Bombay High Court
Arwind S/O Sudhakar Nandurkar vs Smt. Yashwada Wd/O Keshav Burade And ... on 26 September, 2025
2025:BHC-NAG:9880
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
FIRST APPEAL NO. 1233 OF 2018
Arwind s/o Sudhakar Nandurkar
Aged about : 33 Years, Occu : Owner; R/o
Delanwadi Ward, Bramhapuri, Tahsil
Bramhapuri, District Chandrapur. ... APPELLANT
VERSUS
1. Smt. Yashwada wd/o Keshav Burade
Aged about : 55 Years, Occu : Nil;
2. Dilip s/o Keshav Burade
Aged about : 41 Years, Occu : Labour;
Both R/o Shiwrajpur, Tahsil Desaiganj,
District Gadchiroli.
3. HDFC ERGO General Insurance Company
Ltd., through its Manager, Office at 403(A),
4th Floor, Shree Shyam Tower, Near NIT
Building, Kingsway, Civil Lines, Sadar,
Nagpur.
4. Prakash s/o Arjun Thengre
Aged about : 30 Years, Occu : Driver; R/o
Arher Nawargaon, Tahsil Bramhapuri,
District Chandrapur.
5. Wandana w/o Vinod Thakare
Aged about : 38 Years, Occu : Household;
R/o Aasola, Tahsil Lakhandur, District
Bhandara.
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6. Ratnamala w/o Lalaji Deshmukh
Aged About : 36 Years, Occu : Household;
R/o Nainpur, Tahsil Desaiganj, District
Gadchiroli.
7. Urmila w/o Kartik Shilar
Aged about : 33 Years, Occu : Household;
R/o Pimpalgaon (Kharkada), Tahsil
Bramhapuri, District Chandrapur. ... RESPONDENTS
Mr. V. V. Joshi, Advocate h/f Mr. M. A. Deo, Advocate for Appellant.
Mr. S. K. Thengri, Advocate for Respondent Nos.2, 4 and 7.
Mr. A. M. Kukday, Advocate for Respondent No.3.
CORAM : PRAVIN S. PATIL, J.
ARGUMENTS HEARD ON : SEPTEMBER 18, 2025.
PRONOUNCED ON : SEPTEMBER 26, 2025.
JUDGMENT
. By the present Appeal, the owner of the Tractor No.
MH-33/L-1144 (for short, 'the offending vehicle') seeks to challenge the
Judgment and Award dated 8/12/2017 passed by the Motor Accident Claims
Tribunal, Gadchiroli in MACP No. 45/2014 on the ground that exoneration of
Insurance Company from the liability to pay the compensation is illegal. The
present Appeal is filed only to the extent of challenge that the Insurance
Company is responsible to pay the compensation to the Claimant.
2. It will be necessary to understand the matter by summarising the
facts in the matter.
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3. In the present case, the Respondent Nos.1 and 2/Claimants, who
are the legal representatives of deceased Keshav Narayan Burade, stated that
on 7/3/2014 at around 6.00 p.m. the deceased was travelling by Hero Honda
motor-cycle bearing No. MH-34/6164 as a pillion rider along with one Ishwar
Ghormode. When they reached on Arhar-Nawargaon-Bramhapuri road, the
offending vehicle, which was carrying sand came in high speed and the driver
was driving the vehicle in rash and negligent manner. As a result, the driver of
the offending vehicle lost control over the same and gave dash to the motor-
cycle, on which, the deceased was pillion rider. Due to the said dash, deceased
sustained grievous injuries and succumbed to the injuries on the spot.
4. It is further pointed out that due to this accident, the offence was
registered against the driver of the offending vehicle vide Crime No.
0033/2014 for the offence punishable under Sections 304-A, 279, 337 and 338
of Indian Penal Code read with Section 184 of the Motor Vehicles Act, 1988. It
is stated that the deceased, at the time of accident, was 60 years old and
earning Rs.60,000/- per year. He was agriculturist, and accordingly, claimed
Rs.3,00,000/- along with the costs and future interest.
5. The Respondent No.3/Insurance Company contested the claim
before the Motor Accident Claims Tribunal, Gadchiroli.
