Ltd Through it’s Divisional Manager, Aurangabad Divisional Office, Hazari Chembers, Station Road v. Archana

Judgment

-.This is an Appeal under Section 173 of the Motor VehiclesAct, 1988 (for short, ‘M.V. Act’) filed by the Insurance Company againstthe Judgment and Award dated 19.07.2011 passed by the learned MotorAccident Claims Tribunal, Parbhani (in short, ‘the learned Tribunal’) inMotor Accident Claim Petition No.270/2004, partly allowing the ClaimPetition filed by Respondent Nos.1 to 3 (hereinafter referred to as the‘Claimants’) under Section 163A of the M.V. Act. 2. The facts, in brief, giving rise to the present Appeal are as under:2.1. The Claimants filed the above referred Claim Petition contendingthat, they were the Widow, Son and the Mother, respectively of MahadevShivaji Nitnaware (hereinafter referred to as the ‘Deceased’), R/o.Mahan, Tal. Mahan, Dist. Akola. The Deceased was working as aMechanic at one establishment and earning Rs.3,000/- Per Month. On13.02.2004 Deceased was deputed by the Owner of MotorcycleNo.MH37-4738 (hereinafter referred to as the ‘Motorcycle;) to bringaccount from one person and accordingly when Deceased was drivingthe Motorcycle on Akola – Washim road and reached near JaldharaHotel, one buffalo came in front of the Motorcycle and the accident tookplace as Deceased lost his control. The accident was reported to theconcerned Police Station and Crime No.20/2004 came to be registered

3 under Sections 279, 304-A of the Indian Penal Code (hereinafterreferred to as the ‘I.P.C.’) against the Deceased. The Police conductedthe investigation. The said Motorcycle was insured with the Appellant /Insurance Company at the time of the accident and therefore, theMotorcycle Owner and Insurance Company were jointly and severallyliable to pay the compensation of Rs.4,17,500/- (Rs. Four LakhSeventeen Thousand Five Hundred).2.2.The Claim Petition was contested by the InsuranceCompany by filing Written-statement below Exh.13. They denied thecontentions of the Claimants and liability to pay the compensation. Thesaid Motorcycle was not validly covered by the Insurance Policy. No riskon the part of the Insurer commences, unless the premium is paid in fullin advance by the insured. It was submitted that the Claim Petition bedismissed.2.3.Respondent No.3 to the Claim Petition, which was theCredit Co-operative Society which advanced the loan to the Owner ofthe Motorcycle for purchasing the said Motorcycle, filed the Written-statement below Exh.53. They denied the Claim Petition. Theycontended that, though it was the responsibility of the Vehicle Owner toremove the Insurance Policy of the vehicle, as a good gesture by theCredit Co-operative Society removed the Insurance Policy for 18 vehicles 4 including the Motorcycle involved in the said accident and issued aCheque to the Agent of the Insurance Company on 09.02.2004 andasked him to remove the Insurance Policy. They denied theirresponsibility to pay the compensation.2.4.The learned Tribunal framed the Issues below Exh.18 asfollows:“1.Do the petitioners prove that the deceased Mahadev Shivaji Nitnaware died in vehicular accident? 2. Whether the risk of vehicle and driver is covered under the policy ?3.Whether the petitioners are entitled for compensation. If yes, to what extent and from whom ?4.Whether petitioners reside within jurisdiction of this Tribunal and their claim for compensation is tenable ?5.Whether respondent No.3 is liable for compensation claimed by petitioners ?”2.5.The Widow of Deceased examined herself as the WitnessNo.1 in support of the Claim Petition. The Police Papers pertaining to theInvestigation and copy of Insurance Policy of the said Motorcycle werebrought on record in her evidence. The Claimants examined WitnessNo.2, who was working as the Manager where Deceased was working,to prove the monthly income of Deceased and brought on record theCertificate showing the salary of Deceased.2.6.The Appellant – Insurance Company examined theirAdministrative Officer below Exh.63 in support of their contention that 5 the said Motorcycle was not covered by the Policy below Exh.65. Therelevant documents were brought on record in his evidence.2.7.The Credit Cooperative Society i.e. Respondent No.3, in theClaim Petition