High Court
Legal Reasoning
IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADFIRST APPEAL NO. 1187 OF 2018WITH CIVIL APPLICATION NO. 13486 OF 2018BJAJ ALLIANZ GENERAL GENERAL INSURANCE CO.LTDTHROUGH ITS AUTHORIZED SIGNATORY/BRANCH MANAGERVERSUSNIMBA ATMARAM PATIL AND ANOTHERMr. Mohit R. Deshmukh, Advocate for the appellantMr. R. P. Adgaonkar, Advocate h/f Mr. V. B. Patil, Advocate for respondentNos. 1 and 2CORAM: R. M. JOSHI, J.DATE: 13th FEBRUARY, 2024P.C. :-1.This First Appeal under Section 173 of Motor Vehicle Act isfiled by Insurer taking exception to the judgment and award dated 3rdMay, 2017 in M.A.C.P. No. 204 of 2012. 2.Parties are referred to as Claimants, Owner, Driver andInsurer for the sake of convenience.3.On 2nd February, 2012 at about 12.30 mid night Sagar, son ofclaimants was proceeding as pillion rider on motorcycle bearing No. MH-19-BE-7131 road by his friend Sonu alias Kalpesh Ramesh Choudhari.They were coming from Parola towards Erandol. At the spot of accidentdue to the negligence driving of the motorcycle by its rider, Sagar fellfa1187.18.odt1 of 7 down and sustained injuries to his head and died on the spot. Withoutintimating about accident the rider of the motorcycle fled away from thespot. Claimants have claimed compensation of Rs. 4 lakhs.4.Owner and rider of motorcycle did not file written statement.Whereas the Insurer filed written statement at Exhibit 20 denying thecontentions of the claimants with regard to the age, occupation, incomeand death of the deceased. It is specifically claimed that the accident asdid not occur due to the negligence on the part of the rider of themotorcycle. It is claimed that the deceased was lying near the speedbreaker and was given dash by unknown vehicle and it is a case of hitand run. There is also averment made with regard to the rider of themotorcycle not having valid and effective license and therefore, there isbreach of terms of insurance policy which renders Insurer not liable forthe payment of compensation.5.On behalf of the claimants Nimba Patil -claimant No.1 wasexamined at Exhibit 23. He placed reliance on the FIR (Exhibit 24),supplementary statement (Exhibit 25), spot panchanama (Exhibit 26),inquest panchanama (Exhibit 27), PM notes (Exhibit 28) to prove theallegation with regard to the negligence on the part of the rider of themotorcycle and death of deceased in the said accident. Reference is alsomade to form AA (Exhibit 30) and the copy of insurance policy (Exhibitfa1187.18.odt2 of 7
Legal Reasoning
29).6.The Insurer examined two witnesses i.e. Sachin Sanap(Exhibit 40) and Shrikant Khade (Exhibit 52). Insurer relied upon receipt(Exhibit 41), LMV Transport car license (Exhibit 42) and the statementsrecorded of the witnesses in the investigation (Exhibits 45 to 48).7.The learned Tribunal by impugned judgment and award hasdirected both owner and insurer to jointly and severally paycompensation of Rs. 9,35000/- along with interest at the rate of 9%. Theinsurer being aggrieved by the said judgment and award has preferredthis appeal.8.Learned counsel for the insurer submits that there isabsolutely no evidence on record to hold that the deceased has died inan accident arising from the use of motorcycle in question. It issubmission that there is no witness examined by the claimants in orderto prove the actual occurrence of the accident. It is his submission thaton the basis of the investigation papers it can be said that the deceasedwas ran over by unknown vehicle. Thus, according to him claimants havefailed to prove the factum of accident involving motorcycle in question.On the point of liability to pay compensation to the claimants it issubmitted that once the claimants failed to prove the involvement of thefa1187.18.odt3 of 7 said motorcycle, question of insurer being liable to pay compensationdoes not arise. Without prejudice to this submissions he urges that theinsurer had led evidence in order to show that the rider of the motorcycledid not have license to drive two wheeler and as such it is a fundamentalbreach of condition the policy as contemplated by Section 149(2) ofMotor Vehicle Act and hence the Insurer cannot be held liable for thepayment of compensation. To support his submissions, reliance is placedon following judgments.