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6. Before the Tribunal, AW-1 Dilip Keshav Burade, who is son of the
deceased Keshav, was examined on behalf of the Claimants. He stated that
accident took place due to rash and negligent driving of the driver of the
offending vehicle and his father Keshav Narayan Burde died on the spot. He
further stated that in the capacity of legal representative of the deceased
Keshav, he is entitled for the compensation.
7. The Insurance Company has examined the Junior Clerk of the
Regional Transport Office, Nagpur namely, Gopal Shivaji Kopner as witness in
the matter. This witness has proved the driving licence of the offending vehicle,
which is marked as Exhibit-55. This witness was cross-examined by the
Claimants. In his cross-examination it is brought on record that the driver of
offending vehicle was having valid driving licence and he was entitled to drive
the vehicle. It is specifically brought on record that according to licence the
driver of the offending vehicle was entitled to drive the tractor loaded with
sand, soil and rice bags in the trolley.
8. The Insurance Company then examined the Manager of the
Insurance Company namely, Dipak Ramchandra Fadanvis. According to his
version, policy of the offending vehicle was issued only for the use of
agricultural produce and not for other purpose. This witness was cross-
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examined by the Claimants and it is brought on record that the Insurance
Company has not conducted enquiry in the matter, whether offending vehicle
was carrying sand or not; and whether the trolley was attached to the tractor
or not. As such, it is brought on record that no efforts were taken by the
Insurance Company to prove that there was breach of policy in the matter, and
therefore, they are not responsible for payment of compensation.
9. In the light of above evidence, the learned Tribunal proceeded to
decide the Claim Petition. The learned Tribunal held that the Claimants were
not the eye-witnesses of the incident. The entire case is based upon the police
papers. The driver of the offending vehicle, who was the witness of the
accident, was not examined by the owner of the offending vehicle. It is
specifically recorded that no attempt was made by the Insurance Company to
examine the driver in the matter. Hence, by relying upon the documents,
particularly, spot panchanama (Exhibit-40), the conclusion was drawn that
accident took place due to rash and negligent driving of the driver of offending
vehicle. Hence, it is held that the deceased died due to rash and negligent
driving of the offending vehicle i.e. Tractor.
10. The learned Tribunal, by relying upon the statement of witnesses
that offending vehicle was used for the purpose other than agriculture,
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amounts to breach of terms and conditions of policy, exonerated the Insurance
Company from payment of compensation. The learned Tribunal held that the
Respondent/Insurance Company should pay the compensation first and
entitled to recover the same from the owner of the vehicle by executing Award.
11. In the background of this factual position, the Appellant
approached to this Court stating that the finding recorded by the Tribunal that
there was a breach of terms and conditions of the policy and thereby
exonerated the Insurance Company is bad in law, and therefore, challenged the
same with a prayer that Insurance Company should he held responsible to pay
the compensation to the Claimants.
12. In the present Appeal, the Appellant has relied upon the Judgment
of the Supreme Court in the cases of Lakhmi Chand V/s Reliance General
Insurance, (2016) 3 Supreme Court Cases 100; and Manjeet Singh V/s
National Insurance Company Limited and Another, 2018(2) Supreme Court
Cases 108; and the Judgment of the Co-ordinate Bench of this Court in the
case of Malanbai w/o Mahipatrao Tumane and Another V/s Suresh s/o
Natthuji Moharle and Another, 2019(3) Mh.L.J. 821.
13. Per contra, the learned Counsel appearing for the Respondent
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No.3/Insurance Company has relied upon the Judgment of Hon'ble Supreme
Court in the case of ICICI Lombard General Insurance Company Ltd. V/s
Rajani Sahoo & Ors. 2025(3) Mh.L.J. 38 and Parmeshwari V/s Amir Chand
and Others, 2011 AIR (SCW) 1551.
14. I have heard both the Counsel at length. Perused the record as
well as the case laws relied upon by them in the matter.