examined the Agent of the Appellant – InsuranceCompany below Exh.71 in support of their contention that Chequetowards the premium of Insurance Policy was given to the Agent. Theyfurther examined Witness No.2, who was working as the Manager in oneof their Branch in support of their contentions. Necessary documentswere brought on record in his evidence.2.8.On hearing both the sides and appreciating the evidenceavailable on record, the learned Tribunal passed the impugnedJudgment and Award.3.Heard both the sides.4.One of the contention advanced by the learned Advocate forthe Appellant is that the motor vehicular accident took place on13.02.2004 and the insurance cover of the motorcycle which met withan accident was insured from 14.02.2004 and it did not cover the dateof accident. Therefore, the Insurance Company was not liable toindemnify. To this, it is the contention of the learned Advocate for theClaimants that the Cheque towards insurance for the said Motorcyclewas issued by the concerned Cooperative Credit Society on 9.2.2004 and 6 mere issuance of the Insurance Policy from 14.02.2004, will not makethe insurance effective from 14.2.2004. It was not a fresh insuranceproposal. It was a renewal proposal of the Insurance Policy. TheMotorcycle was not inspected by the Appellant – Insurance Companyand this itself shows that the insurance cover continued and it wasrenewed by the Appellant – Insurance Company. There was difference inthe handwriting mentioned in the proposal date and commencementdate of the policy. 5.In J. Kalaivani and Others vs. K. Sivashankar and another(2007) 7 SCC 792, cited by the learned Advocate for the Appellant wasthe Appeal arising out of decision in the Claim Petition under the M. V.Act for compensation. The Insurance Company therein disowned theliability on the premise that, at the time of the accident, there was nopolicy of Insurance covering the vehicle concerned as the InsurancePolicy which was issued on 08.02.1995 was to expire in the midnight of07.02.1996. The accident took place at 04:30 a.m. on 8.02.1996 whichwas four and a half hours after the expiry of the erstwhile policy. On thesucceeding day, the Owner of the vehicle went to the InsuranceCompany and got another insurance policy issued in respect of the samevehicle, in which the Insurance Company had specifically indicated thetime of commencement of policy after 10 a.m. on 8.2.1996.’ Byconsidering the earlier decisions it was observed that, ‘the Court has to 7 look into the contract of insurance to discern whether any particulartime has been specified for commencement or expiry, as the case maybe, of the policy of Insurance’. In the facts of the said case, it wasobserved that ‘the Insurance Company cannot be held liable in respectof the Award granted by the Tribunal’. 6.In Cholamandalam MS Insurance Co. Ltd vs. NarendraVijayprakash Shukla & Others in First Appeal (St.) No.8126 of 2024,cited by the learned Advocate for the Claimants, decided by the SingleBench of this Court at the Principal Seat by Judgment and Order dated03.09.2024, it was observed that‘in the three Judgments relied upon by the learned Advocate for theClaimant the Courts have consistently held that when the premiumamount is collected at early stage and if the policy was issuedsubsequently and if the accident occurs in between these two dates,the Insurance Company cannot be exonerated.’ 7.In Laxman Vithu Majik and Ors vs. Anant Suryakant Wadkarand Ors, MANU/MH/1333/2017, cited by the learned Advocate for theClaimants, decided by the Bombay High Court at Goa Bench was theAppeal for compensation under the M.V. Act and one of the issueinvolved therein was ‘Whether learned Tribunal was in error to hold thatthere was no valid insurance on the date of the accident and to absolveRespondent No.4 therein finally of the liability to indemnify theregistered owner’. While considering the explanation to Section 64-VBof the Insurance Act, 1938, the Court observed that, ‘from reading of the 8 said Section it was apparent that the payment of the premium was alsocontemplated by Cheque and policy would begin to run no sooner suchdocument is received.’ It was observed that ‘Respondent No.4 thereinhad suppressed the receipt of premium on 14.06.2006 would not leaveit open to the insurer to canvass that the Appellant had not challengedthe order’. It is further observed that, ‘considering thus the effect of thepolicy qua the lack of the consent of the insured to make the policyeffective from the future date and the Appellant having shown that theinsured had effected the payment on 14.06.2006 at 12:04 hrs i.e. muchprior to the accident at 20.45 hrs.,’ and it was observed that, ‘thelearned Tribunal was in error to discharge Respondent No.4 from theproceedings’.8.Coming to the case at hand, the evidence of Witness No.1examined by the Appellant show that he was working as AdministrativeOfficer with the Jalna Branch of the Appellant. According to him, theproposal in respect of the said Motorcycle was received in their office on16.02.2004. The first insurance was not with the Appellant – InsuranceCompany. The Credit Co-operative Society requested them to issueInsurance Certificate w.e.f. 14.02.2004 and accordingly the insurancecover was effected by the Appellant from 14.2.2004. According to him,the Cheque of premium was received on 16.2.2004 along with proposalform at Exh.64 from the Credit Cooperative Society. The Insurance 9 Policy was brought on record at Exh.65. His cross-examination showsthat, Exh.65 was the comprehensive policy. He accepted that theinsurance cover note and certificate of insurance are two differentdocuments and further accepted that, the cover note can be issued byAgent of the Insurance Company. He accepted that the Agents areappointed by the Insurance Company in various villages. It has come inhis evidence that the policy of the Motorcycle was issued at the instanceof their agent Shri. S. K. Ladda i.e. Witness No.1, examined by CreditCo-operative Society. He accepted that the amount of premium isdeposited by the Agent with the Insurance Company. He accepted thatthe policy was issued after verifying the existence and availability of thevehicle, genuineness of the documents, engine and chasis number etc.He accepted that the insurance proposal in respect of other vehicles wasalso received from the Credit Co-operative Society and the premium inrespect of several vehicles was received by one Cheque. It has furthercome in his evidence that Mr. Ladda, who was the Agent of theirCompany, accepts the Cheque on behalf of the Company from thecustomers. He stated of his ignorance as to whether Mr. Ladda acceptedthe Cheque from the bank on 9.2.2004. Suggestions were given in thecross-examination that, the proposal was received without particularsi.e. spaces were blank, and subsequently spaces were filled by theInsurance Company so as to avoid the liability of the accident, it wasdeposed false that the Cheque was received on 16.02.2004. 10 9.The Credit Co-operative Society examined ShivprasadKachrulal Ladda (S. K. Ladda) as Witness No.1. His evidence shows thaton 09.02.2004, he was acting as the Agent of the Appellant and he knewthe Credit Cooperative Society. It has come in his evidence that he usedto purchase Insurance Policies for the vehicles purchased with thefinancial assistance of Credit Cooperative Society and insurance ofvehicle involved in the accident was removed by him. It has furthercome in his evidence that he had purchased the insurance policies for 18vehicles collectively which included the vehicle involved in the accident.It has come in his further evidence that, he received the Cheque forpurchasing the policies on 09.02.2004 and the Cheque at Exh.57 wasbrought on record in his evidence after it was shown to him and heidentified the same. It has further come in his evidence that, the Chequewas drawn on the account of Society and he issued acknowledgment onthe counter of the Cheque. He further deposed that, he was not asked topurchase the insurance policies with effect from 14.02.2004. He furtherdeposed that he received the proposal letter on 09.02.2004 under thesignature of Branch Manager of Credit Cooperative Society. It has comein his further evidence that, the proposal letter was in his handwriting,except printed portion and he mentioned the date 14.02.2004 to13.02.2005 in the presence of Manager of the Credit CooperativeSociety. Suggestion that he was directed to take insurance with effect 11 from 09.02.2004 was denied