The Oriental Insurance Co. Ltd vs Anusaya Hanmant Mahapure And ...
2021 Latest Caselaw 9164 Bom

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ISM
                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          CIVIL APPELLATE JURISDICTION

                                FIRST APPEAL NO. 17 OF 2020
                                           WITH
                            CIVIL APPLICATION NO. 5433 OF 2008

      The Oriental Insurance Co. Ltd.                              ....Appellant
      Thr. Its Divisional Offcer

              V/s.

      Anusaya Hanmant Mahapure and others                          ....Respondents

                                          WITH
                           INTERIM APPLICATION NO. 395 OF 2021
                                           IN
                               FIRST APPEAL NO. 17 OF 2020

      Anusaya Hanmant Mahapure and others                          ....Applicant

              V/s.

      The Oriental Insurance Company Ltd.                          ....Respondents
      Through its Divisional Offce arad
      Branch, arad. And another

      Ms. Shali Shankar for appellant
      Mr. alpesh Patil for Respondent

                               CORAM :   NITIN W. SAMBRE, J.

                               DATE:     JULY 14, 2021.

      P.C.:

      1]      By consent taken on fnal hearing board and accordingly heard.







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This Appeal is by Insurance Company against the Award/Judgment

delivered in exercise of powers under Section 166 of the Motor Vehicles

Act in MACP No. 183 of 2004.

2] Deceased Hanmant was blessed with two sons Sarjerao and

Shivaji whereas Anusaya is his wife who are impleaded as respondent

nos. 1 to 3 to the present Appeal whereas Respondent no. 4 is vehicle

owner. On 08/07/2004 Jeep No. MH-09/G-2485 owned by

Respondent no. 4 was driven by a driver who was friend of deceased

Hanmant. Accordingly he gave lift to Hanmant and during travel while

overtaking another vehicle, Hanmant suffered a jerk resulting into

causing serious injuries. Hanmant died on 10/07/2004.

3] Respondent nos. 1 to 3 alleged negligence on the part of driver of

the jeep vehicle owned by respondent no. 4, lodged claim petition

claiming that deceased Hanmant about 49 years of his age. Claimants

were dependent on him. Hanmant was earning about 160 per day as

skilled worker being mason working with civil contractor. In support of

claim petition, Respondent no. 2 examined himself at Exhibit 26 so

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also Ramchandra at Exhibit 34 who was eye witness to the accident.

Appellant Insurance Company so as to establish breach of policy,

alleged that driver of the insured vehicle was not holding a valid

driving licence. In support, have examined its employee Mr. Shridhar

ashikar at Exhibit 48 who has produced copy of charge-sheet at

Exhibit 50. Another witness employee of the regional transport offce

namely Pandurang Rede was examined at Exhibit 40 so as to establish

that the driver of the offending vehicle was not holding a valid licence.

By the Judgment under challenge, Tribunal awarded compensation of

Rs. 2,74,000/- with 6% interest.

4] Learned counsel for the Insurance Company Ms. Shankar while

questioning the Judgment would urge that Tribunal committed an

error in recording a fnding that the driver of the offending vehicle was

negligently driving the jeep. She would urge that as the Respondent-

vehicle owner has failed to produce driving licence of the driver and

has also not established that the deceased was a gratuitous passenger,

liability ought to have been fastened on Respondent no. 4 i.e. owner.

She would also urge that there was breach of condition of policy and

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that being so, Judgment is liable to be upset.

5] Mr. alpesh Patil, learned counsel appearing for the original

claimant i.e. Respondent nos. 1 to 4 would support the Judgment

impugned.

6] I have considered rival submissions in the light of the evidence

recorded by the Tribunal at Exhibit 26, 34, documents produced in

support of the claim petition viz. copy of F.I.R. dated 18/07/2004 at

Exhibit 27, spot panchanama at Exhibit 28 and also charge-sheet in

C.R. No. 93/2004 registered against driver of Respondent no. 4 at

Exhibit 50, other evidence on the part of the appellant at Exhibit 48,

evidence of employee of the regional transport offce at Exhibit 40.

7] Since the appellant has come out with a case of breach of policy

conditions, entire burden shifts on the appellant to prove the same.

Appellant has not disputed that policy issued in favour of Respondent

no. 4 thereby ensuring the vehicle was a comprehensive policy which

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covers even the passengers alongwith vehicle.

8] From the deposition of claimant, particularly from the F.I.R., spot

panchanama and charge-sheet it is established that in the incident of

accident, Hanmant lost his life. Once the appellant has come out with

a case that driver of the ensured vehicle was not holding a valid

driving licence, it was incumbent for them to prove the same. In

support thereof, even if the evidence at Exhibit 48 of its employee

namely Shridhar and the evidence of employee from the regional

transport offce at Exhibit 40 is relied on, the appellant has failed to

establish or discharge the burden. Though it is claimed that a

communication was issued to Respondent no. 4 to produce driving

licence of driver of the offending vehicle, the fact remains that neither

such communication bears an outward number or a date, or even an

acknowledgment. Apart from above, it is to be noted that witness from

the regional transport offce has admitted that he has not examined

the registers containing the information about issuance of driving

licence so as to fnd out whether the driver of Respondent no. 4

namely Sambhaji adam was issued driving licence. Entire evidence of

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the appellant is vague in nature and as such, Tribunal was justifed in

recording a fnding that appellant has failed to establish breach of

policy conditions.

9] Apart from above, Tribunal has rightly considered the age of the

deceased Hanmant as 50 years having regard to the entry of date of

birth in the school leaving certifcate. The earning capacity of deceased

Hanmant on the date of accident was rightly so considered as Rs.

3,000/- per month as against claim of Rs. 4800/- per month of the

claimant and after adjusting 1/3rd of the expenses for deceased,

rightly proceeded to award compensation of Rs. 2,74,000/-which

includes Rs. 2500/- towards loss of estate, Rs. 2500/- towards funeral

expenses and Rs. 5,000/- towards loss of consortium and Rs.

24,000/- towards loss of dependency.

10] In that view of the matter, in my opinion, Judgment delivered by

the learned Motor Accident Claims Tribunal awarding compensation is

just and proper. No case for interference in appellate jusrisdiction is

made out. Appeal as such fails, stands dismissed.

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11] In view of dismissal of appeal, Respondent claimants are

permitted to withdraw the entire compensation with accrued interest

thereof. Interim application is allowed and disposed of accordingly.

[NITIN W. SAMBRE, J.]