High Court
Legal Reasoning
fa-2885-2019.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADFIRST APPEAL NO.2885 OF 2019United India Insurance Company Ltd.,Kisan Kranti Building,Market Yard, Station Road,Ahmednagar-414 001.Through its Authorized Signatory/Divisional Manager, Divisional Office,Osmanpura, Aurangabad,Dist. Aurangabad. .. AppellantVersus1.Chhaya Rajendra PatilAge: 45 years, Occu.: Household,2.Rohan Rajendra Patil,Age: 22 years, Occu.: Education,3.Ravisha Rajendra Patil,Age: 20 years, Occu.: Education,All R/o. Bhambora, Tal. Karjat,District Ahmednagar4.Mrs. Aruna Changdeo DhawaleAge: 49 years, Occu.: Business,R/o. Hanga, Tal. Parner,Dist. Ahmednagar .. Respondents……….Mr. Mohit R. Deshmukh, Advocate for appellant.Mr. D. S. Menorkar, Advocate for respondent Nos.1 to 3 (Absent)Mr. K. N. Lokhande, Advocate for respondent No.4. ……... CORAM : SMT. VIBHA KANKANWADI AND ABHAY S. WAGHWASE, JJ. RESERVED ON : 12th December, 2023 PRONOUNCED ON : 20th December, 2023[1]
Legal Reasoning
fa-2885-2019.odtJUDGMENT [Per Smt. Vibha Kankanwadi, J.] :- .Present appeal has been filed by original respondent No.2 –Insurance Company to challenge the judgment and award passed in MotorAccident Claim Petition No.526 of 2016 on 05.04.2018 by learnedMember, Motor Accident Claims Tribunal, Ahmednagar, whereby the claimpetition filed by present respondent Nos.1 to 3, was partly allowed.2.The claimants contended that claimant No.1 is the widow andclaimant Nos.2 and 3 are the son and daughter of deceased RajendraPatil, who expired in motor vehicular accident on 12.09.2016. DeceasedRajendra was returning from Ahmednagar to Shrigonda with his friendBhausaheb Gawali on motorcycle bearing No.MH-16-BJ-1329. Deceasedwas driving the same and his friend was pillion rider. They wereproceeding via Ahmednagar-Daund road and when they reached withinthe limits of Belwandi village, a tempo bearing No.MH-12-FD-4839belonging to respondent No.1 came from Ahmednagar side in high speedrashly and negligently. The tempo gave dash to the motorcycle whileovertaking, as a result of which deceased sustained grievous injury. Hewas taken to Samir Kulkarni Hospital, Ahmednagar, where he succumbedto the injuries. The accident was reported to police and offence came tobe registered with Belwandi Police Station against the driver of the tempo.He has been prosecuted. The said tempo was insured with originalrespondent No.2 – Insurance Company on the date of the incident.[2] fa-2885-2019.odtDeceased Rajendra was Junior Engineer with the office of Quality Control,Sub-Division Board, Daund, District Pune and was getting monthly salaryof Rs.54,238/-. He had agricultural land admeasuring 3 H 93 R giving himannual income of Rs.25,00,000/- per annum. He was also getting incomeof Rs.10,00,000/- per annum from milk business and Rs.10,00,000/- perannum from petrol pump business. He could have got promotion and hissalary would have increased up to Rs.65,000/- per month. Therefore, theclaimants claimed compensation of Rs.3,00,000,00/- along with interest.3. It appears that the matter proceeded ex parte against respondentNo.1, as he failed to appear after service of notice, but later on appearedthrough Advocate, but had not filed written statement with the permissionof the Tribunal.4.Original respondent No.2 – Insurance Company filed writtenstatement at Exhibit-17. Age, income and the manner in which the accidenttook place, as pleaded in the petition, has been specifically denied. It isadmitted that the tempo was insured with it on the date of the allegedaccident. The petition suffers from nonjoinder of driver of the tempo asparty respondent. It has also been specifically pleaded that there is breachof terms of policy as the driver was not holding valid and effective drivinglicence to drive the particular type of vehicle and the tempo was notholding valid and effective permit and fitness certificate. Therefore, the[3] fa-2885-2019.odtinsurance company claimed exoneration from the liability to paycompensation. 5.The claimants have led evidence in the form of examining claimantNo.1 Chhaya – widow of deceased Rajendra and C.W.2 Ravindra Nawale,the Clerk from the office of deceased to prove his salary. The claimantshave produced on record the certified copies given by the policedepartment. Neither respondent No.1, nor respondent No.2 has led anyoral evidence or documentary evidence, but it appears that respondentNo.2 has relied on the documents produced by the claimants themselves. 6.After taking into consideration the evidence on record and hearingboth sides, the learned Tribunal has allowed the petition partly.Respondent Nos.1 and 2 were directed to pay compensation ofRs.66,72,869/- jointly and severally (inclusive of amount of NFL) withsimple interest at the rate of 7% per annum from the date of filing of thepetition till realization of the entire amount. 