by him. In his cross-examination done onbehalf of the Insurance Company, it is reiterated that, one Cheque wasissued for insurance of various vehicles and shops and the list wasattached by him with the letter and for his own safety, he mentioned thedates. He did not remember as to whether the Cheque was sent by himthrough courier. It has further come that all the Insurance Policies weremade effective from 14.02.2004 to 13.02.2005.10.The Credit Co-operative Society examined its BranchManager of Malegaon Branch as Witness No.2 below Exh.78. Hisevidence shows that on 09.02.2004 he was working as the Manager inthe Credit Cooperative Society. He knew said Mr. S. K. Ladda. He hadan occasion to meet him on 09.02.2004 as he had come to the Office ofCredit Co-operative Society for purchase of Insurance Policy of somevehicles. His further evidence shows that, he purchased 18 insurancepolicies from the said Agent Mr. Ladda and issued the Cheque on09.02.2004 towards amount of premium in lump sum. It has furthercome in his evidence that, the insurance of the vehicle involved in theaccident in question was included in the lot of vehicles, for whichinsurance policies were purchased by him on 09.02.2004 and he askedMr. Ladda to purchase policies with effect from 09.02.2004. The accountextract showing payment of Cheque towards insurance premium isbrought on record at Exh.79. The Cheque amounting to Rs.22,813/- 12 (Rs.Twenty Two Thousand Eight Hundred Thirteen) came to be issuedand the balance amount in the account was Rs.13,19,889/- (Rs.Thirteen Lakh Nineteen Thousand Eight Hundred Eighty Nine). Hisfurther evidence show that, Exh.64 Proposal Form was shown to himand he deposed that, it bears his signature and it was issued by him on09.02.2004 and it was in the handwriting of the Agent of the InsuranceCompany. He deposed that, it was not written in his presence and dateswere not written in his presence. He deposed that, the dates arementioned by the Agent as per his will. He reiterated that, Agent wasnot told to purchase insurance policies effective from some future dateand the insurance in respect of all vehicles was to be purchased witheffect from 09.02.2004. In his cross-examination, he denied that, it wastheir practice to issue blank forms with signatures to the insuranceAgent for purchasing insurance policy.11.Evaluation of the above referred evidence clearly goes toestablish that, the insurance proposal form at Exh.64 and Cheque in thename of the Appellant were issued on 09.02.2004 by the Credit Co-operative Society for insurance of the vehicles which included themotorcycle involved in the accident. It is further established that, thesaid Proposal Form was received by the authorized Agent of theInsurance Company on 09.02.2004 itself. The suggestion is given in thecross-examination to the Witness No.2 of the Credit Cooperative Society 13 that, it was their practice to issue blank forms with signatures to theinsurance Agent for purchasing insurance policy, establishes that blankspaces in the Proposal Form were filled in by the Insurance Agent. Theevidence on record do not establish that, dates showing the period ofinsurance were either told by Credit Cooperative Society or it was filledby the Manager of Credit Co-operative Society. It is clearly establishedthat on 09.02.2004 the proposal for insurance of the motorcycleinvolved in the accident along with the Cheque of premium in the nameof Appellant were received by the authorized Agent of the Appellant. Itis nobodies case that Mr. S. K. Ladda, examined as Witness No.1 byCredit Co-operative Society was not the authorized Agent of theAppellant. Though the period of insurance of the said Motorcycle showsthat the insurance cover was from 14.02.2004 to 13.02.2005, thepremium towards insurance policy of the Motorcycle was made on09.02.2004 which was the date prior to the date of the accident i.e.13.02.2004. It is not established by the Appellant that, the insuranceperiod was as per the instructions of the Credit Co-operative Society. Thelearned Tribunal considered this aspect and rightly observed that, ‘It isthe date on which the premium is paid, is relevant for the purpose offinding out when contract of Insurance came in existence. If thepremium is received