Dismissed

Che United India Insurance Co. Lts. v. Shri Subhash @ Bapurao Vithal Pawar and Ors.

Bombay HC1 Dec 2009FA/482/1997

Case brief

AI extract

What is this about?

The High Court of Bombay dismissed an appeal challenging a Motor Accident Claims Tribunal award. Upholding the Tribunal's finding, the Court held that the insurer failed to prove the driver's lack of license definitively, thus not establishing breach of policy terms.

What did the court decide?

Appeal dismissed; amounts deposited by appellant to be transferred to Tribunal.

Che United India Insurance Co. Lts. Vs Shri Subhash @… — Motor Accident Claims | Bombay HC (2009)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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FIRST APPEAL NO.482 OF 1997

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United India Insurance Co Ltd.

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.. Appellant

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versus

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Subhash @ Bapurao Vithal Pawar & Ors.

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.. Respondents

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Mr.A.B.Gatne for the appellant. Mr.V.B.Rajure for the 1^st to 3^rd respondents.

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CORAM : A.S.OKA, J. DATE : 1^st December 2009.

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JUDGMENT:

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. The submissions of the learned counsel appearing for the appellant were heard on the earlier date. I have also heard the learned counsel appearing for respondent Nos.1 to 3.

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The challenge in this appeal under section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as the said Act) is to the judgment and award dated 30^th June 1984 passed by the learned Member of the Motor Accident Claims Tribunal. The claim petition filed by the 1^st to 3^rd respondents under section 166 of the said Act was allowed under the impugned judgment and award. The compensation has been granted to 1^st to 3^rd respondents.

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The accident occurred on 8^th December 1989 on Vita-Khanapur road. One Rukhminibai was the wife of the 1^st respondent and mother of the 3^rd and 2^nd respondents who was working in agricultural land of the family. At 11.00 a.m on that day she was returning home by Vita-Khanapur road with bundle of washed clothes on her head. At the same time, she was holding 2^nd respondent on the left hand. According to the case of the 1^st to 3^rd respondents, the 4^th respondent who was driving motor cycle owned by the 5^th respondent came in a very high speed and gave a dash to the said Rukhminibai. She fell down and sustained severe injuries. She succumbed to the injuries in the night. The appellant is the insurer of the motorcycle. A written statement was filed by the appellant. The allegations made in the claim petition were denied. It was contended that the deceased Rukhminibai could have avoided accident had she taken minimum care. It was contended that as the 4^th respondent was not holding a valid licence to drive the vehicle concerned on the date of the accident, the 5^th respondent insured has committed a breach of the terms and conditions of the policy.

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The learned Member of the Tribunal held the appellant liable. The learned Member of the Tribunal held that the appellant has not proved the defence of breach of terms and conditions of the policy. The Tribunal found that age of the deceased at the time of death was 25 years. The dependency of the 1^st respondent-husband was taken at Rs.100/- per month and multiplier of 5 was applied for. As far as dependency of 2^nd and 3^rd respondents is concerned, the same was taken at Rs.100/- and multiplier of

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16 was applied. The 1^st respondent was granted compensation of Rs.5,000/for mental shock and suffering and the 2^nd and 3^rd respondents were granted sum of Rs.10,000/- each on the said count.

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The learned counsel appearing for the appellant submitted that the learned Member of the Tribunal has completely ignored that the evidence on record shows that the 2^nd respondent who was alongwith the deceased abruptly left her and the deceased ran after the child and therefore there was no opportunity for the 4^th respondent to avoid the accident. He submitted that the appellant discharged the burden by examining a clerk from Regional Transport Office to prove that the 1^st respondent was not holding a licence. He submitted that the certificate at Exhibit 59 issued by the Regional Transport Office could not have been discarded. He, therefore, submitted that the finding of the Tribunal that the appellant is liable is perverse. The learned counsel appearing for the 1^st to 3^rd respondents supported the impugned judgment and award.

