The New India Assurance Co. Ltd., ... vs Smt. Sunita Sahadeo Akarte And ...
2021 Latest Caselaw 10927 Bom

  1204 fa390.21 J .odt                             1



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

                          FIRST APPEAL NO.390 OF 2021

  The New India Assurance Co.Ltd.
  Khamgaon
  Presently through Chief Regional
  Manager, Regional Office,
  4th Floor, MECL Building, Seminary Hills,
  Nagpur                                               ..APPELLANT
                  Versus

  1. Smt. Sunita Sahadeo Akarte,
     aged about 49 years, Occ. Agriculture.

  2. Sandeep Sahadeo Akarte,
     aged about 29 years, Occ. Agriculture.

  3. Sau. Deepali Abhijeet Kale,
     aged about 26 years, Occ.Agriculture.

  4. Sagar Sahadeo Akarte
     aged about 24 years, Occ. Agriculture.

       All above respondent nos.1 to 4 are
       R/o Palshi Bk, Tq. Khamgaon,
       Distt. Buldana.

  5. Subhash Shaligram Murhe,
     aged about Major, Occ. Owner of Vehicle,
     MH-28-B-7629
     R/o Pimpalgaon Kale, Tq. Jalgaon Jamod,
     Distt. Buldana.
  6. Vasantrao Ramdas Gavhal,
     aged about Major, Occ. Business,
     R/o Palshi Bk. Tq. Khamgaon,
     Distt. Buldana.

  7. Murlidhar Manohar Patil,


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   1204 fa390.21 J .odt                                     2



    aged about 45 years, Occ. Driver,
    R/o Ward No.8, Khudanpur Nandura
    Tq. Nandura, Distt. Buldana.            ..RESPONDENTS
                         ....

Shri A.U. Paunikar, Advocate for the appellant. Shri G.I.Dipwani, Advocate for respondent nos.1 to 4. Shri V.B.Bhise, Advocate for respondent nos.5 to 7.

.....

CORAM : PUSHPA V. GANEDIWALA, J DATED : AUGUST 12, 2021.

ORAL JUDGMENT :

1. With the consent of both the counsels, the appeal is

taken up for final hearing at the stage of admission.

2. Admit.

3. Heard.

4. The appellant - Insurance Company has

challenged the Order dated 25.6.2018, granting compensation

under Section 140 of the Motor Vehicles Act towards `no fault

liability' in MACP No.61/2015 by the learned Member, Motor

Accident Claims Tribunal, Khamgaon,

5. The stand of the Insurance Company is that the

alleged vehicle - Eicher Tempo bearing No.MH-28/B/7629,

being a `goods carrier' vehicle, carrying the pilgrims in a goods

carrier vehicle is fundamental breach of the policy and,

therefore, the Insurance Company could not have been made

liable jointly and severally alongwith other opponents for

payment of compensation of Rs.50,000/- towards `no fault

liability'.

6. The learned counsel Shri A.W. Paunikar appearing

for the the appellant - Insurance Company submitted that the

learned Tribunal has failed to consider the averments in the

Written Statement of the Insurance Company; wherein there

was specific pleading that the aforesaid vehicle Eicher Tempo

bearing No. MH-28-B-7629 is in the category of goods carrying

vehicle, however, at the time of accident, the said vehicle was

being used for carrying unauthorized passengers by taking

Rs.2300/- per person towards fare charges and, therefore, the

owner of the vehicle has committed fundamental breach of

terms and conditions of the policy and consequently, the

Insurance Company is not liable to pay the compensation.

7. On the contrary, the learned counsel Shri

G.I.Dipwani appearing for respondent nos.1 to 4/Claimants

submitted that the question with regard to the breach of the

terms and conditions of the contract would require evidence

before the Court and, therefore, at this stage, the stand taken

by the Insurance Company cannot be considered.

8. I have considered the submissions put forth on

behalf of both the parties.

9. At the outset, whether there was a wilful breach of

the terms and conditions of the policy on the part of the owner

of the vehicle is a question of fact which needs to be decided

on the basis of evidence adduced by the parties before the

Tribunal. The object and specific purpose for bringing Section

140 in the Statute Book, is to provide an instant remedy to the

injured or dependents of the deceased who are the victims of

the unfortunate motor accident and suffered both physically

and financially due to untimely death of the deceased or

sudden physical disability of the injured. It is a kind of

immediate respite to the injured or the family members of the

deceased. Even, at this stage, whether the deceased or the

injured was at fault is not to be considered. Therefore, in the

absence of oral and documentary evidence on record, finding

with regard to the wilful breach of the terms and conditions of

the insurance policy by the insured cannot be recorded or else,

it would amount to recording a finding in favour of the

Insurance Company and exonerating it completely at the

threshold, that is certainly not the object and purpose of

bringing this salutary and beneficial provision in the Statute

book.

10. In this context, the Co-ordinate Bench of this Court

in the case of United India Insurance Co.Ltd. Nagpur Vs. Vijay

Manikarao Surkar in CAF No.1654/218 In

F.A.St.No.4176/2018 (decided on 26.11.2018), observed that

at the stage of deciding application under Section 140 of the

Motor Vehicles Act, the object of the Act for which the

provision of `No Fault Liability' is incorporated in the Statute

Book is to be kept in mind.

11. The Co-ordinate Bench of this Court further, in the

case of National Insurance Company Ltd. Vs. Udhao s/o

Narayan Butle and others reported in 2014 (3) Mh.L.J. 41,

observed that the contention that the victim was not

authorized to travel as a passenger in the truck, can be

considered when the main petition under Section 166 of the

Motor Vehicles Act is decided on merits on the basis of the

evidence.

12. Furthermore, in the case of Smt. Rammurli wd/o

Rampraksh Mishra and ors Vs. Rudresh B.Tiwari and Ors., in

First Appeal No.336 of 2003 (decided on 6.8.2015), yet

another Co-ordinate Bench of this Court while deciding the

appeal against an order passed under Section 140 of the Motor

Vehicles Act observed thus:

"Chapter 10 with Sections 140 and 144 provides for interim compensation on `No Fault" Basis. According to this provision Rs.50,000/- is to be given to the kith and kin of the deceased and Rs.25,000/- to the grievously injured victim. The compensation under Section 140 is made payable if prima facie evidence of following is available:

(i)Accident by the offending vehicle;

(ii)Offending vehicle being insured; and

(iii) Death or grievous injuries have been caused".

13. In the case in hand, a question whether there was

fundamental or wilful breach of policy or not, as stated earlier,

is to be decided on the basis of evidence adduced before the

Tribunal. At this stage, since, there is prima facie material on

record to indicate the death of the deceased in the motor

accident involving the alleged vehicle - Eicher Tempo bearing

No. MH-28-B-7629, which was insured with the appellant, the

the impugned Order passed under Section 140 of the Motor

Vehicles Act cannot be blamed. The insurer, therefore, cannot

escape from its liability under Section 140 of the Motor

Vehicles Act. However, it is open for the Insurer to contest the

main petition under Section 166 of the Motor Vehicles Act on

merits.

14. For the reasons aforestated, the appeal is devoid of

merits and the same is dismissed. The Insurance Company to

deposit the amount of compensation, if not already deposited,

within a period of six weeks with the Registry of this Court.

Thereafter, the claimants would be entitled to withdraw the

same.

JUDGE Ambulkar