on 09.02.2004, Insurance Cover Note ought tohave been issued by the Insurance Company with effect from09.02.2004. Merely because a future date is mentioned on the policy, 14 Insurance Company cannot be allowed to deny its liability to paycompensation to the petitioners. From the evidence available on record,I have no hesitation in holding that contract of insurance came inexistence on the date on which Insurance company has received thepremium for policy from Respondent No. 3 – Society through its agent.’As seen above, it has come in the evidence of witness examined by theAppellant that, the cover note can be issued by the Agent of theInsurance Company.12.In the above referred Judgment in Laxman Vithu Majik(supra) the explanation of Section 64-VB of the Insurance Act, 1938which pertains to the Premium in respect of the insurance is considered,which reads as under:“64VB. No risk to be assumed unless premium is received inadvance.—(1) …..……(2) …..…...Explanation. —Where the premium is tendered by postalmoney order or cheque sent by post, the risk may beassumed on the date on which the money order is booked orthe cheque is posted, as the case may be.”12.1.Further, Sub-section 4 of the said Section 64-VB of the saidInsurance Act reads as under : “(4) Where an insurance agent collects a premium on apolicy of insurance on behalf of an insurer, he shall depositwith, or dispatch by post to, the insurer, the premium socollected in full without deduction of his commission within 15 twenty-four hours of the collection excluding bank andpostal holidays.”13.From the evidence available on record, I find no merit inthe submissions of the learned Advocate for the Appellant that, theMotorcycle involved in the accident was not insured on the date of theaccident. The said finding of the learned Tribunal is based on theevidence available on record and is upheld. The contention of thelearned Advocate for the Appellant that the observations in paragraphno.11 of the impugned Judgment in respect of appreciating the evidenceof Mr. Ladda - the Insurance Agent that, ‘he has specifically stated thathe was not instructed by Respondent No.3 to purchase the policies witheffect from 14.02.2004’, was perverse, has no merits, as the saidobservations are based on the evidence of Insurance Agent as seen frompara no. 1 of his evidence.14.The another contention of the learned Advocate for theAppellant is that, Deceased had borrowed the Motorcycle from hisOwner for his own purpose and so, Deceased steps into the shoes of theVehicle Owner and therefore, he cannot be the third party and was thepermissive Driver or borrower of the Motorcycle and, therefore, theAppellant cannot be saddled with the liability. On the other hand, it isthe contention of learned Advocate for the Claimants and Vehicle Ownerthat, the Insurance Policy of the Motorcycle was the Package / 16 Comprehensive Policy and so, even if the Deceased steps into shoes ofthe Motorcycle Owner, the Appellant cannot be absolved of its liability.He submitted that Deceased used said Motorcycle on the instructions ofhis Employer and, therefore, the contention that the Insurance Companywill not be liable, is not sustainable.15.In United India Insurance Co. Ltd. vs. Anubai GopichandThakare and others, 2008 (1) MhLJ 73 cited by the learned Advocate forthe Appellant, was the Appeal under the M.V. Act, wherein theexpression ‘third party’ under the M.V. Act is considered. It wasobserved that, ‘the said expression needs to be determined in each casewith reference to the terms of the Insurance Policy. If the risk of aperson is covered under the contract of insurance, then he / she wouldbe the third party regarding whom the insurance cover can be used andthe insurer will be liable to indemnify such a person or his legalRepresentatives / dependents. However, the person, who is notcovered under the terms of the Insurance Policy cannot be treated as‘third party’ within the meaning of provisions of Section 147 and Section149 of the M.V. Act.’16.In Oriental Insurance Co. Ltd vs. Jhuma Saha (Smt.) andothers (2007) 9 SCC 263 cited by the learned Advocate for theAppellant, was the Appeal against the decisions under the Claim Petition 17 under Section 166 of the M. V. Act. The question involved