15. In the present Appeal, before considering the matter on its own
merits, it will be expedient to mention that the Hon'ble Supreme Court in the
case of National Insurance Company Ltd. V/s Swaran Singh & Others, 2004(5)
Bom.C.R. 467 has laid down the certain principles in the form of summary of
finding in paragraph No.110 of the Judgment, which is reproduced as under :
"110. The summary of our findings to the various issues as
raised in these petitions is as follows :
(i) Chapter XI of the Motor Vehicles Act, 1988 providing
compulsory insurance of vehicles against third-party risks is a special
welfare legislation to extend relief by compensation to victims of
accidents caused by use of motor vehicles. The provisions of
compulsory insurance coverage of all vehicles are with this
paramount object and the provisions of the Act have to be so
interpreted as to effectuate the said object.
(ii) An insurer is entitled to raise a defence in a claim
petition filed under section 163-A or section 166 of the Motor
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Vehicles Act, 1988, inter alia, in terms of section 149(2)(a)(ii) of the
said Act.
(iii) The breach of policy condition e.g. disqualification of
the driver or invalid driving licence of the driver, as contained in
sub-section (2)(a)(ii) of section 149, has to be proved to have been
committed by the insured for avoiding liability by the insurer. Mere
absence, fake or invalid driving licence or disqualification of the
driver for driving at the relevant time, are not in themselves
defences available to the insurer against either the insured or the
third parties. To avoid its liability towards the insured, the insurer or
the third parties. To avoid its liability towards the insured, the
insurer has to prove that the insured was guilty of negligence and
failed to exercise reasonable care in the matter of fulfilling the
condition of the policy regarding use of vehicles by a duly licensed
driver or one who was not disqualified to drive at the relevant time.
(iv) Insurance companies, however, with a view to avoid
their liability must not only establish the available defence(s) raised
in the said proceedings but must also establish "breach" on the part
of the owner of the vehicle; the burden of proof wherefor would be
on them.
(v) The Court cannot lay down any criteria as to how the
said burden would be discharged, inasmuch as the same would
depend upon the facts and circumstances of each case.
(vi) Even where the insurer is able to prove breach on the
part of the insured concerning the policy condition regarding
holding of a valid licence by the driver or his qualification to drive
during the relevant period, the insurer would not be allowed to
avoid its liability towards the insured unless the said breach or
breaches on the condition of driving licence is/are so fundamental as
are found to have contributed to the cause of the accident. The
Tribunals in interpreting the policy conditions would apply "the rule
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of main purpose" and the concept of "fundamental breach" to allow
defences available to the insurer under section 149(2) of the Act.
(vii) The question, as to whether the owner has taken
reasonable care to find out as to whether the driving licence
produced by the driver (a fake one or otherwise), does not fulfil the
requirements of law or not will have to be determined in each case.
(viii) If a vehicle at the time of accident was driven by a
person having a learner's licence, the insurance companies would be
liable to satisfy decree.
(ix) The Claims Tribunal constituted under section 165 read
with section 168 is empowered to adjudicate all claims in respect of
the accidents involving death or of bodily injury or damage to
property of third party arising in use of motor vehicle. The said
power of the Tribunal is not restricted to decide the claims inter se
between claimant or claimants on one side and insured, insurer and
driver on the other. In the course of adjudicating the claim for
compensation and to decide the availability of defence or defences
to the insurer, the Tribunal has necessarily the power and
jurisdiction to decide disputes inter se between the insurer and the
insured. The decision rendered on the claims and disputes inter se
between the insurer and insured in the course of adjudication of
claim for compensation by the claimants and the award made
thereon is enforceable and executable in the same manner as
provided in section 174 of the Act for enforcement and execution of
the award in favour of the claimants.
(x) Where on adjudication of the claim under the Act the
Tribunal arrives at a conclusion that the insurer has satisfactorily
proved its defence in accordance with the provisions of section
149(2) read with sub-section (7), as interpreted by this Court above,
the Tribunal can direct that the in- surer is liable to be reimbursed by
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the insured for the compensation and other amounts which it has
been compelled to pay to the third party under the award of the
Tribunal. Such determination of claim by the Tribunal will be
enforceable and the money found due to the insurer from the
insured will be recoverable on a certificate issued by the Tribunal to
the Collector in the same manner under section 174 of the Act as
arrears of land revenue. The certificate will be issued for the
recovery as arrears of land revenue only if, as required by sub-
section (3) of section 168 of the Act the insured fails to deposit the
amount awarded in favour of the insurer within thirty days from the
date of announcement of the award by the Tribunal.