7.Heard learned Advocate Mr. Mohit R. Deshmukh for the appellant –Insurance Company and learned Advocate Mr. K. N. Lokhande forrespondent No.4/original respondent No.1. Learned Advocate Mr. D. S.Menorkar for respondent Nos.1 to 3 is absent. Perused the record andproceedings.[4] fa-2885-2019.odt8.It appears from the appeal memo that the insurance company ischallenging the entire judgment and award on all points and, therefore,following points arise for determination. Findings and reasons for thesame are as follows :-POINTSSr.No.Points Findings1.Whether claimants have proved that deceasedRajendra Patil expired in the accident dated12.09.2016 on Ahmednagar-Daund road and thesaid accident was caused due to the rashnessand negligence on the part of the driver of tempobearing No.MH-12-FD-4839 ?In the Affirmative2.Whether the Insurance Company has provedthat there are several breaches of terms andconditions of the insurance policy and, therefore,it is liable to be exonerated from the order ofpayment of compensation ?In the Affirmative3.Whether the claimants are entitled to claimcompensation ? If Yes, from whom and what isthe quantum ?In the Affirmative.As per the final orderREASONSPoint No.1 :9.Learned Advocate for the appellant – Insurance Company hasvehemently submitted that the claimants had not examined any eye[5] fa-2885-2019.odtwitness, but only relied on the police papers. On the basis of policepapers, in fact, the Tribunal ought to have held that this is a case ofcomposite negligence. The deceased was himself driving the motorcycleand could have taken his vehicle towards left to avoid the accident. Thispoint ought to have been considered and the percentage of the negligenceon the part of the deceased ought to have been carved out by the Tribunal.10.It is to be noted that claimants have examined the widowC.W.1 Chhaya, but admittedly she is not the eye witness. Claimants haverelied on the certified copies of the police papers. From those papers, itcan be seen that the FIR was lodged by Bhausaheb Gawali, who was thepillion rider of deceased. Though Bhausaheb has not been examined, wecan certainly go into the contents of the FIR Exhibit-43, as it is the certifiedcopy which is admissible in evidence in respect of claim petitions. It hasbeen clearly stated that they were proceeding from Ahmednagar toShrigonda and the tempo had come from opposite direction, but it wasovertaking the other vehicle going ahead of it. In the process of overtaking,the tempo had dashed motorcycle. The claimants are also relying upon thecertified copy of the spot panchanama Exhibit-44, which shows that thewidth of the road was 24 feet having 5 feet side margins on both the sides.The tempo was overtaking a truck. There were tyre marks of the tempoand it is clear from the rough sketch which is part of spot panchanama thatthe spot of impact is towards east, which was the wrong side of the tempo.[6] fa-2885-2019.odtIn other words, the motorcycle was going from its correct side i.e. left sidefrom north to south. The correct side for tempo was the western half, as itwas going from south to north, but the impact is just near the eastern edgeof the road. The accident took place due to the negligence on the part ofthe tempo driver is clearly established. Therefore, it is a clear case of Resipsa loquitur. It was not necessary for the claimants to examine anybodyto prove the accident. The claimants have filed inquest panchanamaExhibit-45 and postmortem report Exhibit-46. Both clearly show thatRajendra died due to accidental injuries. The point is, therefore, answeredin the affirmative.Point No.2 :11.It is to be noted that issue No.3 framed by the learned Tribunalwas in fact sufficient to consider the point as to on what count theInsurance Company intended to say that there is breach of terms of policy.Paragraph No.16 of the written statement Exhibit-17 filed by the InsuranceCompany was clear that the breach of terms of policy was raised on twocounts, one absence of valid and effective driving licence of the driver ofthe tempo and second that tempo was not holding valid and effectivepermit and fitness certificate. The learned Tribunal has answered issueNo.3 in negative. It is not in dispute that the insurance policy of theoffending vehicle tempo was valid from 17.06.2016 to 16.06.2017, whichwas covering the date of accident i.e. 12.09.2016. Exhibit-54 is the[7] fa-2885-2019.odtcertified copy of the driving licence of the driver of the tempo, which wasvalid till 22.02.2018 and it included transport vehicle. Therefore, there is nobreach on that count, but as