was that, ‘theDeceased himself being negligent, the Claim Petition under Section 166of the M.V. Act would be maintainable’. In the facts of the said case, itwas observed that, ‘the additional premium was not paid in respect ofthe entire risk of death or bodily injury of the owner of the vehicle. Ifthat be so, Section 147 (b) of the M. V. Act which in no uncertain termscovers a risk of a third party only would be attracted in the case’’.17.In Oriental Insurance Company Limited vs. Rajni Devi andOthers, (2008) 5 SCC 736 cited by the learned Advocate for theAppellant, was the Appeal from the proceedings in the Applicationunder Section 163-A of the M.V. Act. It is observed that, ‘it is now a wellsettled principle of law that in a case where third party is involved, theliability of the Insurance Company would be unlimited. Where,however, compensation is claimed for the death of the owner or anotherpassenger of the vehicle, the contract of Insurance being governed bythe contract qua contract, the claim of the Insurance Company woulddepend upon the terms thereof.’ It was further observed that, ‘liabilityunder Section 163-A of the MV Act is on the owner of the Vehicle as aperson cannot be both, a Claimant as also a recipient.’18.In Ningamma and Another vs. United India InsuranceCompany Limited, (2009) 13 SCC 710 cited by the learned Advocate for 18 the Appellant, was the Appeal from the decision under the M. V. Act. Inthat case, Deceased borrowed the Motorcycle from his real owner forgoing to his native place. The Deceased while traveling on theMotorcycle, met with an accident. The Claim Petition under Section163-A of the M.V. Act, 1988 was filed. The observations made inparagraph no.12 of the said Judgment shows that, the question that fellfor consideration was, whether the legal representatives of a person,who was driving a motor vehicle, after borrowing it from the real ownermeets with an accident without involving any other vehicle, would beentitled to compensation under Section 163-A of the M.V. Act or underany other provision (s) of law and also whether the insurer who issuedthe insurance policy would be bound to indemnify the Deceased or hisLegal Representative?. On considering the provisions of Section 163-Aof the M.V. Act and on appreciating the facts in that case, it wasobserved that, ‘the Deceased was not owner of the motorbike inquestion and he borrowed the motorbike from its real owner and,therefore, the Deceased cannot be held to be an employee of the ownerof the motorbike although he was authorized to drive the said vehicle byits owner and, therefore, he would step into the shoes of the Owner ofthe motorbike’. It was further observed that, ‘Deceased would step intothe shoes of the owner of the vehicle’’. 19 19.In Ramkhiladi and Another vs. United India InsuranceCompany and Another, (2020) 2 SCC 550 cited by the learned Advocatefor the Appellant, was the Appeal from the proceedings under the M. V.Act. The claim was for accidental death under Section 163-A of theM.V. Act only against the Owner of the Motorcycle and its InsuranceCompany. One of the questions for consideration was that, ‘theDeceased being in the shoes of the Owner of the Vehicle driven byhimself, whether the Insurance Company of the vehicle driven by theDeceased himself would be liable to pay the compensation underSection 163-A of the Act? and the whether the Deceased not being athird party to the vehicle, being in the shoes of the owner can maintainthe Claim under Section 163-A of the M.V. Act from the Owner of saidvehicle?’. It was observed that, ‘it is true that in a claim under Section163-A of the Act, there is no need for the Claimants to plead or establishthe negligence and / or that the death in respect of which the ClaimPetition was sought to be established was due to wrongful act, neglector default of the owner of the vehicle concerned. It is also true that theClaim Petition under Section 163-A of the M.V. Act is based on theprinciple of no fault liability. However, at the same time, the Deceasedhas to be a third party and cannot maintain a claim under Section 163-Aof the M. V. Act against the Owner and Insurer of the Vehicle which isborrowed by him as he will be in the shoes of the Owner and he cannotmaintain