High Court
Facts
(1) fa-2498-2013.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADFIRST APPEAL NO. 2498 OF 2013WITHCIVIL APPLICATION NO. 10893 OF 2012 IN FA/2498/2013The Oriental Insurance Company Ltd.Sant Krupa Market, G.G. Road,Nanded...Appellant(Ori. Respondent No.3)Versus1.Sahebrao s/o Shivram Rapewad,Age 24 years, Occu. Labour,R/o. Morgaon, Tq. Himayatnagar,Dist. Nanded.2.Mariba s/o Shivram Rapewad,Age 22 years, Occu. Labour,R/o. As above.3.Madhav s/o Shivram Rapewad,Age 20 years, Occu. Labour,R/o. As above.4.Smt. Shabanabegum w/o Syed Arif,Age 27 years, Occu. Household.5.Mainmunnisabegum w/o Syed Abbas Patel,Age 62 years, Occu. Household.Respt. No.4 & 5 R/o. Mudhol Galli Bhokar, Tq. Bhokar, Dist. Nanded.)..Respondents (Orig. Respt. no.1 & 2)…Mr. Uday S. Malte, Advocate for Appellant.Mr. Amit Tendulkar h/f Mr. G. G. Kadam, Advocate forRespondent Nos.1 to 3.Mrs. M. R. Jamdhade, Advocate for Respondent Nos.5.WITHCIVIL APPLICATION NO. 11668 OF 2016 IN FA/2498/20131.Sahebrao s/o Shivram Rapewad,Age 24 years, Occu. Labour,R/o. Morgaon, Tq. Himayatnagar,Dist. Nanded.
Legal Reasoning
(3) fa-2498-2013.odtof the motor vehicle bearing registration no.MH-26-B-8313, whichwas proceeding towards Nanded from Dhanora. It was carryingthe passengers. The driver lost the control over the Jeep and itdashed against road side Babool tree. The occupants of thevehicle suffered severe injuries. One Rajnika lost her life on thespot. The incident was reported to police. Accordingly, an offencewas registered with Himayat Nagar Police Station against Jeepdriver.4. The appellant, who is insurer of the Jeep resisted theclaim alleging breach of terms and conditions of the policy. TheTribunal after considering the evidence on record allowed theclaim petition and passed award against the original respondents.5.Mr. Malte, learned Advocate appearing for theappellant/insurer vehemently contends that the vehicle inquestion was registered and insured under ‘Third Party’ policy.Although, carrying capacity of the vehicle is only 5+1, as many as13 passengers were carried in the Jeep at the time of accident.Tribunal accepted defence of the Insurance Company, however,passed an award in the nature of ‘Pay and Recovery’. He wouldsubmit that since vehicle is insured under third party policy,insurer ought to have been exonerated.6.The learned Advocate appearing for the claimantssupports the award contending that the Tribunal has passed wellreasoned order and do not call for interference in exercise ofappellate jurisdiction of this Court.7.Having considered submissions advanced, apparentlythere is no dispute as regards to the accident involving insuredJeep bearing registration no.MH-26-B-8313 and consequentialinjuries suffered by the occupants of the vehicle. The appellant (4) fa-2498-2013.odtraises objection to the award in the nature of ‘Pay and Recovery’contending that vehicle in question was insured under liabilityonly policy hence occupants were not covered. Further claimantshave failed to prove that driver was authorized to drive vehicle inquestion by valid driving license.8.Section 146 of the Motor Vehicle Act mandates thatevery vehicle shall be insured to cover the risk in terms of Section147 of the Motor Vehicle Act. Apparently, the owner of the vehiclehad obtained the third party policy in respect of vehicle. Thevehicle in question is registered as passenger vehicle. The vehicleis also having fitness certificate. The driver employed had badgefor Taxi. The material on record is indicative of the fact that thevehicle in question was registered and insured as commercialvehicle. Even contents of the FIR and pleadings in the claimpetition shows that it was black-yellow Taxi. In that view of thematter, apparently