High Court · 2025

Legal Reasoning

FA-241-2017-1-IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADFIRST APPEAL NO. 241 OF 2017New 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.)Versus1.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 2025PRONOUNCED ON :29 JULY 2025 JUDGMENT : 1.Insurance Company - original respondent no.2 is herebychallenging judgment and award passed by learned Motor AccidentClaims Tribunal, Ahmednagar dated 23.03.2015 grantingcompensation on account of injury suffered by Smt. Mainabai Sableand who had sought compensation by filing M.A.C.P. No.784 of 2011. FA-241-2017-2-2.In the claim petition, in brief case of respondent – originalclaimant was that claimant and her relatives were waiting on busstand at Nimgaon Khalu and were particularly taking shelter ofshadow of stationary truck bearing MH-12-CH-9715. Around 4:00p.m., abruptly the said truck was moved in rash and negligentmanner running over the right leg and right hand of claimant andthereby she allegedly suffered disability and lost her source of futureearnings. By rendering labour work, she used to earn Rs.4500/- permonth, which she has permanently lost and thereby sought claim tothe tune of Rs.3,00,000/-.3.In response to the claim petition, opponent nos.1 and 2caused appearance, but opponent no.1 failed to file writtenstatement. Contesting opponent no.2 Insurance Company videwritten statement (Exh.17) denied fault and negligence of the truckdriver, the injuries or permanent disabilities suffered by claimantand thereby denied its liability. After appreciating the respective stands and evidenceadduced in the court, learned tribunal was pleased to grantcompensation of Rs.4,95,397/-, which was directly to be jointly andseverally paid by opponent nos.1 and 2 with interest at the rate of 9%per annum. FA-241-2017-3- Above judgment and award dated 23.03.2015 is takenexception to by Insurance Company by filing instant appeal onvarious grounds spelt out in the appeal memo. 4.The specific stand taken by appellant Insurance Companyis that, firstly, there was no rashness or negligence on the part of thedriver of the truck which was admittedly insured by them. Seconddefence was driver had no valid driving licence, which amounted tobreach of condition of policy. Thirdly, there to be no cogent andreliable evidence about injury or disability. For above reasons,learned counsel for Insurance Company urged to overturn the abovejudgment and allow the appeal.5.On the contrary, learned counsel for claimant justifiedand supported the findings and conclusion pointing out that, therewas utter negligence on the part of the driver of offending truck.That, the driver had valid driving licence and photocopy of the sameplaced on record. That, Insurance Company before the tribunal raisedno objection to the same, and therefore, learned tribunal committedno error in considering and relying the same. Learned counselpointed out that, the Insurance Company has not granted justcompensation as is required to be done by law, and thereby, hesought enhancement. FA-241-2017-4-6.After considering each of the side and on going throughthe impugned judgment, it transpires that, claim was set up on theabove premise that, on 12.05.2011, while claimant was takingshelter at the rear side of the truck which was stationary, the truckwas moved over the leg of injured causing her injury. FIR is lodged onthe same day. MLC is also placed on record to substantiate accidentalinjury. Case seems to have been set up that because of injury anddisability arising out of it, claimant who was rendering labour workhas been incapacitated from doing the same work and earning for herlivelihood. 7.From the written statement of Insurance Company,grounds raised herein are also taken up before the tribunal i.e. failureto prove negligence; non availability of valid driving licence with thetruck driver and thirdly no loss of earning as claimed. 8.Attention of this court is invited by learned counsel forappellant to the impugned judgment. It appears that, to substantiatethe claim, FIR, spot panchanama, statement of claimant and medicalpapers like Exhs.30 and 31 (Discharge card, Disability Certificateand Medical Bills) are placed record. It is evident from the judgmentand the evidence adduced on behalf of Insurance Company that there FA-241-2017-5-is no serious challenge to the above discussed documents. On thestrength of such documents, there is no hesitation to hold thatrashness and negligence as well as suffering injuries out of motorvehicle has been substantiated. 9.The sole ground raised in appeal, and which is muchemphasized, is the non-availability of driving licence of the driverand thereby there is breach of condition of policy, due to whichInsurance Company is sought to be absolved.10.Ownership of offending truck by opponent no.1 has notbeen disputed. As stated above, challenge to the claim is on theground that driver was not holding valid driving licence at the time ofaccident. Insurance Company is trying to get itself absolved forbreach of such condition. It is emerging from the papers that, drivinglicence (Exh.56) to which ‘no objection’ has been tendered by theclaimant, date of renewal of licence is given as 28.01.2008 and itseems to be directly renewed on 16.05.2011. Undisputedly, accidentin question is dated 12.05.2011. Therefore, before renewal itself andwhen licence was yet to be renewed, accident had taken place. Now, it is expected of Insurance Company to furtherdemonstrate that the owner of the truck was aware that the driver FA-241-2017-6-driving his truck, did not have a valid licence. Only when this isdemonstrated that insurance company would probably succeed and itwould be just for the Insurance Company to be absolved of theresponsibility. Here, as stated above, Insurance Company firstly hasnot examined R.T.O. authority. Nothing has been shown todemonstrate that owner was aware about currency of the licenceduring above period or on the date of which accident allegedly tookplace. Unless such burden is discharged, Insurance Company cannotevade the liability. Precisely, fundamental breach of policy ofinsurance has not been substantiated. For above reasons, mereraising ground about breach of policy is itself not sufficient as aboverequired burden has not been completely discharged by theinsurance company. Law to this extent is enunciated in the landmark cases ofNational Insurance Co. Ltd. v. Swaran Singh and Ors. reported in2004(3) SCC 297 and IFFCO Tokio General Insurance Co. Ltd. v.Geeta Devi and Others reported in 2023 SCC OnLine SC 1398, whichis rendered by the Hon’ble Apex Court recently that mere takingstand of non-availability of driving licence or breach of policy,without discharging the burden is of no avail to the InsuranceCompany. Here, it is noticed that, learned tribunal by the impugnedjudgment even directed Insurance Company to be entitled to pay the FA-241-2017-7-compensation and recover the same from opponent no.1 withoutfiling suit. Thus, interest of Insurance Company is otherwise alsoprotected. 11.As regards to enhancement of claim sought by claimant isconcerned, this court has appreciated the contents of judgment inparagraph 19, wherein calculations of entitlement of compensationare dealt and discussed. For want of proof of earnings, learnedtribunal has rightly considered notional income, i.e. in the backdropof nature of work allegedly rendered by claimant. Therefore, thiscourt does not find any infirmity in considering notional income asthe base for further computation. Paragraph 20 shows that medicalbills are considered and amount towards it is awarded. Even distinctamounts are granted under the head of pain and sufferings, loss ofincome during affected period, conveyance and special diet.Therefore, virtually each and every aspect for which claimant wasentitled, 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 bejust and proper in the given facts and circumstances of the case. FA-241-2017-8-13.Consequently no case being made out to interfere in thejudgment and award of the tribunal and there is no merits in thecase.14.The appeal stands dismissed. (ABHAY S. WAGHWASE, J.) Tandale