Bombay High Court
New India Assurance Co. Ltd vs Srimati Mainabai Nivrutti Sable And ... on 29 July, 2025
2025:BHC-AUG:19878
FA-241-2017
-1-
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 241 OF 2017
New India Assurance Company Ltd.
Branch Near Ashoka Hotel,
Abbott Building, Ahmednagar.
Through Authorized Signatory,
Legal Hub In-charge, Adalat Road,
Aurangabad. .... Appellant
(Orig. Respondent no.2.)
Versus
1. Srimati Mainabai Nivrutti Sable,
Age : 59 years, Occu. : Nil,
R/o. Koregaon (Chikhali),
Tq. Shrigonda, Dist. Ahmednagar.
2. Narayan S/o. Ramchandra Bandal,
Age : Major, Occu. : Business,
R/o. Kuruli, Tq. Khed, Dist. Pune. .... Respondents
.....
Mr. Sudhir V. Kulkarni, Advocate for Appellant.
Mr. Rahul B. Temak, Advocate for Respondent No.1.
.....
CORAM : ABHAY S. WAGHWASE, J.
RESERVED ON : 24 JULY 2025
PRONOUNCED ON : 29 JULY 2025
JUDGMENT :
1. Insurance Company - original respondent no.2 is hereby
challenging judgment and award passed by learned Motor Accident
Claims Tribunal, Ahmednagar dated 23.03.2015 granting
compensation on account of injury suffered by Smt. Mainabai Sable
and who had sought compensation by filing M.A.C.P. No.784 of 2011.
FA-241-2017
2. In the claim petition, in brief case of respondent - original
claimant was that claimant and her relatives were waiting on bus
stand at Nimgaon Khalu and were particularly taking shelter of
shadow of stationary truck bearing MH-12-CH-9715. Around 4:00
p.m., abruptly the said truck was moved in rash and negligent
manner running over the right leg and right hand of claimant and
thereby she allegedly suffered disability and lost her source of future
earnings. By rendering labour work, she used to earn Rs.4500/- per
month, which she has permanently lost and thereby sought claim to
the tune of Rs.3,00,000/-.
3. In response to the claim petition, opponent nos.1 and 2
caused appearance, but opponent no.1 failed to file written
statement. Contesting opponent no.2 Insurance Company vide
written statement (Exh.17) denied fault and negligence of the truck
driver, the injuries or permanent disabilities suffered by claimant
and thereby denied its liability.
After appreciating the respective stands and evidence
adduced in the court, learned tribunal was pleased to grant
compensation of Rs.4,95,397/-, which was directly to be jointly and
severally paid by opponent nos.1 and 2 with interest at the rate of 9%
per annum.
FA-241-2017
Above judgment and award dated 23.03.2015 is taken
exception to by Insurance Company by filing instant appeal on
various grounds spelt out in the appeal memo.
4. The specific stand taken by appellant Insurance Company
is that, firstly, there was no rashness or negligence on the part of the
driver of the truck which was admittedly insured by them. Second
defence was driver had no valid driving licence, which amounted to
breach of condition of policy. Thirdly, there to be no cogent and
reliable evidence about injury or disability. For above reasons,
learned counsel for Insurance Company urged to overturn the above
judgment and allow the appeal.
5. On the contrary, learned counsel for claimant justified
and supported the findings and conclusion pointing out that, there
was utter negligence on the part of the driver of offending truck.
That, the driver had valid driving licence and photocopy of the same
placed on record. That, Insurance Company before the tribunal raised
no objection to the same, and therefore, learned tribunal committed
no error in considering and relying the same. Learned counsel
pointed out that, the Insurance Company has not granted just
compensation as is required to be done by law, and thereby, he
sought enhancement.
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6. After considering each of the side and on going through
the impugned judgment, it transpires that, claim was set up on the
above premise that, on 12.05.2011, while claimant was taking
shelter at the rear side of the truck which was stationary, the truck
was moved over the leg of injured causing her injury. FIR is lodged on
the same day. MLC is also placed on record to substantiate accidental
injury. Case seems to have been set up that because of injury and
disability arising out of it, claimant who was rendering labour work
has been incapacitated from doing the same work and earning for her
livelihood.
