Allowed

Oriental Insu. Co. Ltd., Thr. Divisional Manager, Amravati Presently, Thr. Claims, T.P. Hub, Nagpur v. Sabulal S/O Kalma Kasdekar and Others

Bombay HC15 Sept 2021CAF/1001/2021

Case brief

AI extract

What is this about?

This appeal rejected the insurer's challenge to compensation awarded under the Motor Vehicle Act. The Court held that charging the driver in a criminal case did not prove policy breach or negligence, and the claimants successfully established an employer-employee relationship.

What did the court decide?

The appeal is dismissed and the compensation award of the Motor Accident Claims Tribunal stands affirmed.

Oriental Insu. Co. Ltd., Thr. Divisional Manager… — Motor Accident Claims | Bombay HC (2021)

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49 FA-1921-2019

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR.

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FIRST APPEAL NO.1921 OF 2019

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[The Oriental Insurance Company Ltd. ..Vrs.. Sabulal Kalma Kasdekar and Ors.]

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Ofce Notes, Ofce Memoranda of Coram, _______________________________________________________________________________________

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appearances, Court's orders of directions Court's or Judge's order and Registrar's orders.

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Shri. L. Limaye, Advocate for Appellant

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Ms. A. Sharma, Advocate h/f Shri. P. R. Agrawal, Advocate for Respondent Nos.1 and 2.

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CORAM : NITIN W. SAMBRE, J. DATE : 15th SEPTEMBER, 2021.

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The Respondents claim petition under Section 166 of the Motor Vehicle Act, 1988 came to be allowed vide impugned judgment dated 14.03.2018. As such, this Appeal by Insurance Company/Original Respondent No.3.

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The submissions of Shri. L. Limaye, learned Counsel for Appellant/Insurance Company are that the breach of policy could be inferred from the fact that the driver of the ofending vehicle was booked as an accused in Crime No.189 of 2011 punishable under Sections 279, 337 and 304 A of the Indian Penal Code. It is further claimed that almost 35 persons were traveling on a ofending goods vehicle for whom, no Insurance cover was extended. As such, liability ought not to have been fastened on the Appellant.

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Next submission is, Claimants/Respondents have failed to discharge their initial burden by demonstrating that they were working/employed as labour by the owner of the ofending vehicle.

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49 FA-1921-2019

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The learned Counsel for Respondent Nos.1 and 2 supports the judgment impugned based on the pleadings and the evidence brought on record. 5. It is not in dispute that the driver of the ofending vehicle was booked in Crime No.189 of 2011 for an ofence punishable under Sections 279, 337 and 304 A of the Indian Penal Code. 6. What can be inferred from the aforesaid fact is, the driver was only charged, but is not convicted for the said ofence and that being so, it cannot be inferred that the driver was negligent and he was not holding valid driving license. Admittedly, Appellant has not brought any evidence to discharge its burden, so as to prove that the driver of the ofending vehicle was not holding valid driving license. As such, the contentions about breach of policy on the issue of the driver not holding valid driving license, is at all not established by Appellant. That being so, the said contentions stand rejected.

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The Claimants contention that they were employed as labour was duly admitted by the owner of the vehicle. As such, the Claimants have discharged their initial burden about the relationship.

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In the aforesaid background, it was expected of Appellant to rebut the said evidence, which was initially discharged by Claimants by alleging that there was an employer employee relationship and the deceased/injured was working as labour with the owner of the vehicle insured. Apparently, Appellant has not discharged the said burden, the said issue has

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49 FA-1921-2019

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been rightly answered against Appellant. Non examination of the employer/owner of the vehicle, which was insured cannot be considered to the detriment of the Claimants. Particularly, when intersay, they have admitted the relationship and it was for Appellant to prove that the employer employee relationship as has been claimed, was not in existence.

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In the aforesaid background, award of compensation in my opinion appears to be just and proper. No case for interference is made out. The Appeal as such fails and same stands dismissed.

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CIVIL APPLICATION (F) NO.1001 OF 2021.

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The Application stands allowed and disposed of, in terms of prayer Clause therein.

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The withdrawal shall be in accordance with the conditions laid down in the impugned judgment delivered by the Member, Motor Accident Claims Tribunal.

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(NITIN W. SAMBRE, J.)

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TAMBE

Oriental Insu. Co. Ltd., Thr. Divisional Manager, Amravati Presently, Thr. Claims, T.P. Hub, Nagpur v. Sabulal S/O Kalma Kasdekar and Others

Case brief

What is this about?

What did the court decide?

Oriental Insu. Co. Ltd., Thr. Divisional Manager, Amravati Presently, Thr. Claims, T.P. Hub, Nagpur v. Sabulal S/O Kalma Kasdekar and Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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