Partly allowed

Sambhaji @ Shahaji Namdeo Paithanpagar v. Zumbarbai Dattu Sanap and Ors.

Bombay HC6 Dec 2012FA/398/2012

Case brief

AI extract

What is this about?

In a first appeal against a Motor Accident Claims Tribunal award, the High Court quashed the exonerance of the Insurance Company. The Court held that in the absence of evidence showing the deceased was a fare-paying passenger, contrary to the Tribunal, the insurance company is jointly liable with the vehicle owner.

What did the court decide?

The impugned judgment exonerating insurance company quashed; appellant and respondent number 7 jointly and severally liable to pay Rs. 5,14,000 with interest at 7.5%.

Sambhaji @ Shahaji Namdeo Paithanpagar Vs Zumbarbai Dattu Sanap and… — Insurance | Bombay HC (2012)

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1 F.A. 398.2012

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FARAD CONTINUATION SHEET No.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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FIRST APPEAL NO. 398 OF 2012

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Sambhaji @ Shahaji Namdeo Paithanpagar V/s Zumbarbai Dattu Sanap & Ors.

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Office Notes,Office	Court's or Judge's orders
Memoranda of
Coram,appearances,	................................
Court's orders or	CORAM : S.V.GANGAPURWALA, J.
directions and
Registrar's orders	DATE : 06/12/2012.

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Mr. V.M.Chate, Advocate for the Appellant. Mr. K.D.Pande & Mr. B.A. Dhengale, Advocates for the Resp. No. 7.

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PER COURT :

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The respondent Nos. 1 to 6 have filed Petition U/s 166 of the Motor Vehicle Act [ For short, ' M.V. Act ' ] for compensation on account of the death of one Dattu, who died in an accident. The Motor Accident Claims Tribunal,, Ahmednagar [ For short, ' the Tribunal ' ] partly allowed the said claim petition against the original respondent No. 1 i.e. present appellant. The Tribunal has exonerated the Insurance Company. Aggrieved thereby the owner of the vehicle has filed the present Appeal.

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2 F.A. 398.2012

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Mr. Chate, the learned counsel for the Appellant submits that the insurance policy in question is a package policy. In view of the Circulars issued by the Insurance Company from time to time, the liability of the Insurance Company is unlimited. Even according to the insurance policy, nine (9) passengers were also covered and additional premium was also paid. The learned counsel submits that deceased Dattu was not a fare paying passenger but was a gratuitous one. There is nothing on record to show that Dattu was fare paying passenger. Total evidence on record nowhere even suggest this fact. The claimant No. 1 had stepped into witness box and has specifically stated that the deceased did not get the bus, so the driver of the jeep gave him lift. There were two (2) other passengers sitting in the said jeep.

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According to the learned counsel, when the evidence on record did not suggest that Dattu was gratuitous passenger, then merely on the basis of the hypothesis and assumption, the Tribunal has arrived at erroneous conclusion that the deceased Dattu was a fare paying passenger. The Insurance Company has not led evidence nor the appellant had stated this fact. Even the claimants nowhere state the same. In absence of any evidence, the conclusion drawn by the Tribunal about Dattu being fair paying passenger is erroneous.

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3 F.A. 398.2012

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Mr. Pande and Mr. Dhengale, the learned counsel for the Insurance Company submits that it has been established on record that the deceased was a fare paying passenger. It was a clear breach of policy. The vehicle was private vehicle. The passengers were the fare paying passengers. In view of that, the Tribunal has rightly exonerated the Insurance Company. The owner of the vehicle has not stepped into witness box and so adverse inference has to be drawn. Because of the reason that Dattu was not a fair paying passenger, the owner of the vehicle has not stepped into witness box.

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With the assistance of the learned counsel, I have gone through the Judgment and the record and proceedings.

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The only issue in the present Appeal is whether the Insurance Company has been rightly exonerated by the Tribunal.

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The factum of the accident is not disputed. The deceased Dattu was travelling in the said Jeep is also not a disputed fact. The moot question is whether Dattu was a fare paying passenger. The Insurance Company has not led any evidence nor the owner of the vehicle has led any evidence. The witnesses who have come before the Court, have categorically stated that the deceased Dattu could not get the bus and as

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4 F.A. 398.2012

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such the jeep driver, who was acquainted, had given lift to him.

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There is no contra evidence on record. It can not be merely presumed that just because the owner has not led the evidence, deceased Dattu must be a fare paying passenger. There was no impediment for the original respondents to adduce evidence in that regard. In absence of any contra evidence, it can not be held that deceased Dattu was a fare paying passenger.

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The F.I.R. also does not state that deceased Dattu was a fare paying passenger.

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In absence of any evidence on record, it was erroneous on the part of the Tribunal to conclude that the deceased Dattu was a fare paying passenger.

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In light of the above, the respondent - Insurance Company would be jointly and severally liable to pay the compensation amount to the claimants along with the appellant.

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In that view of the matter, the impugned Judgment and Award to the extent of exonerating the Insurance Company is quashed and set aside and it is held that the appellant and the

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5 F.A. 398.2012

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respondent no. 7 Insurance Company are jointly and severally liable to pay an amount of ` 5,14,000/- [ Rupees Five Lacs Fourteen Thousand only ] to the claimants with the interest @ 7.5 %from the date of petition till the realization.

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The First Appeal is accordingly disposed of. No costs.

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[ S.V. GANGAPURWALA, J. ]

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KNP/F.A. 398.2012

Sambhaji @ Shahaji Namdeo Paithanpagar v. Zumbarbai Dattu Sanap and Ors.

Case brief

What is this about?

What did the court decide?

Sambhaji @ Shahaji Namdeo Paithanpagar v. Zumbarbai Dattu Sanap and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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Coram

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