7. From the written statement of Insurance Company,
grounds raised herein are also taken up before the tribunal i.e. failure
to prove negligence; non availability of valid driving licence with the
truck driver and thirdly no loss of earning as claimed.
8. Attention of this court is invited by learned counsel for
appellant to the impugned judgment. It appears that, to substantiate
the claim, FIR, spot panchanama, statement of claimant and medical
papers like Exhs.30 and 31 (Discharge card, Disability Certificate
and Medical Bills) are placed record. It is evident from the judgment
and the evidence adduced on behalf of Insurance Company that there
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is no serious challenge to the above discussed documents. On the
strength of such documents, there is no hesitation to hold that
rashness and negligence as well as suffering injuries out of motor
vehicle has been substantiated.
9. The sole ground raised in appeal, and which is much
emphasized, is the non-availability of driving licence of the driver
and thereby there is breach of condition of policy, due to which
Insurance Company is sought to be absolved.
10. Ownership of offending truck by opponent no.1 has not
been disputed. As stated above, challenge to the claim is on the
ground that driver was not holding valid driving licence at the time of
accident. Insurance Company is trying to get itself absolved for
breach of such condition. It is emerging from the papers that, driving
licence (Exh.56) to which 'no objection' has been tendered by the
claimant, date of renewal of licence is given as 28.01.2008 and it
seems to be directly renewed on 16.05.2011. Undisputedly, accident
in question is dated 12.05.2011. Therefore, before renewal itself and
when licence was yet to be renewed, accident had taken place.
Now, it is expected of Insurance Company to further
demonstrate that the owner of the truck was aware that the driver
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driving his truck, did not have a valid licence. Only when this is
demonstrated that insurance company would probably succeed and it
would be just for the Insurance Company to be absolved of the
responsibility. Here, as stated above, Insurance Company firstly has
not examined R.T.O. authority. Nothing has been shown to
demonstrate that owner was aware about currency of the licence
during above period or on the date of which accident allegedly took
place. Unless such burden is discharged, Insurance Company cannot
evade the liability. Precisely, fundamental breach of policy of
insurance has not been substantiated. For above reasons, mere
raising ground about breach of policy is itself not sufficient as above
required burden has not been completely discharged by the
insurance company.
Law to this extent is enunciated in the landmark cases of
National Insurance Co. Ltd. v. Swaran Singh and Ors . reported in
2004(3) SCC 297 and IFFCO Tokio General Insurance Co. Ltd. v.
Geeta Devi and Others reported in 2023 SCC OnLine SC 1398, which
is rendered by the Hon'ble Apex Court recently that mere taking
stand of non-availability of driving licence or breach of policy,
without discharging the burden is of no avail to the Insurance
Company. Here, it is noticed that, learned tribunal by the impugned
judgment even directed Insurance Company to be entitled to pay the
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compensation and recover the same from opponent no.1 without
filing suit. Thus, interest of Insurance Company is otherwise also
protected.
11. As regards to enhancement of claim sought by claimant is
concerned, this court has appreciated the contents of judgment in
paragraph 19, wherein calculations of entitlement of compensation
are dealt and discussed. For want of proof of earnings, learned
tribunal has rightly considered notional income, i.e. in the backdrop
of nature of work allegedly rendered by claimant. Therefore, this
court does not find any infirmity in considering notional income as
the base for further computation. Paragraph 20 shows that medical
bills are considered and amount towards it is awarded. Even distinct
amounts are granted under the head of pain and sufferings, loss of
income during affected period, conveyance and special diet.
Therefore, virtually each and every aspect for which claimant was
entitled, has been considered and granted by the tribunal.
12. In view of the nature of the claim and quality of evidence,
the view taken by tribunal for granting compensation seems to be
just and proper in the given facts and circumstances of the case.
FA-241-2017
13. Consequently no case being made out to interfere in the
judgment and award of the tribunal and there is no merits in the
case.
14. The appeal stands dismissed.
(ABHAY S. WAGHWASE, J.)
Tandale