regards the valid permit is concerned, thoughthe learned Tribunal has taken note of Exhibit-50 and Exhibit-51, it appearsthat the period has not been considered. Learned Advocate for theappellant points out that Exhibit-50 is the goods carriage permit of thetempo in the name of one Nandu Gavhane, resident of Golegaon, TalukaShirur, District Pune and it was valid from 31.03.2010 to 30.03.2015,however, it appears that he sold the vehicle to respondent No.1 and,therefore, she has obtained permit from Regional Transport Authority,Nashik i.e. Exhibit-51 in her name, but the date of expiry of permit is statedi.e. duration from 13.05.2011 to 12.05.2016. The accident took place on12.09.2016 i.e. four months after the expiry of the permit as per Exhibit-51.When specific defence was raised by respondent No.2 and respondentNo.1 had caused appearance, but failed to file written statement, yet shewas not estopped from filing any document to show that after 12.05.2016she has got the renewal of permit from the appropriate authority.Therefore, the position as it stands is from the record that was producedby the claimants that on the date of accident there was no valid permit12.Learned Advocate for the appellant has relied on the decisionin Amrit Paul Singh and Another Vs. Tata AIG General InsuranceCompany Limited and others, (2018) 7 SCC 558, wherein discussion[8] fa-2885-2019.odthas been made in respect of Section 2(47) of the Motor Vehicles Act,1988, which defines “transport vehicle”. Thereafter, Section 66 of theMotor Vehicles Act stipulates necessity for permits and the distinction hasto be made between “route permit” and “permit” in Section 149 of theMotor Vehicles Act. In the said case, it was admitted position that theoffending vehicle initially had a temporary registration and eventually thepermanent registration and it was demonstrated that on the date of theaccident, the said offending vehicle was not having a permit and it hasbeen therefore clearly held that in such a situation the onus cannot be caston the insurer. Therefore, according to him, there was no burden on theInsurance Company – original respondent No.2 to lead any evidence. Itwas in fact for original respondent No.1 to show that the offending vehiclewas having valid and effective permit on the date of the accident.Therefore, the Insurance Company is not liable to pay the compensation.In the alternative, it was also prayed on the basis of Amrit Paul Singh(Supra) that the directions be given for pay and recover. 13.The learned Advocate Mr. Lokhande for respondent No.4supported the reasons given by learned Tribunal and submitted that theInsurance Company has not led any positive evidence.14.As aforesaid, Exhibit-50 was the permit in the name of earlierowner of the vehicle, but it is not in dispute that the ownership stoodtransferred on or around 12.05.2011 in the name of original respondent[9] fa-2885-2019.odtNo.1. Exhibit-47 is the certificate of registration of the offending vehicle.In view of the change in the ownership, it appears that she approachedR.T.O., Nashik for issuing permit in her name and then after payment ofnecessary amount, it appears that the permit was granted as per Exhibit-51. Section 81 of the Motor Vehicles Act deals with duration and renewalof permits. Sub-section (1) of Section 81 of the Motor Vehicles Actprescribes that a permit other than the temporary permit issued underSection 87 or special permit issued under sub-section (8) of Section 88 ofthe Motor Vehicles Act shall be effective from the date of issuance orrenewal thereof for a period of five years. Sub-section (2) of Section 81 ofthe Motor Vehicles Act provides that a permit may be renewed on anapplication made not less than fifteen days before the date of its expiry.Sub-section (3) of Section 81 of the Motor Vehicles Act then carves out anexception by saying that notwithstanding anything contained in sub-section2 of Section 81, the Regional Transport Authority or State TransportAuthority, as the case may be, may entertain an application for the renewalof a permit after the last date specified in that sub-section if it is specifiedthat the applicant was prevented by good and sufficient cause from makingan application within the time specified. Then the further sub-sectionsgives power to Regional Transport Authority to either reject or allow suchapplications and the rejection should be as per sub-section (4) of Section81 of the Motor Vehicles Act. Sub-section (5) of Section 81 of the Motor[10] fa-2885-2019.odtVehicles Act then prescribes that where a permit has been renewed underthis section after the expiry of the period thereof, such renewal shall haveeffect from the date of such expiry irrespective of whether or