Shri Anil Tukarram Patil Vs Vishnu Tukaram Shinde and Ors.

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 CIVIL APPELLATE JURISDICTION

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 FIRST APPEAL NO.965 OF 1992

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 Shri Anil Tukaram Patil, )
 Age: 38 years, Agriculturist, )
 R/o.Murgundi, Taluka Athani, )
 District Belgaum, Karnataka State. )...Appellant

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 Versus

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 1. Vishnu Tukaram Shinde (Patil), )
 Adult, Occ:Agriculturist, )

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 2. Sau.Sonabai Vishnu Shinde (Patil), )
 Occ: Household, )
 Both R/o.Budhgaon, Taluka Miraj, )
 District Sangli )

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 3. The Canara Bank, Branch at Athani, )
 District Belgaum, Karnataka State )

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 4. The United India Insurance Company )
 Limited, Branch Nipani, )
 District Belgaum, Karnataka State. )..Respondents

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 ----------

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 Shri Tejpal S. Ingale for the Appellant.

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 Shri Raju Yamgar i/by Nitin Pradhan and Ms S.D.Khot
 for the Respondent Nos.1 and 2.

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 Shri S.R.Singh for the Respondent No.4.

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CORAM : ABHAY S. OKA, J.

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DATE : JANUARY 18, 2007.

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JUDGMENT:

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 1. By this First Appeal exception has been taken

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 to Judgment and Award dated 13th May, 1991 passed by
 the learned Member of the Motor Accident Claims
 Tribunal at Sangli in a Claim Petition filed by the

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 ... 2 ...

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 first and second Respondents.

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 2. The case of the first and second Respondents
 is that their only son Divakar aged about seven years
 died in a motor accident on 28th May, 1987 at about
 07.00 a.m in an accident involving a tractor and
 trolley of the Appellant. The Appellant had brought
 his tractor alongwith his trolley to the land of first
 Respondent’s cousin Ramchandra Ganpati Patil. The
 Appellant loaded the trolley with manure in the said
 land and he was proceeding towards the land of
 Ramchandra Patil. The Appellant found that there was
 a water canal and at that time the water was released
 through the canal. As it was not possible to take
 tractor and trolley further as the land near the canal
 had become damp, according to the case of the first
 and second Respondents, the Appellant halted the
 tractor for a while and suddenly started it and took
 it in reverse without looking on the rear side to find
 out whether there was any one present. Thus, a dash
 was given to Dinkar, the son of the first and second
 Respondents and he fell down on the ground and he was
 run over by the rear wheel of the trolley. He died on
 the spot. The case of the Appellant was that there
 was no negligence on his part. His case in the
 written statement is that the land by the side of the

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 canal was ascending. He halted the truck and while he
 was thinking as to which way he should adopt, the
 tractor and trolley slided behind. He noticed that
 the boy was run over by the trolley only after he
 heard some persons shouting. His contention is that
 he was acquitted in prosecution lodged against him.

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 3. The tractor and trolley was admittedly insured
 with the fourth Respondent. The defence of the fourth
 Respondent was that there was breach of terms and
 conditions of the policy in as much as per the permit
 granted to use the tractor, the same could have been
 used within the State of Karnataka and there was no
 permit granted to use the vehicle in Maharashtra. The
 contention was that the Appellant committed breach of
 the terms and conditions of the permit and that is how
 he has committed breach of the policy conditions. It
 was also submitted that the policy did not cover the
 risk arising out of use of tractor for hire.

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 4. The learned Member of the Tribunal held that
 the accident occurred due to negligence on the part of
 the Appellant. The learned Member held that the
 permit granted to the Appellant was to use the tractor
 and trailer in the State of Karnataka and there was no
 permit granted to use the same in the State of

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 Maharashtra. It was held that thus the Appellant has
 committed breach of terms and conditions of the
 policy. It was also held that at the relevant time
 the tractor was being used for transporting manure of
 Ramchandra Patil. The learned Member held that the
 first and second Respondents were entitled to
 compensation of Rs.50,000/- with interest at the rate
 of 12% per annum.

