High Court
Legal Reasoning
1 915 FA1212.03IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADFIRST APPEAL NO. 1212 OF 2003Sadiq S/o Shabbir Shaikh,Age : 45 Years, Occu. : Business,R/o N.L.-2, Bldg. No. 2,R. No. C-4, Sector 3, near New Bombay... AppellantVersus1.The New India Insurance Co.New India Insurance Building -87,Mahatma Gandhi Road, Fort,Bombay – 400 001,Branch Office, Hutatma SmrutiMandir Complex, Park Chowk,Solapur – 413 001.2.Baba Dagdu Jadhav,Age : 60 Years, Occu. : Labourer,Resident of Paranda, talukaParanda, District Osmanabad.3.Saw. Rukminbai Baba Jadhav,Age : 52 Years, Occu. : Labourer,Resident of Paranda, talukaParanda, District Osmanabad.4.Sindhubai W/o Khandu Jadhav,Age : 34 Years, Occu. : Labourer,Resident of Paranda, talukaParanda, District Osmanabad.5.Savitra D/o Khandu Jadhav,Age : 19 Years, Occu. : Labourer,Resident of Paranda, talukaParanda, District Osmanabad. 2 915 FA1212.036.Sachin S/o Khandu Jadhav,Age : 14 Years, minor underguardianship of his real motheri. e. Respondent No. 4Sindhubai W/o Khandu Jadhav,Age : 34 Years, Occu. : Labourer,Resident of Paranda, talukaParanda, District Osmanabad.7.Seeta D/o Khandu Jadhav,Age : 10 Years, minor underguardianship of his real motheri. e. Respondent No. 4Sindhubai W/o Khandu Jadhav,Age : 34 Years, Occu. : Labourer,Resident of Paranda, talukaParanda, District Osmanabad.8.Sumitra D/o Khandu Jadhav,Age : 08 Years, minor underguardianship of his real motheri. e. Respondent No. 4Sindhubai W/o Khandu Jadhav,Age : 34 Years, Occu. : Labourer,Resident of Paranda, talukaParanda, District Osmanabad.9.Somnath Khandu Jadhav,Age : 05 Years, minor underguardianship of his real motheri. e. Respondent No. 4Sindhubai W/o Khandu Jadhav,Age : 34 Years, Occu. : Labourer,Resident of Paranda, talukaParanda, District Osmanabad.10.Sahabuddin S/o Shaikhala Shaikh,Age : Major, Occu. : Driver,Resident of Songiri, Tq. Bhoom,Dist. Osmanabad.(Driver of Truck No. MTB-4621).. Respondents
Legal Reasoning
3 915 FA1212.03Shri M. K. Deshpande, Advocate for the Appellant.Shri Mohit R. Deshmukh, Advocate for the Respondent No. 1.Shri S. T. Ghute, Advocate for the Respondent Nos. 2 to 9 – absent. CORAM :SHAILESH P. BRAHME, JJ. DATE :23RD APRIL, 2025.JUDGMENT :.Heard both sides.2.Appellant is the owner of the truck involved in theaccident, who is challenging judgment and award dated24.07.2003 passed by the learned Member, Motor AccidentClaims Tribunal, Osmanabad in M. A. C. P. No. 137 of 1997imposing liability of payment of compensation of Rs. 1,50,000/-on him with interest at the rate of 9% per annum from the dateof petition till realization. Impugned judgment absolves therespondent No. 1/Insurance company from liability to paycompensation, but permits it to recover amount of no faultliability of Rs. 50,000/- from the appellant.3.While admitting the appeal, this Court granted stay to theexecution of the impugned award on condition of depositingamount of Rs. 50,000/-. Appellant deposited Rs. 25,000/- towardsstatutory deposit and Rs. 50,000/- as per the condition of interimstay.4.The respondent Nos. 2 to 9 are the claimants and 4 915 FA1212.03dependents of deceased Khandu Jadhav. The deceased was 36years of old when he met with an accident. He was driving twowheeler which was given dash by the truck owned by theappellant, which was insured with the respondent No.1/insurance company. Immediately after accident firstinformation report was lodged and investigation was conducted.Few papers of the investigation were produced by therespondents/claimants before the Tribunal. The respondent No.10, driver was prosecuted for the offences punishable U/Sec. 279,337, 304(A) of the Indian Penal Code and U/Sec. 184, 66(1)/192 ofthe Motor Vehicles Act, 1988 (for short ‘M. V. Act”) in S.C.C. No.885 of 2003. Vide judgment and order dated 07.09.2007, he wasacquitted.5.The respondent No. 1/Insurance Company contested theclaim on the ground that the risk of the deceased was notcovered. He was not occupant of the truck. There was breach ofpermit U/Sec. 149(2) of the M. V. Act. There were as many as 40to 50 persons traveling in a goods carriage vehicle. Accidentoccurred due to rash and negligent driving of the truck.6.The claimants examined two witnesses and relied on thepapers of investigation. The insurance cover note was producedat Exhibit 65.7.It was held by the Tribunal that truck was being drivenrashly and negligently. The insurance company was exoneratedbecause the risk of the deceased was not covered. It was breach 5 915 FA1212.03of policy. Considering the source of income, the quantum wascomputed to the