +0530




                                                  WITH
                                   CIVIL APPLICATION NO.3603 OF 2018
                                                  WITH
                                   CIVIL APPLICATION NO.3602 OF 2018
                                                   IN
                                    FIRST APPEAL (ST) NO.8552 OF 2018

                    The Oriental Ins. Co. Ltd. (HUB)               .... Appellant.

                                  V/s

                    Mohd. Hasan Rashid Khan and Ors.            ..... Respondents.
                    ----
                    Mr. Rohit Jadhav i/b NDB Law for the Appellant.
                    ----
                                    CORAM: NITIN W. SAMBRE, J.

                                        DATE:    AUGUST 05, 2021

                    P.C.:-

                    1]       This is an appeal by Insurance Company, questioning the

judgment delivered by the Motor Accident Claims Tribunal preferred

under Section 166 of the Motor Vehicles Act.

2] One Pratima who was hit by the motor-cycle bearing No.MH-02-

AZ-5038 in road accident on 11 th September, 2012 died on 12th

1-FAST-8552-2008.doc

September, 2012. The said motor-cycle was insured with the

Appellant.

3] The Respondents-claimants were awarded compensation vide

impugned judgment dated 5th December, 2017 which is questioned at

the behest of the Insurance Company.

4] Counsel for the Appellant/Insurance Company would urge that

even if private investigator hired by the Appellant was not examined,

employee of the Insurance Company has referred to the Investigator's

report. According to him, factum of breach of policy could be inferred

from the report of the Investigator, as is relied on by the

Appellant/Insurance Company. He would further claim that for the

offence registered against the driver of the insured vehicle, provisions of

Section 181 of Motor Vehicles Act were invoked as he was driving the

vehicle without proper license. Further contention of the learned

Counsel for the Appellant is, in view of law laid down by the Apex

Court in the matter of Shamanna and Anr vs. Divisional Manager,

Oriental Insurance Company Limited and Anr reported in (2018) 9

1-FAST-8552-2008.doc

SCC 650, once it is demonstrated that driver of the insured vehicle was

not holding license, it has to be inferred that there is breach of policy

conditions and that being so, order of pay and recover needs to be

passed.

5] As far as aforesaid contentions raised by the Appellant/Insurance

Company are concerned, the claimant, so as to establish factum of

accident, has examined Mohammad Rashid at Exibit-19 who has proved

the accident. He has also produced investigation papers about treatment

administered to the deceased, nature of injuries suffered by her, copy of

the FIR at Exibit-21, Inquest Panchanama at Exhibit-23 and Death

Certificate at Exhibit-24.

6] The Insurance Company though has examined its employee in

support of their contention that there is breach of policy conditions, fact

remains that private investigator who was hired by the

Appellant/Insurance Company was not examined. As such,

investigator's report at Exhibit-33 cannot be termed to have been proved

by the employee of the Insurance Company, particularly when he is not

1-FAST-8552-2008.doc

the author of the same. In the aforesaid backdrop, it cannot be said that

report of the investigator can be considered to be proved for the purpose

of inferring breach of policy conditions. Apart from above, provisions of

Section 181 of the Motor Vehicles Act were invoked against the driver

of the offending vehicle. Appellant/Insurance Company has failed to

demonstrate that charge against the driver of the offending vehicle was

proved so as to infer breach of policy conditions. Once it is not proved

by the Appellant/Insurance Company on whom burden lies that there

was breach of policy conditions, law laid down by the Apex Court in the

matter of Shamanna cited supra will be hardly of any assistance and the

order of pay and recover cannot be passed.

7] In the aforesaid backdrop, I hardly see any cause which warrants

interference in the judgment impugned, thereby awarding

compensation. Appeal as such fails and same stands dismissed.

8] As a consequence of dismissal of appeal, all pending applications

therein also stand disposed of.

1-FAST-8552-2008.doc

9] Needless to clarify that after appeal period is over, it shall be open

for the claimants to withdraw the entire amount of compensation with

interest on usual terms.

( NITIN W. SAMBRE, J. )