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 5. The learned Advocate for the Appellant
 submitted that there was no evidence on record to show
 any negligence on the part of the Appellant. He
 submitted that there was no deliberate breach of the
 conditions of the policy established against the
 Appellant by the fourth Respondent Insurance Company.
 He submitted that negligence on the part of the
 Appellant in observing the terms and conditions of the
 policy ought to have been established by the fourth
 Respondent. He submitted that therefore, the
 Insurance Company could not have been exonerated. He
 placed reliance on a consent award made in M.A.C
 Application No.84 of 1986 which is sought to be
 produced by filing Civil Application No.2129 of 2006.
 The said Civil Application is filed seeking production
 of the award by way of additional evidence. His
 submission is that in case of the same tractor and

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 trailer an accident took place in the State of
 Maharashtra. The Claim Petition No.84 of 1986 arose
 out of the said accident. His submission is that the
 fourth Respondent accepted its liability and paid
 compensation and infact a consent award was passed.
 He, therefore, submitted that the fourth Respondent
 was precluded from contending that as per terms and
 conditions of the policy, the tractor and trailer
 could not have been used by the Appellant in the State
 of Maharashtra. The learned Advocate for the
 Appellant placed reliance on the decision of the Apex
 court in the case of B.V.Nagaraju Vs. Oriental
Insurance Company Ltd. [1996(4) Supreme Court Cases
Page 647].

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 6. The learned Advocate appearing for the fourth

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 Respondent submitted that admittedly there was a
 breach of the terms and conditions of the policy on
 the part of the appellant and therefore, the fourth
 Respondent had discharged its burden. He placed
 reliance on the decision of the Apex Court in the case
 of National Insurance Company Limited Vs. Challa
Bharathamma and others [(2004) 8 Supreme Court Cases
Page 517]. The learned Advocate for the first and
 second Respondents supported the impugned Judgment and
 Award.

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 7. I have considered the submissions made by the
 Advocates appearing for the parties. The policy of
 insurance is produced at Exhibit 41. The policy
 contains a clause under the heading "Limitation as to
 use". The said clause provides that the use of the
 tractor and trailer was for agriculture and to carry
 own goods.

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 8. It will be necessary to refer to the evidence
 of the Appellant in the examination-in-chief. He
 stated that the tractor was brought to Dudgaon for
 agricultural work of the first and second Respondents
 and he himself was driving the tractor. Thus, in
 examination-in-chief itself he admitted that the
 tractor and trailer was brought not for his personal
 use but for the benefit of the first and second
 Respondents. In cross-examination he admitted that he
 had not obtained permission from Government of
 Maharashtra for running the tractor in this State. He
 also admitted that tractor was meant for his own
 agricultural use and on the date of the accident the
 tractor was used for transporting manure of Ramchandra
 Patil. Infact, his version is that at the relevant
 time, manure of Ramchandra Patil was already loaded in
 the trailer. Though he denied that he had let out the

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 tractor to Ramchandra Patil, he did not examine the
 said Ramchandra Patil. In cross-examination he
 admitted that he was not on enmical terms with
 Ramchandra Patil. The cross-examination shows that
 the Appellant himself was aware that the tractor was
 meant for his own agricultural use and on the relevant
 date, the tractor was being used for transporting the
 manure of Ramchandra Patil. There is a clear
 admission that he was not holding a permit to use the
 tractor and trailer in the State of Maharashtra.
 Thus, it is obvious that admittedly there is a breach
 of terms and conditions of the policy on the part of
 the Appellant. This is not a case where breach was
 committed without the knowledge of the Appellant in as
 much as he himself brought the tractor and trailer

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 within the limits of State of Maharashtra and he
 himself stated before the court that at that time he
 was transporting the manure owned by the said
 Ramchandra.

