Bombay High Court
Jivraj Amba Gurjar And Ors vs Ganesh Vishnu Sonwane And Ors on 29 January, 2024
2024:BHC-AUG:2302
FA-2631-2016.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 2631 OF 2016
1. Jivraj S/o Amba Gurjar,
Age 42 years, Occ: Labour,
2. Smt. Koyali W/o Jivraj Gurjar,
Age 40 years, Occ: Housewife,
3. Smt. Fulla Ramdeo Gurjar,
Age 19 years, Occ: Housewife,
4. Champalal S/o Jivraj Gurjar,
Age 16 years, Occ: Education,
5. Ramraj S/o Jivraj Gurjar,
Age 13 years, Occ: Education
Appellant nos. 4 and 5 u/g
Appellant no. 1
All R/o. Kaniya, Tq. Hurde, ...Appellants
Dist. Bhilwada (Rajasthan) (Orig.Claimants)
Versus
1. Ganesh S/o Vishnu Sonawane,
Age 31 years, Occ. Driver,
R/o Nimbhora, Tq. Kannad,
Dist. Aurangabad.
2. Mr. Nandkishore S/o Vishnu
Sonawane,
Age 33 years, Occ: Business
R/o. As above
3. The Divisional Manager,
New India Assurance Co. Ltd.
Ajay Engineering Compound, 2nd
Floor, Adalat Road, Aurangabad ...Respondents
***
Mr. R. B. Dhakane, Advocate for Appellants
Mr. S. R. Bodade, Advocate for Respondent No. 3
***
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FA-2631-2016.odt
CORAM : R.M. JOSHI, J.
DATE : JANUARY 29, 2024
PER COURT:
1. This Appeal is filed by the claimants
challenging exoneration of insurer from payment of
compensation.
2. There is no dispute about the fact that the
accident took place on 01.02.2013 while deceased Ramdeo
was proceeding on motorcycle from Vaijapur to
Aurangabad. When he reached to the spot of accident, a
tractor bearing registration no. MH-20-AB-8693 was
standing in the middle of the road without indicating
parking lights at the night hours. For want of parking
lights being kept on, the deceased's motorcycle was
dashed against tractor resulting into sustainment of
serious injuries to him. He was brought dead to the
hospital. Crime bearing no. I-36/2013 came to be
registered against the driver of the tractor at MIDC
Waluj Police Station. The claim of the claimants for
compensation was determined and allowed to the extent
of Rs. 28,55,000/-. Neither claimant nor insurer or
owner has challenged the said determination of
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FA-2631-2016.odt
compensation by learned Tribunal. Present Appeal is
filed on the ground that the Tribunal has committed
error in absolving the liability of the insurer to pay
compensation.
3. At the outset, learned Counsel for the
Claimants submit that the deceased was third party and
hence, irrespective of any breach of condition of
policy, the liability of insurer ought not to have been
absolved by Tribunal. It is his submission that even
otherwise alleged breach of condition of insurance
policy has not been proved by the insurer, to deny
liability. In support of his submissions, he placed
reliance on the judgment of Hon'ble Apex Court in case
of Pappu and Others Vs. Vinod Kumar Lamba and Another,
2018 (6) MH.L.J. 760. Without admitting the fact that
the insurer has succeeded in proving the breach of
conditions of policy in alternate it is submitted that
there needs to be an order of pay and recover against
insurer.
4. Learned Counsel for the Insurer opposed the
said contentions with submissions that in view of the
breach of conditions of the insurance policy, the
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FA-2631-2016.odt
liability of insurer stands absolved. It is his further
submission that the driver of the tractor was not
holding license to driver tractor with trolley.
According to him, the Tribunal has rightly held that he
did not possess valid and effective license to drive
tractor with trolley.
5. It is not the case of the insurer that the
driver of the vehicle was not holding any license. It
is sought to be contended that he was not holding
license to drive tractor with trolley. In this regard,
it would be relevant to take note of the judgment of
Hon'ble Apex Court in case of Mukund Dewangan Vs.
Oriental Insurance Company Ltd, (2017) 14 SCC 663 which
shows that in absence of any evidence indicating
unladen weight of the tractor and trolley beyond 7500
kgs, it remains a light motor vehicle and license to
drive LMV is considered as valid and effective license.
In view of this settled position of law, there is no
substance in the contention of the insurer that the
driver of the tractor was not holding a valid license.
Thus, in absence of proof of the breach of conditions
of insurance policy, it would not be open for the
Tribunal to absolve the liability of the insurer.
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FA-2631-2016.odt
6. Learned Counsel for the Insurer submits that
the Claimants have not sought direction of holding
insurer jointly and severally liable for payment of
compensation and the direction is sought only to pay
and recover.
It is pertinent to note that the claimants
have challenged the findings of the Tribunal absolving
the liability of the insurer. In such circumstances, it
is open for the claimants to seek joint and several
liability. In any case, ground no. D. of the Appeal
memo indicates that the claimants seeks to argue that
the insurer ought to have been liable to pay
compensation or at the most Tribunal ought to have
passed order of pay and recover. This shows that
specific ground is raised by the claimants in this
regard. Thus, this Court finds no substance in the
contention of learned Counsel for the insurer.
7. Having regard to the fact that the insurer has
failed to prove breach of terms of the insurance
policy, and in any case, the deceased was third party,
the order of Tribunal of absolving the insurer from the
liability to pay compensation cannot sustain. Hence,
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FA-2631-2016.odt
impugned judgment and award deserves modification.
Hence, the order
O R D E R
(a) Appeal is allowed.
(b) Insurer is jointly and severally liable
with owner and driver to pay compensation
as determined by the Tribunal.
(c) Rest of judgment and award to remain
unchanged.
(d) In view of disposal of Appeal, pending
applications, if any, are also disposed of.
(R. M. JOSHI, J.)
Malani