tune of Rs. 1,50,000/-.8.Learned counsel Mr. M. K. Deshpande, for the appellantsubmits that in view of judgment of acquittal dated 07.09.2007 inS.C.C. No. 885 of 2003, the finding regarding rash and negligentdriving is liable to be quashed. It is submitted that the deceasedwas a third party and was covered by policy and insurancecompany should have been held liable to pay the compensation.It is submitted that there was no material to infer that 30 to 40persons were traveling in a truck. Impugned judgment andorder is perverse and liable to be quashed.9.Per contra, learned counsel Mr. Mohit Deshmukhappearing for the respondent No. 1/Insurance Company submitsthat first information report, statements of witnesses namelyAbdul Gani and Shaikh Noor, which were produced by theclaimants before the Tribunal disclose that 30 to 35 persons weretraveling in a goods vehicle. He would submit that learnedTribunal has arrived at just and reasonable conclusion inexonerating the insurance company. He would submit that theobservations of the learned Tribunal that as there is breach ofpolicy, therefore, liability of the insurance company is notattracted is correct. It is submitted that there is breach of permitU/Sec. 149(2) of the M. V. Act. As the appeal is preferred by theowner of the truck, therefore, there is no question of passingorder of pay and recover. 6 915 FA1212.0310.Mr. Mohit Deshmulh, learned counsel for the insurancecompany relied on the judgment of the Supreme Court in thematter of Oriental Insurance Company Ltd. Vs. Premlata Shukla and othersreported in (2007) 13 SCC 476.11.I have considered rival submissions of the parties.Admittedly, present appellant and the driver of the truck did notfile written statement before the Tribunal opposing claim of therespondent Nos. 2 to 9. When impugned judgment waspronounced, prosecution of the driver in S.C.C. No. 885 of 2003was not concluded. He was acquitted on 07.09.2007. The policyof insurance placed on record at Exhibit 65 does show that thirdparty risk was covered. The claimants led oral and documentaryevidence in support of their claim and compensation of Rs.1,50,000/- was awarded with interest. Despite having sufficientopportunity, appellant did not prefer to file written statement.Learned counsel has no justification for not filing the writtenstatement. Therefore, there is very limited scope for theappellant in the first appeal.12.The claimants had produced papers of investigation of Cr.No. 26/1997. I have gone through those papers, which are FIR(Exhibit – 41), statement of Abdul Gani and that of Shaikh NoorIbrahim to disclose that 30 to 35 persons were traveling in truckon the fateful day. It was breach of permit as contemplated bySec. 149(2) of the M. V. Act. The papers of investigation arereliable. In that regard learned counsel Mr. Mohit Deshmukhhas rightly relied on the judgment of the Supreme Court in the 7 915 FA1212.03matter of Oriental Insurance Company Ltd. Vs. Premlata Shukla and others(supra).13.Perusal of the policy, which is at Exhibit 65 shows thatthird party risk was covered. The deceased who was drivingmotorcycle can be treated as a third party. The policy was inexistence, though there was breach of permit or breach of policyat the instance of the owners or driver of the vehicle. They couldhave been held liable and simultaneously order of pay andrecover could have been passed against the Insurance Company.However, claimants were satisfied with the award and they havenot challenge the same. Therefore, this Court need not saddlethe liability of payment of compensation upon the insurancecompany.14.As the appellant did not file pleadings and lead anyevidence before the Tribunal, it would not be open for him tochallenge the findings. Reliance is placed on the judgment ofacquittal. That itself would not enure to the benefit of theapellant. There is breach of policy as well as breach of permit.The Tribunal has rightly held the owner liable to pay thecompensation.15.I have gone through the findings recorded by the Tribunal.I do not find that any case is made out by the appellant to causeinterference. The conclusion drawn by the Tribunal isreasonable and quantum arrived at is also reasonable andplausible. I find no substance in the appeal. I, therefore, pass 8 915 FA1212.03following order.O R D E RA.First appeal is dismissed.B.Award be drawn up accordingly.C.Amount deposited by the appellant in this Court shall bedisbursed to the claimant with accrued interest forthwith.D.Original record and proceeding be sent back to theTribunal forthwith. [ SHAILESH P. BRAHME, J. ]bsb/April 25