vehicle was used as Taxi and was authorizedto transport the passengers. Perusal of the written statementfiled on behalf of Insurance Company nowhere mentions that thevehicle in question was registered as private vehicle or it was notauthorized to carry passengers. In this background passengerscarried in vehicle falls within statuary umbrella of insurancecover u/s 147 of M.V. Act 1988. Hence contrary submissionsadvanced on behalf of appellant- insurer cannot be accepted.9.The second contention advanced on behalf of theappellant is that the vehicle was carrying excess passengersbeyond permitted capacity, as such, there is breach of conditionsof policy. It is well settled that merely carrying of excesspassengers does not extinguish the insurance contract. In case ofUnited India Insurance Co. Ltd. Vs. K. M. Poonam1 it is heldthat insurer cannot avoid liability to pay the compensation for1(2015) 15 SCC 297. (5) fa-2498-2013.odtsuch reason and even for the excess number of passengers thanpermitted limit, award in the nature of pay and recovery can bepassed. Apparently, in this case it is not pointed out that theclaim petitions more than permitted limit of the passenger havebeen filed or such awards are satisfied by the Insurance Company.On specific query to the learned Advocate appearing for theappellant, he could not pin point other claims, if raised arising outof said accident barring three claims which are subject matter ofgroup of appeals before this Court.10.So far as issue of driving license is concerned, theTribunal has categorically observed that the copy of drivinglicense is placed on record and same is indicative of the fact thatthe driver had valid authorization at the time of accident. Nocontrary evidence is brought on record. It is trite that once,prima facie, burden is discharged by the claimants or owner of thevehicle by producing requisite documents, it is for the insurer tobring on record necessary evidence in support of its allegationsregarding breach of condition of the policy. In the present case, nosuch evidence is recorded. In view of the aforesaid observations,there is no merit in the Appeal. Hence, Appeal stands dismissed. 11.If any amount is deposited by the appellant/insurer inthis Court in pursuance of the award passed by the Tribunal, it bedisbursed to the claimants.12.In view of dismissal of the Appeal, pending CivilApplications also stand disposed of.(S. G. CHAPALGAONKAR)JUDGEDevendra/February-2024
Arguments
(2) fa-2498-2013.odt2.Mariba s/o Shivram Rapewad,Age 22 years, Occu. Labour,R/o. As above.3.Madhav s/o Shivram Rapewad,Age 20 years, Occu. Labour,R/o. As above...Applicants(Ori. Claimants)Versus1.The Oriental Insurance Company Ltd.Sant Krupa Market, G.G. Road,Nanded...Ori. Appellant2.Smt. Shabanabegum w/o Syed Arif,Age 35 years, Occu. Household,R/o. Mudhol Galli, Bhokar,Tq. Bhokar, Dist. Nanded.3.Mainmunnisabegum w/o Syed Abbas Patel,Age 65 years, Occu. Household.R/o. As above...Respondents(Resp. Nos.2 & 3 Ori. Respondents.)…Mr. Amit Tendulkar h/f Mr. Gajanan G. Kadam, Advocate forApplicants.Mrs. M. R. Jamdhade, Advocate for Respondent No.5.Mr. U. S. Malte, Advocate for Respondent No.1. CORAM : S. G. CHAPALGAONKAR, J. DATED : 12th FEBRUARY, 2024.JUDGMENT:-1.The appellant/insurer approaches this Court underSection 173 of the Motor Vehicle Act, 1988 thereby assailingjudgment and award dated 16.01.2012 passed by the MotorAccident Claims Tribunal at Bhokar, Dist. Nanded in MACPNo.162/2010.2.The respondents/original claimants had approachedthe Tribunal under Section 166 of the Motor Vehicle Act seekingcompensation from original respondents. 3.In nutshell it is a case of the claimants that theaccident in question took place due to rash and negligent driving