(i)Bajaj Allianz General Insurance Co. Ltd. Vs.Manisha w/o Lahu Kale and another in First Appeal No.2742 of 2015 dated 04/09/2018.(ii)Shriram Insurance Company Ltd., Vs. Vanita andOthers, 2019 SCC OnLine bom 2058 (2020) 2 TAC 922.9.Learned counsel for the claimants opposed the saidsubmission by claiming that since the deceased was third party, theirrespective of any breach of condition of policy the Insurer would beliable to pay the compensation to the claimants.10.There is no dispute about the fact that the deceased died inroad traffic accident. The question arises as to whether the claimantshave been able to prove that the deceased died in the accident involvingmotorcycle owned and driven by owner. Claimants have not witnessedthe occurrence of the accident. The accident in question has occurred at12.30 a.m. It is not more res integra that the claimants can placefa1187.18.odt4 of 7 reliance on police papers, to prove the factum of the accident andnegligence. Genuineness of investigation papers is not in dispute.Undisputedly the FIR was registered against the owner/ rider of themotorcycle. During the course of investigation statements of witnesseswere examined (Exhibits 45 to 48). These statements clearly show thatthe deceased was riding as pillion rider along with owner of motorcycleand he fell down from the motorcycle resulting in to occurrence of theaccident. There is nothing on record to indicate that quashment ofcharge-sheet against the rider of the motorcycle was sought at any time.Thus, this evidence is sufficient for the claimants to discharge initialburden on them to prove the occurrence of the accident as negligence ofthe rider of the motorcycle.11.The onus, therefore, shifts upon the owner and insurer toprove otherwise. Though the insurer has examined the InvestigatingOfficer but nothing was brought on record in order to show that thestatements of the witnesses who have not reliable and trustworthy. TheInsurer, therefore, has not succeeded to discharge the onus to prove thatthe accident has occurred on account of dash given by any unknownvehicle to the deceased.12.Therefore, no fault can be found with regard to the findingsrecorded by Tribunal, regarding factum of accident, death of deceasedfa1187.18.odt5 of 7 involving motorcycle in question and negligence of its sides. The Insurer,however, has examined witness from RTO in order to prove that the riderof the motorcycle was having license for driving light motor vehicle butthere is no license to drive motorcycle with gear. It was for the owner tolead evidence in order to rebut the same. Neither pleadings nor evidenceis there before the Tribunal on behalf of the owner/driver of themotorcycle. It is therefore, held that the Insurer has succeeded inproving the breach of condition of policy as the rider of the motorcyclewas not having valid and effective license to ride the said vehicle.13.The question arises as to whether the liability of the Insurercan be absorbed completely in payment of compensation once theInsurer succeeds to prove the breach of condition of policy. There cannotbe any dispute about the fact that the deceased was a third party. Hewas not responsible for the occurrence of the accident being pillion rider.Section 146 of the Motor Vehicle Act mandates coverage of risk of thirdparty. Even Section 149(1) of the said Act clearly shows that though it isopen for the Insurer to raise plea of the breach of condition of policy,however, any such defence would be available when the compensation ispayable to a third party. Conjoint reading of Sections 165 and 168 of theAct empowers the Tribunal to pass appropriate order of pay and recover.Claimant being of third party, Insurer is obliged to satisfy the award andfa1187.18.odt6 of 7
Decision
recover the same from the owner.14.Hence, Appeal is partly allowed. Insurer to pay compensationto the claimants and recover the same from the owner. Rest of judgmentand award to remain unchanged. Pending civil application standsdisposed of. (R. M. JOSHI, J.)sspfa1187.18.odt7 of 7