(xi) The provisions contained in sub-section (4) with the
proviso there- under and sub-section (5) which are intended to cover
specified contingencies mentioned therein to enable the insurer to
recover the amount paid under the contract of insurance on behalf
of the insured can be taken recourse to by the Tribunal and be
extended to claims and defences of the insurer against the insured
by relegating them to the remedy before regular Court in cases
where on given facts and circumstances adjudication of their claims
inter se might delay the adjudication of claims of victims."
According to this Judgment, it is held that Motor Vehicle Act being
a social welfare legislation to extend relief by compensation to the victims of
accident caused by the use of motor vehicles, the provisions of compulsory
insurance coverage of all the vehicles are with paramount object and the
provisions of the Act to effectuate the object. It is further held that in the case
of accident, Insurance Company has to establish its defence with regard to the
breach of policy condition, not only that Insurance Company has to specifically
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state as to what kind of breach of policy is there, and by such breach whether
it puts to an end the contract and such breach is so fundamental, which would
not entitle the Claimant to claim compensation in the matter.
16. In the present Petition from the findings of the Tribunal and the
evidence available on record, one thing is clear that the Insurance Company
failed to establish on record that there was a fundamental breach to the terms
and conditions of the Policy. The Company was at liberty, as observed by the
Tribunal, to record the statement of the driver of the vehicle by calling him as
a witness, but no such efforts were taken by the Insurance Company. The
witness, who was examined on behalf of the Insurance Company, failed to
point out whether the owner of the vehicle had permitted the driver to carry
the sand. It is also not established on record that the driver was carrying stolen
sand in the offending vehicle, and therefore, he was driving the same in rash
and negligent manner. It is further not established on record that whether at
the time of accident, the trolley was attached to the tractor or not. In absence
of this material evidence, it is difficult to reach to the conclusion that there was
a breach of policy in the matter.
17. The entire submission of the Insurance Company is that the
Claimants, in their application itself stated that the accident was occurred due
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to rash and negligent driving by the driver of the offending vehicle. But
admittedly, the Claimants were not the eye-witnesses of the incident. All they
have stated is on the basis of police case, which is registered in the matter. In
the circumstances, heavy burden was shifted on the Insurance Company to
establish on record that the offending vehicle was used contrary to the terms
and conditions of the policy. But the Tribunal, without distinguishing this
factual aspect, merely on the basis of police report, reached to the conclusion
that the tractor along with trolley was carrying sand, and therefore, the vehicle
was not used for the agricultural purpose and same amount to breach of terms
and conditions of policy.
18. It is pointed out that the Hon'ble Supreme Court in the case of
Lakhmi Chand (supra) has specifically observed in paragraph No.16 as under :
"16. It becomes very clear from a perusal of the above mentioned
case law of this Court that the insurance company, in order to avoid
liability must not only establish the defence claimed in the
proceeding concerned, but also establish breach on the part of the
owner/insured of the vehicle for which the burden of proof would
rest with the insurance company. In the instant case, the respondent
Company has not produced any evidence on record to prove that the
accident occurred on account of the overloading of passengers in the
goods-carrying vehicle. Further, as has been held in B. V. Nagaraju
that for the insurer to avoid his liability, the breach of the policy
must be so fundamental in nature that it brings the contract to an
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end. In the instant case, it is undisputed that the accident was in fact
caused on account of the rash and negligent driving of the offending
vehicle by its driver, against whom a criminal case vide FIR No. 66 of
2010 was registered for the offences referred to supra under the
provisions of IPC. These facts have not been taken into consideration
by either the State Commission or the National Commission while
exercising their jurisdiction and setting aside the order of the District
Forum. Therefore, the judgment and order of the National
Commission dated 26-4-2013 passed in Lakhmi Chand v. Reliance
General Insurance is liable to be set aside, as the said findings
recorded in the judgment are erroneous in law."
