Bombay High Court
Iffco Tokio General Insurance Company ... vs Shri.Krishnakant Vijay Bamane on 18 August, 2021
Author: Nitin W. Sambre
Bench: Nitin W. Sambre
FA(ST)-23921-2017.doc
BDP-SPS-TAC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BHARAT
DASHARATH
PANDIT
CIVIL APPELLATE JURISDICTION
Digitally signed by
BHARAT
DASHARATH
PANDIT
Date: 2021.08.25
FIRST APPEAL (ST) NO. 23921 OF 2017
10:38:55 +0530
WITH
CIVIL APPLICATION NO. 3058 OF 2017
(FOR STAY)
IN
FIRST APPEAL (ST) NO. 23921 OF 2017
WITH
CIVIL APPLICATION NO. 3057 OF 2017
(FOR CONDONATION OF DELAY)
IN
FIRST APPEAL (ST) NO. 23921 OF 2017
IFFCO Tokio General Insurance
Company Limited .... Appellant.
Vs.
Krishnakant Vijay Bamane .... Respondent.
WITH
CIVIL APPLICATION NO. 383/2020
(FOR WITHDRAWAL OF AMOUNT)
IN
FIRST APPEAL (ST) NO. 23921 OF 2017
Krishnakant Vijay Bamane .... Applicant.
In the matter between
IFFCO Tokio General Insurance
Company ..... Appellant.
V/s
Krishnakant Vijay Bamane .... Respondent.
1/5
FA(ST)-23921-2017.doc
WITH
FIRST APPEAL (ST) NO. 23968 OF 2017
WITH
CIVIL APPLICATION NO. 3056 OF 2017
IN
FIRST APPEAL (ST) NO. 23968 OF 2017
WITH
CIVIL APPLICATION NO. 3053 OF 2017
IN
FIRST APPEAL (ST) NO. 23968 OF 2017
IFFCO Tokio General Insurance
Company Limited .... Appellant.
V/s.
Jayshree Vijay Bamane & Ors. ..... Respondents.
WITH
CIVIL APPLICATION NO.382 OF 2020
(FOR WITHDRAWAL OF AMOUNT)
IN
FIRST APPEAL (ST) NO. 23968 OF 2017
Smt. Jayshree Vijay Bamane & Ors. ..... Applicants.
In the matter between.
IFFCO Tokio General Insurance
Company Limited .... Appellant.
V/s.
Smt. Jayshree Vijay Bamane & Ors. ..... Respondents.
----
Mr. Nitesh V. Bhutekar for the Appellant in both above First Appeals
and for Applicants in Civil Applications taken out by the Appellant in
the above First Appeals.
2/5
FA(ST)-23921-2017.doc
Mr. Naveen B. Khaire for original Respondents in both the above First
Appeals and for the Applicants in Civil Application No.382 of 2020 in
FA(ST) No.23968 of 20176 and in Civil Application No.383 of 2020
in First Appeal (ST) No.23921 of 2017.
----
CORAM: NITIN W. SAMBRE, J.
DATE: AUGUST 18, 2021 P.C.:-
1] For the reasons stated in Civil Application No. 3053 of 2017 taken out by the Appellant/Insurance Company in First Appeal (St) No. 23968 of 2017 and in Civil Application No. 3057 of 2017 in First Appeal (St) No.23921 of 2017, delay in filing both the above appeals stands condoned.
2] In an accident occurred on 2nd July 2011, deceased Vijay, owner of Alto Car, lost his life, resulting into his legal heirs lodging claim for compensation. Alongwith deceased Vijay, his wife and son were co- passengers who suffered injuries and they were also awarded compensation. As such, these appeals by Insurance Company. 3] The point which is canvassed for determination by this Court is, in the absence of driving license of deceased Vijay on record, whether 3/5 FA(ST)-23921-2017.doc Tribunal was justified in allowing the claim, particularly when it can be inferred that there was a breach of policy and/or in view of deceased Vijay was driving the vehicle without valid driving license, can the issue of negligence be inferred.
4] So as to substantiate the aforesaid claim, though Appellant/Insurance Company has examined an employee from the RTO Office, however nothing concrete could be extracted from him so as to establish or infer that deceased Vijay was not holding valid driving license. Testimony of this witness cannot be accepted to infer that Appellant has discharged its burden of establishing breach of policy condition.
5] The claimants have examined wife of deceased Vijay. However, Appellant has neither cross-examined her on the point of absence of driving license nor issued any notice for production of documents i.e. driving license.
6] In the aforesaid backdrop, it is difficult to infer that Appellant has 4/5 FA(ST)-23921-2017.doc established a case for breach of policy conditions or negligence on the part of deceased Vijay in driving Alto Car for want of valid driving license.
7] In the aforesaid backdrop, in my opinion, both these Appeals lack merit and are accordingly dismissed.
8] As a consequence of dismissal of both these Appeals, Applications taken out therein by the Appellant for interim relief stand disposed of. 9] Applications moved by the claimants for withdrawal of the amount in the aforesaid background of dismissal of Appeals of the Insurance Company, need to be allowed.
10] Let the entire amount of compensation be relegated to the Claims Tribunal forthwith, so that Tribunal shall deal with the prayer of the claimants for withdrawal of the amount in accordance with the award delivered.
( NITIN W. SAMBRE, J. ) 5/5