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I have given careful consideration to the submissions. Perusal of the record shows that a leave under section 170 of the said Act was not granted to the appellant and therefore the case of the appellant will have to be considered only on the question of breach of the terms and conditions of the policy. Perusal of the record shows that the 1^st respondent examined himself. The second witness examined by the 1^st to 3^rd respondents is one Narayan. He was examined to prove the negligence. On the other hand the

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appellant examined one Gangaram Shitole who was working as a junior clerk at Regional Transport Office, Sangli. He deposed that after service of summons he had checked registers maintained regarding issuance of driving licence from the year 1978 till 8^th December 1989. He states that perusal of the registers showed that during the period from 1978 to 8^th December 1989 a driving licence has not been issued to the 4^th respondent (driver of the motorcycle). It is true that the said witness was not crossexamined by the 4^th respondent who was personally present. However, in response to the cross-examination made by the advocate for 1^st to 3^rd respondents, the witness stated that the 4^th respondent can get driving licence from any other Regional Transport Office provided he has a place of residence there. He admitted that he had not brought with him the register of driving licences. He denied the correctness of the suggestion that the certificate at Exhibit 59 was issued without verifying the record. He stated that there was nothing with him to show that the certificate was issued on verifying record.

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The learned counsel appearing for the appellant invited my attention to the copy of the charge-sheet at Exhibit 47 which contains allegation that the driver was not holding a licence. He submitted that nothing prevented the 4^th respondent to enter the witness box and to prove that he was holding a valid licence. He invited my attention to order dated 4^th May 1994 passed by the learned Member of the Tribunal in which learned Member has noted that the 4^th respondent declined to enter the witness box to lead evidence.

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The submission is that the appellant discharged the burden by examining a clerk from Regional Transport Office and no effort was made by the 4^th respondent to rebut the said evidence.

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A strong reliance has been placed by the appellant on the evidence of the junior clerk working in Regional Transport Office and the certificate at Exhibit 59. The said witness Gangaram Shitole deposed that after receiving summons, he checked licence register from 1978 to 8^th December 1989 and did not find entry of licence being issued to 4^th respondent. It must be stated here that the certificate at Exhibit 59 is signed by the Deputy Regional Transport Officer of Sangli who was not examined before the Court. Although the certificate records that during the period from 1978 to 8^th December 1989, the office of the Deputy Regional Transport Officer had not issued licence to the 4^th respondent, it is pertinent to note that the author of certificate was not examined by the appellant. The appellant examined the said Gangaram Shitole who claims to have perused the registers. The original registers were not produced before the Court. Even assuming that it was sufficient for the appellant to prove that the licence was not issued by the Regional Transport Office at Sangli, the original registers ought to have been produced for the perusal of the Tribunal. The originals could have been immediately returned by taking entry thereof in the record or by taking xerox copies thereof on record. The witness examined by the appellant claims to

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have himself verified from the registers but the certificate at Exhibit 59 is issued by another officer who is not examined. Moreover, the said witness

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stated that the 4th respondent can get driving licence from any other Regiona Transport Office provided he has a place of residence there. Conside ing these aspects, it is not possible to accept the submission of the learned counsel appearing for the appellants that the appellant insurer has dischar ed the burden of proving the breach of terms and conditions of the policy. Only if the appellants had discharged the burden, the failure of the driver o step into witness box would have become relevant. Hence, the finding of fact recorded by learned Member of the Tribunal regarding failure of the ppellant to prove the breach of terms and conditions of the policy appears to be correct and no interference is called for with the said finding.

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Though strictly at the instance of the appellant this Court cannot go into question of quantum, it must be noted that the age of the deceased was 25 years and the Tribunal has applied multiplier of only 16. The multiplicand is taken at the minimum. In the circumstances, there is no merit in the appeal and the same is accordingly dismissed with no orders as to costs. The amount, if any, deposited by the appellant in this Court shall be transferred to the concerned Tribunal. The concerned Tribunal will pass appropriate order recording disbursement/withdrawal of the said amount after hearing the parties.

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(A.S.OKA,J)

Che United India Insurance Co. Lts. v. Shri Subhash @ Bapurao Vithal Pawar and Ors.

Case brief

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Che United India Insurance Co. Lts. v. Shri Subhash @ Bapurao Vithal Pawar and Ors.

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