a claim under Section 163-A of the M.V. Act against the Owner 20 and Insurer of the vehicle. It was further observed that ‘in the presentcase, the parties are governed by the contract of insurance and underthe contract of insurance liability of the insurance company would bequa third Party only. In the present case, as observed hereinabove, theDeceased cannot be said to be a third party with respect to the insuredvehicle’. It is further observed that, ‘there cannot be any dispute thatthe liability of the Insurance Company would be as per the terms andconditions of the contract of Insurance’.20.In Yashpal Luthra & Anr vs. United India Insurance Co. Ltd& Anr, 2010 STPL 3282 Delhi, cited by the learned Advocate for theClaimants, one of the issue involved therein was, ‘whether under thecomprehensive / package policy, the Insurance Company was liable tocompensate for the death or Injury of the pillion rider on the twowheeler or the occupants in a private car’. It was observed that, ‘it isclear that the comprehensive / package policy of the two wheeler coversa pillion rider and comprehensive / package policy of a private carcovers the occupants and where the vehicle is covered under thecomprehensive / package policy, there is no need for Motor AccidentClaims Tribunal to go into the question whether the Insurance Companyis liable to compensate for the death or Injury of the pillion rider ontwo-wheeler or the occupants in a private car’’. 21 21. Coming to the case at hand, in paragraph no.2 of the impugnedJudgment which sets out the facts of the case, it is observed that, theDeceased was deputed by Respondent No.1 i.e. Owner of Vehicle, tobring certain amount from Sohel Shaikh, who was resident of Washim,it is stated that, ‘when Deceased had reached in front of Jaldhara Hotel,a buffalo suddenly appeared in front of the vehicle and Deceased lost hiscontrol over the vehicle. He died on the spot’. Further, in paragraphNo.17 of the impugned Judgment, it is observed that, ‘the Deceased wasdeputed by the Owner for his own purpose and the Deceased was,therefore, acting as Agent of the Owner and in view of this fact, itcannot be said that the Deceased stands in the shoes of the Owner’. It isfurther observed that ‘distinction is slight, however, very materialbecause a person who borrows the vehicle, borrows the risk involved inuse of the vehicle along with the vehicle. However, when somebody isdirected to perform some job, he is deputed for performing that workonly and not to bear the consequential risk or liability in using suchvehicle and therefore insurance company cannot be allowed to escapeits liability of paying compensation to the Petitioners’. The saidobservation made by the learned Tribunal that, ‘the Deceased wasdeputed by the Owner for his own purpose and he was acting as theAgent of the Owner’, finds no support from the pleadings and theevidence available on record. Minute scrutiny of the Claim Petitionshows that, though in the original Claim Petition it is written in 22 handwriting in Paragraph No.14A that ‘the Petitioners husband wasdeputed by Respondent No.1 i.e. owner of the vehicle to bring theaccount from Shoyab Shaikh, R/o. Washim’, in the Amended Petitionthere is no avernment in that regard. Further, the evidence Affidavit ofClaimant No.1 i.e. Widow of Deceased, nowhere shows that, the Ownerof the Vehicle had deputed Deceased for the work of Vehicle Owner. Inthe cross-examination done on behalf of Credit Cooperative Society, theWidow of Deceased deposed that, she knew as to whom the vehicle wasbelonging and the vehicle was standing in the name of one Pratap andDeceased left the house by saying that he was proceeding to Washim forattending party on account of birthday of his friend and he would bereturning home late in the night. Admittedly, the Deceased was notworking with or for the Motorcycle Owner. It is clear from the evidenceof Witness No.2 - Bhikaji Sudamrao Patil examined by the Claimantsthat, Deceased was working as a Head Mechanic in one Ram SalesServices, Washim. In view of the clear evidence available on record, it ismore than clear that Deceased borrowed the Motorcycle from his Owneri.e. Respondent No.4 in the Appeal / Respondent No.1 in the ClaimPetition for his own use.22.The another contention of the learned Advocate for theAppellant is that, Deceased was not holding the Driving Licence at thetime of accident. The learned Advocate for the Claimants dispute thesaid contention. 