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 9. The learned Advocate for the Appellant relied
 upon the decision of the Apex Court in the case of
 B.V.Nagaraju (supra). The question before the Apex
 Court was whether the alleged breach of carrying human
 beings in goods vehicle more than the number permitted
 in terms of the insurance policy is such fundamental a

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 breach so as to afford ground to the insurer to avoid
 liability altogether. The Apex Court considered its
 earlier decision in the case of Skandia Insurance
Company Limited Vs. Kokilaben Chandravan and Others
[(1987) 2 Supreme Court Cases Page 654]. Apart from
 the fact that the issue which arose for consideration
 before the Apex Court is different, the view taken by
 the Apex Court in the case of Skandia Insurance
 Company (supra) was considered by the larger bench of
 the Apex Court in the case of National Insurance
 Comapny Ltd. Vs. Swaransingh and Others [(2004) 3
 Supreme Court Cases Page 297]. The view taken by the
 larger bench is that the insurer has to prove that
 insured was guilty of negligence and failed to
 exercise reasonable care in the matter of fulfilling
 the policy conditions. In the present case, the
 Appellant himself admitted that he was aware about the
 condition of using the vehicle for own agricultural
 purpose and he was also aware that he had not obtained
 a permit from the State of Maharashtra.

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 10. In my considered view the learned Member of
 the Tribunal was right in holding that breach of
 policy conditions on the part of the Appellant-Insured
 was established. Infact, the same is established on
 the basis of evidence of the Appellant himself.

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 11. So far as negligence is concerned, the

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 Appellant has stepped into witness box and has deposed
 in examination-in-chief that he had stopped the
 tractor and trailer after noticing the dampness in the
 land as a result of release of water through the
 canal. In examination-in-chief he stated that while
 he was inspecting the road, the tractor automatically
 moved behind and the boy came under the wheel of the

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 trolley who died on the spot. In

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 examination-in-chief, he stated that he never took the
 tractor in reverse gear. In cross-examination, he
 admitted that his tractor was having good hand brake
 and foot brake. He admitted that while he was sitting
 in the driver’s seat, the tractor moved back. It is
 not the case of the Appellant that he had applied the
 hand brake. Any reasonable and prudent driver in his
 place would have applied hand brake. However, that
 case is not made out by the Appellant. When the
 tractor started moving back, he was very much sitting
 in the driver’s seat. Thus, there is a failure on the

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 part of the Appellant to take care and that is the
 reason why a finding of negligence has been recorded
 by the Tribunal against the Appellant. So far as
 quantum is concerned, the deceased was the only son of
 the Respondents. At the time of death, his age was

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 seven years. Therefore, quantum of Rs.50,000/- cannot
 be said to be on the higher side and it is just and
 proper compensation.

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 12. Reliance placed by the Advocate for the
 Appellant on the compromise entered into by the fourth
 Respondent in a claim involving the same tractor and
 trolley will not help the Appellant. The compromise
 which is annexed to the Civil Application for
 additional evidence shows that the same was arrived at
 before Lok Adalat. It is not clear whether in the
 said case a defence was taken by the fourth Respondent
 that the tractor and trolley was being used for
 benefit of a stranger. The said compromise cannot
 help the Appellant for fastening the liability against
 the fourth Respondent in this case. As a matter of
 law, the Appellant will have to establish the
 liability of the fourth Respondent.

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 13. Considering the aforesaid aspects, I find that
 no case is made out for interference.

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 14. Hence, I pass the following order:

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 (i) The Appeal is dismissed with no orders as to
 costs.

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 (ii) Time of three months is granted to the
 Appellant to pay the balance amount as per the

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 Award.

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JUDGE

Shri Anil Tukarram Patil v. Vishnu Tukaram Shinde and Ors.

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Shri Anil Tukarram Patil v. Vishnu Tukaram Shinde and Ors.

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