Kalawatibai Vs. Oriental Insurance Co. Ltd. and Others - Court Judgment

1. The appeal is filed against the judgment and award of M.A.C.P. No.583 of 2006, delivered by M.A.C.T. Nanded. Both sides are heard.

2. The Claims Tribunal has exonerated the Insurance company by holding that a private jeep was used for carrying goods, as transport vehicle and there has been breach of condition of policy. Only the owner of the vehicle has challenged the decision, as she is made liable to pay the compensation and Insurance company is not directed to indemnify the owner.

3. It is the case of the claimants that deceased Vijay was working as driver with respondent No.1. The accident took place on 17.6.2006. It is contended that deceased was driving tempo trax jeep bearing No.MH-38-918 and on that day he was discharging the duties as driver of respondent No.1. The vehicle left the road and gave a dash to a road side tree. The claim was made under Section 163-A of Motor Vehicles Act 1988.

4. The Insurance Company took the defence that there was beach of condition of policy. It is contended that at the relevant time, respondent No.1 had given jeep on hire basis for carrying newspaper bundles, for transportation and so there has been breach of condition of policy.

5. Respondent No.1 had filed written statement and she contended that deceased was not third party and so no compensation can be awarded to the claimants. She claimed the indemnification from Insurance company.

6. The claimant No.1, widow of the deceased gave evidence. She has deposed that on the day of accident, deceased was carrying bundles of newspaper and the jeep was given on hire basis. The claimants relied on police papers, which include copy of F.I.R. This report was given by a son of owner. He informed to police that the vehicle was given on hire basis and at the relevant time they were carrying bundles of newspaper. He was present in the vehicle alongwith the deceased.

7. As against the aforesaid record and the substantive evidence of claimants, no evidence was given by the owner. Learned counsel for the owner submitted that in the spot panchnama, there was no mention of bundles of newspaper and so it cannot be inferred that jeep was being used for transporting the bundles of newspaper or it was given on hire basis. This submission is not at all acceptable. The claimants had given evidence of aforesaid nature and the report to police was given by son of the owner. The F.I.R. was exhibited and so it was necessary for the owner to give some evidence in rebuttal. As there was nothing in rebuttal, there was no other alternative before the Tribunal than to hold that jeep was being used as transport vehicle. Admittedly, the jeep was registered as private vehicle and insured as private vehicle (for carrying 9+1 persons). Thus, there was breach of condition of policy in view of provisions of section 149 of Motor Vehicles Act and it was proved.

8. Learned counsel for the appellant, owner has placed reliance on the cases reported as 2004 (3) All MR 271 (Bombay High Court) (Anila Rege vs. Guruprasad M. Rage and Ors.), AIR 1995 Bom. 160 (Kallappa Pundalik Reddi vs. Laxmibai Dattoba Vellarm and others), Laws (APH)-2002-8-13 ALD-2002-6-456 and 2006 (3) ALL MR 144 (Tulsabai Narayanrao Deshpande (deceased through L.Rs) vs. Sakharam Bhanu Chavan and ors). On the basis of observations made in the aforesaid reported cases, learned counsel for the appellant, owner submitted that burden of proof of breach of terms and conditions of policy was of Insurance company. There cannot be a dispute over this proposition. There was sufficient material to prove breach and that is already quoted. It was also submitted by the learned counsel for the appellant that in view of Section 149 of M.V. Act, it was necessary for the Insurance company first to pay compensation to the claimants and then it could have been allowed to recover from the owner, if there was breach of condition of policy. This contention could have been accepted provided that present proceeding was filed by the claimants for challenging the decision of the Tribunal. In view of these circumstances, this Court holds that interference is not possible. Giving decision in favour of the appellant will amount to give direction to the Insurance Company to identify the owner. Such directions cannot be given. In the result appeal is dismissed.

9. Civil application No.12521 of 2009 is disposed of.