23 23.The Record nowhere shows that the driving licence ofDeceased was brought on record by the Appellant. There is alsonowhere the case of the Claimants as seen from the Claim Petition andthe evidence Affidavit of the Widow of Deceased that, Deceased washolding the valid and effective driving licence to drive the Motorcycle.On the contrary, in the cross-examination done by the Credit Co-operative Society it has come on record that her Husband did notpossess valid and effective driving licence. From this, it is establishedthat, Deceased was not holding the valid and effective driving licence todrive the Motorcycle. As regards the Insurance Policy of the saidMotorcycle is concerned, it has clearly come in the evidence of WitnessNo.1 examined by the Appellant that, the policy below Exh.65 was theComprehensive Policy. The complete policy papers are not brought onrecord by any of the parties. The said Exh.65 is the Certificate ofInsurance. The clause in the said Exh.65 under the caption ‘persons orclasses of Persons entitled to drive’ speaks that ‘any person includinginsured provided that a person driving holds an effective driving licenceat the time of the accident and …..’. One of the pleadings in theWritten-statement filed by the Appellant was that, the InsuranceCompany was not liable to pay any compensation unless and until it isproved that, the person on the wheels was having a valid and effectivedriving licence to drive such vehicle and vehicle was roadworthy to ply. 24 This shows that there was breach of terms and conditions of theInsurance Policy of the Motorcycle.24.Considering the other aspects, there is no serious dispute inrespect of monthly income of Deceased at the rate of Rs.3,000/- (Rs.Three Thousand) per month which is accepted by the learned Tribunal.It is needless to state that the Claim Petition being under Section 163-Aof the M.V. Act, the Claimants were not duty bound to prove the aspectof negligence. There is no dispute in respect of computation of the totalcompensation awarded by the learned Tribunal to the Claimants asagainst the Appellant and the Vehicle Owner i.e. Respondent No.4 in theAppeal and Respondent No.1 in the Claim Petition.25.In light of the above factual aspects and the evidenceavailable on record, the Appellant cannot be held jointly and severallyliable to pay the compensation to the Claimants. Their being clearbreach of the terms and conditions of the Insurance Policy, the Appellantis entitled to be absolved from payment of liability and it is theMotorcycle Owner i.e. Respondent No.4 in the Appeal and RespondentNo.1 in the Claim Petition, who shall be liable to pay the compensationto the Claimants awarded by the learned Tribunal. However,considering that, the Insurance Policy was comprehensive in nature, theAppellant shall pay the compensation as computed by the learned 25 Tribunal along with Interest, to the Claimants and thereafter it would beat liberty to recover the same from the Motorcycle Owner i.e.Respondent No.4 in the Appeal /Respondent No.1 in the Claim Petition.Hence, the following order:ORDER (i)The Appeal is partly allowed with no order as to costs.(ii)The impugned Judgment and Award is modified to the followingextent :(a) The Motorcycle Owner i.e. Respondent No. 4 in the Appeal / Respondent No. 1 in the Claim Petition shall be liable to paythe compensation to the Claimants, computed by the learned Tribunal. (b) The Appellant – Insurance Company shall pay the amount of compensation to the Claimants as directed by the learned Tribunaland thereafter, it would be at liberty to recover the same from the Motorcycle Owner i.e. Respondent No.4 in the Appeal / Respondent No.1 in the Claim Petition, in accordance with law. (iii) The Claimants are at liberty to withdraw the amount under the Award deposited by the Appellant – Insurance Company with interest accrued thereon. The excess amount, if any, be refunded to the Appellant – Insurance Company. (iv)The Record and Proceedings be sent back to the learned Tribunal.( NEERAJ P. DHOTE, J. )GGP