19. In the present matter, the policy of Insurance Company placed on
record at Exhibit-65 shows that under the heading of "limitation as to use", it
is stated that the vehicle can only be used for agricultural and forestry purpose.
It is nowhere stated that if the vehicle is used other than this purpose, the
Insurance Company would not be responsible, and same amount to
fundamental breach of the policy. Therefore, I am of the opinion that unless
the Insurance Company proved before the Tribunal that as per the terms and
conditions of policy the tractor was used for carrying the sand and same was a
fundamental breach of the policy, the Insurance Company cannot be
exonerated in the matter.
20. It is stated that the view of the Hon'ble Supreme Court in the case
of Lakhmi Chand (supra) was followed in the case of Manjeet Singh (supra).
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So also by this Court in the case of Malanbai Tumane (supra). This Court,
while deciding somewhat identical issue in the matter, has recorded the
finding in paragraph No.12 as under :
"12. It is thus held that the contents of Exhibit-57 cannot be held to
operate against the claimants. For that reason the instructions stated
therein cannot be used against them to defeat their claim. Similarly,
as carrying of nine passengers was permissible under the policy at
Exhibit-58, the alleged breach committed by the driver is not of a
criminal nature and hence the act of operating the jeep being an act
authorised by the owner but was done in an unauthorised manner,
the owner would be vicariously liable for that act. As regards breach
of policy conditions as held by this Claims Tribunal, it is well settled
in the light of the law as laid down in Lakshmi Chand and Majeet
Singh (supra) that the Insurance Company has to establish its
defence with regard to breach of policy conditions. Not only has it
has establish that there is a breach of policy but such breach has to
be so fundamental that it puts an end to the contract and that such
breach had caused the accident. These relevant aspects are
conspicuously missing in the present case. The Insurance Company
did not lead any evidence to prove that the breach in the form of
carrying some excess passengers was so fundamental in nature that
it resulted in causing the accident and thus putting an end to the
policy itself. Hence the finding recorded by the Claims Tribunal that
there was a breach of policy cannot be sustained. The said finding is
set aside. Point No. (i) is accordingly answered by holding that the
Claims Tribunal was not legally correct in exonerating the owner
and the Insurance Company from its liability."
21. It is further pertinent to note that even for the sake of moment it
is admitted that the Claimant has stated that accident occurred due to rash and
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negligent driving of the offending vehicle, the said admission, on their part,
cannot be used against the owner of the vehicle for the simple and valid reason
that they were not the eye-witness of the incident, and therefore, the
admission given by the Claimant cannot be used adverse to the owner of the
vehicle and in favour of the Insurance Company. In such case, the Insurance
Company was having the responsibility to prove beyond doubt before the
Tribunal that the driver of the offending vehicle and the owner has committed
fundamental breach of the terms and conditions of the policy.
22. It was further required on the part of Insurance Company that the
breach, which they alleged was of fundamental nature, and thereby they are
entitled for exoneration from the payment of compensation, but nothing has
come on record in the matter.
23. Hence, I am of the opinion that learned Tribunal has committed
an error by exonerating the Insurance Company from payment of
compensation to the Claimants. Hence, I proceed to pass the following order.
ORDER
1. The Judgment and Award dated 8/12/2017 passed by the Motor
Accident Claims Tribunal, Gadchiroli in MACP No. 45/2014 is hereby
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modified to the extent that the Respondent No.3/Insurance Company is
liable to pay the compensation to the Claimants.
2. Clause (5) of the operative part of the Judgment and Order of MACP No.
45/2014 exonerating the Respondent No.3/Insurance Company to pay
the amount of compensation is hereby quashed and set aside.
3. It is made clear that the Insurance Company and Appellant are jointly
and severally liable for payment of compensation as awarded by the
Tribunal.
4. Rest of the order passed by the Tribunal is confirmed.
5. First Appeal is disposed of in above terms. No order as to costs.
24. Since the First Appeal is disposed of, pending Civil Application
(CAF) No. 3410/2018 does not survive. The same stands disposed of
accordingly.
[PRAVIN S. PATIL, J.]
vijaya
Signed by: Mrs. V.G. Yadav
Designation: PS To Honourable Judge
Date: 29/09/2025 11:57:58