not atemporary permit has been granted under clause (d) of Section 87 of theMotor Vehicles Act and where a temporary permit has been granted, thefee paid in respect of such temporary permit shall be refunded. Here, inthis case, respondent No.1 has not led any evidence. From the record itappears that respondent No.1 appeared in the matter on 05.01.2017.Written statement was filed by respondent No.2 on 30.06.2017 and on thesame day issues were framed by the learned Tribunal. Evidence has beenled thereafter, but it appears that learned Advocate for respondent No.1,then remained absent and has not taken part in the evidence at the time ofevidence. In the present appeal also a specific ground was raised atparagraph (IV) and till today respondent No.4 has not filed any documentto show that the said permit was ever got renewed in view of theprovisions of Section 81(3) of the Motor Vehicles Act and it has the effectunder Section 81(5) of the Motor Vehicles Act. The application ascontemplated under Section 81(3) of the Motor Vehicles Act can be filedonly by respondent No.1 and therefore, it was within her knowledge forwhich as per Section 106 of the Evidence Act the burden would be on herto adduce the evidence. Though the strict provisions of Evidence Act arenot applicable to the benevolent provisions under the Motor Vehicles Act,[11] fa-2885-2019.odtyet it is but-natural that a person who is supposed to have personalknowledge should prove it. We are also then guided by the Hon’bleSupreme Court in Amrit Paul Singh (Supra), wherein it has beenspecifically observed that the onus cannot be cast on the insurer. Thisaspect has not been considered by the learned Tribunal and, therefore, iterred in answering issue No.3 as negative. We, therefore, answer pointNo.2 in the affirmative, for the aforesaid reasons. Point No.3 :15.In view of the answer to point No.1 and the fact that theclaimants are the legal representatives of deceased Rajendra, they areentitled to get compensation. The offending vehicle was insured on thedate of the accident with original respondent No.2. No doubt, in view ofthe answer to point No.2 the Insurance Company has proved that there isbreach of terms of policy, as the offending vehicle was not having valid andeffective permit on the date of the accident, yet the question would bewhether the amount of compensation can be recovered from both therespondents jointly and severally. The answer lies in the aforesaid decisionof Amrit Paul Singh (Supra), wherein relying upon the principles stated inNational Insurance Co. Ltd. Vs. Swaran Singh, (2004) 3 SCC 297, theorder of pay and recover is required to be passed in this case, but certainlyas against the claimants, both the respondents are liable to pay[12]
Decision
fa-2885-2019.odtcompensation to them jointly and severally. 16.Now, as regards quantum, it appears that there is no error orillegality committed by the learned Tribunal in computation. The salarywhich deceased was fetching has been got proved through C.W.2. Duedeductions for income tax and professional tax etc. have been considered.Note has also been taken of the decisions in Sarla Varma and others Vs.Delhi Transport Corporation and Another, 2009 ACJ 1298 and NationalInsurance Company Ltd. Vs. Pranay Sethi and Others, [SLP (Civil)No.25590 of 2014]. The only fact that is required to be noted is that bythat time i.e. when the award was passed, the decision in Magma GeneralInsurance Company Limited Vs. Nanu Ram Alias Chuhru Ram andothers, (2018 (4) TAC 345) appears to have not been taken, but theoriginal claimants have not filed any appeal or cross-objection forenhancement in the compensation and, therefore, we hold that theclaimants were entitled to get compensation of Rs.66,72,869/- inclusive ofNFL amount together with interest. The point is therefore answeredaccordingly.17.In view of the findings to the points determined, the appealdeserves to be partly allowed to the extent of granting liberty to appellant –original respondent No.2 to recover the entire amount of compensationfrom original respondent No.1. With these observations, following order is[13] fa-2885-2019.odtpassed :-ORDER(i)The Appeal stands partly allowed.(ii)The operative order/Award passed by the learnedMember, Motor Accident Claims Tribunal, Ahmednagar on05.04.2018 in Motor Accident Claim Petition No.526 of 2016 ismaintained/confirmed as it is with following addition :-“4A]The original respondent No.2 – InsuranceCompany should pay amount of compensation to theclaimants first and then is allowed to recover the saidamount from original respondent No.1.”(iii)No order as to costs.(iv)The award be prepared accordingly.[ ABHAY S. WAGHWASE ] [ SMT. VIBHA KANKANWADI ] JUDGE JUDGEscm[14]