Dismissed

The New India Assurance Co. Ltd. v. Shri Vinod Lalji Hariya and Ors.

Bombay HC16 Apr 2013FA/440/2013

Case brief

AI extract

What is this about?

The High Court dismissed the insurance company's appeal against an award. The court held that the insurer failed to prove the driver was under liquor influence because their evidence was merely hearsay and relied on an admission in the claimant's petition which was inadmissible. Consequently, the breach of policy defence was not established.

What did the court decide?

Appeal dismissed; the award is set aside and remains in favour of the claimants.

The New India Assurance Co. Ltd. Vs Shri Vinod Lalji Hariya and Ors. — Insurance | Bombay HC (2013)

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FA-ST-5175-13 JUDGMENT

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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FIRST APPEAL (STAMP) NO. 5175 OF 2013

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The Offi Bank	New India Assurance Co. Ltd. ce at New India Bhawan, Street, Fort, Mumbai 400001	] ] ]	..Appellants
	Versus
1.	Vinod Lalji Hariya Aged 46 years, Occ: Business R/at Sonal House, Room No. 206 2^ndfloor, Dhamankar Naka Bhiwandi, District Thane (through Power of Attorney Holder Shri Shantilal Lalji Hariya)	] ] ] ] ] ] ] ]
2.	Surendrasingh Mohansingh, Adult, Occ: Service,	] ]
	R/at. 7/130 Tagore Nagar, Vikhroli (East), Mumbai 400083	] ]
3.	Jogindar Kaur w/o. Naginasingh Adult, Occ: Business, R/at Hira Construction Thane Road, Dhamankar Naka, Bhiwandi, District : Thane	] ] ] ] ]	.. Respondents

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Mr. Milind More for Applicant / Appellant.

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CORAM : A. H. JOSHI, J. DATED : 16TH APRIL, 2013.

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JUDGMENT :

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1] Appeal is taken up for hearing.

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2] Insurance company has challenged the award only on the ground that the insurance company was not liable due to breach of policy by the insured, since the driver thereof

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FA-ST-5175-13 JUDGMENT

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was driving the offending vehicle while he was under the influence of liquor.

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3] The claim petition was opposed by the insurance company by filing the written statement by raising the said plea of breach of conditions of policy.

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4] The claimant relied on his own testimony. He was cross-examined. In his cross-examination this witness has admitted as under:

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“..... I have not gone through with the police papers produced in this case. It is true that the truck driver was found having consumed the liquor.”

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(quoted from examination of appellant no. 1 Vinod Lalji Haria – page 45 of paper book)

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5] The insurance company has filed the affidavit of examination-in-chief sworn by one Shri Babasaheb Sitaram Jadhav, Assistant Manager.

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6] In the affidavit of Shri Babasaheb Sitaram Jadhav Assistant Manager of appellant he has stated that:(a) He could not trace the vehicle owner inspite of efforts.

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(b) That the truck driver was under the

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FA-ST-5175-13 JUDGMENT

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influence of liquor and that therefore the insurance company was not liable to make the payment.

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7] During oral arguments learned Advocate for appellant has also relied upon the statement contained in the claim application wherein the claimant has stated that the truck driver was under the influence of liquor.

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8] After evaluation of evidence, it is seen that the statement of claimant that driver was under the influence of liquor contained in the claim petition is an admission about the fact of which witness cannot be privy nor it can be used as an admission against him.

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9] The claimant's statement that the driver was under the influence of liquor cannot be used to deny the claim, it being a statement of fact which he cannot know. It is also not shown that claimant personally knew or had occasion to know that the driver had consumed intoxicant in his presence.

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10] A question as to whether driver was under the influence of liquor at the given time could have been better proved by the insurance company by relying upon medical examination of said driver if it was conducted and

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FA-ST-5175-13 JUDGMENT

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based on an expert opinion in regard to the medical examination.

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11] Moreover the statement of insurance company's witness that the driver was under the influence of liquor cannot be regarded as a testimony of occular evidence. Said statement is sheer hearsay. The witness who was Assistant Manager, has stated that he has formed an opinion that the driver was drunk after going through the police papers.

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12] In this situation the defence of insurance company about breach of policy on the ground that the driver of the offending vehicle was under the influence of liquor is not at all proved.

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13] The entire claim subject matter of appeal is based on defence of breach of policy.

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14] Said defence of breach of policy is not duly proved.

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15] It is not surprising, rather it is shocking that the insurer exerts to prove its own defence on “hearsay”. This course of defence seems to be usual way in which claims are defended and appeals are filed, and are pursued by the insurance companies.

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FA-ST-5175-13 JUDGMENT

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16] Normally had the driver been arrested soon after the incident and a suspicion had arisen about his state of being drunken, the police would have ordinarily sent him for medical examination for alcoholic status. It is not explored by appellant, if any such exercise was done by police. Sole ground of defence is the infirm and weakness in the claimant's evidence.

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17] In fact if at all the insurer desired to make it sure that whatever defence it takes must be firm enough that it should not be ridiculed, the investigator appointed by the company ought to have carried out further investigation to lay hands on collateral evidence as regards the fact of driver being in a drunken state. Random and chance defences take away the credibility.

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18] In any event the grounds raised in this appeal do not rise upto being worthy of any strength warranting any interference whatsoever.

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19] Therefore Appeal is dismissed being devoid of merits.

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Chandka

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(A. H. JOSHI, J.)

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The New India Assurance Co. Ltd. v. Shri Vinod Lalji Hariya and Ors.

Case brief

What is this about?

What did the court decide?

The New India Assurance Co. Ltd. v. Shri Vinod Lalji Hariya and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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The New India Assurance Co. Ltd. Vs Shri Vinod Lalji Hariya and Ors.