Bombay High Court
Sbi General Insurance Co. Ltd. vs Smt. Anagha Avinash Salkar on 8 July, 2025
Author: Shivkumar Dige
Bench: Shivkumar Dige
2025:BHC-AS:30518
50-FA1816-2019 JUDGMENT.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 1816 OF 2019
SBI General Insurance Co. Ltd. ]
101, 1st Floor, Krishna Baug, A Wing, New ]
Maniklal Est, Above Bank of Baroda, ]
S. N. Mehta Marg, ]
Ghatkopar (W), Mumbai 400086 ]
.... Appellant
Digitally signed
by SHANTANU
SHANTANU SHANKARSA
Orig. Insurer
SHANKARSA DHUDUM
DHUDUM Date:
2025.07.23
10:42:35 +0530 Versus
1. Anagha Avinash Salkar ]
Aged 48 years presently, Widow of deceased ]
2. Akansha Avinash Salkar ]
Aged 22 years presently, Daughter of ]
deceased, ]
3. Atharva Avinash Salkar ]
Aged 15 years presently, Minor son of the ]
deceased, Resp. No.3 being minor through ]
mother natural guardian Resp. No.1. ]
4. Ganpat Ramchandra Salkar ]
Aged 89 years presently, father of the ]
deceased. ]
5. Ratnamala Ganpat Salkar ]
(Deleted vide order dated 19/01/2018 ]
below Exh. 9 before Tribunal) ]
6. Sarita Ganpat Salkar ]
Aged 51 years presently, Sister of deceased, ]
All r/at 004, Mona Apartment, ]
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Near Parekh Nagar, Vayshet Pada No.1, ]
Kurar Village, Malad (E), Mumbai - 400097. ]
7. Ambu Govindan Boidu ] As per Reg.
Aged adult, Occ: Not known, ] (Jud.- II)
r/o. Room No.09, Shanmiullah Chawl, ] Court's order
Vasai Phata, Vasai (E), Thane - 401208. ] dated
06/09/2024,
, first appeal
stand
dismissed for
Resp. No.7.
.... Respondents
-----
Mr. Devendranath S. Joshi, Advocate for the Appellant.
Ms. Varsha Chavan, Advocate for Respondent Nos.1 to 4 & 6.
-----
CORAM : SHIVKUMAR DIGE, J.
DATE : 8th JULY, 2025.
JUDGMENT. :
1. The issues involved in this appeal are pay and recover
order passed by the Motor Accident Claims Tribunal, Mumbai (for
short, "the Tribunal"), and the compensation amount received by the
Claimants under the Group Accident Insurance Policy.
2. It is contention of learned counsel for the Appellant -
Insurance Company that, it has been proved before the Tribunal that
driver of offending vehicle was not holding effective and valid
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driving license at the time of accident and was holding fake driving
license. In spite of that, the Tribunal has passed pay and recovery
order, which is erroneous. The Tribunal ought to have exonerated
the insurance company from paying liability. Learned counsel further
submitted that the Claimants have received compensation under
Group Accident Insurance Policy and amount received under Group
Accident Insurance Policy is not deducted, but the Tribunal has not
considered this fact and has granted compensation to the Claimants.
Hence, requested to allow the appeal.
3. It is contention of learned counsel for the Respondents
/Claimants that it is settled principle of law that, in case if driver was
not holding effective and valid driving license at the time of
accident, as a contractual liability the insurance company has to pay
the compensation and recover from the owner of offending vehicle.
The order passed by the Tribunal is proper. Learned counsel further
submitted that the Appellant - Insurance company did not lead any
evidence to prove that the deceased had contributed the premium of
Group Accident Insurance Policy or not.
4. I have heard both learned counsel, perused judgment and
order passed by the Tribunal. In respect of pay and recover order, it
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is contention of learned counsel for the Appellant that, at the time of
accident, the driver of offending vehicle was holding fake driving
license. While dealing with this issue, the Tribunal has observed that,
the witness examined by the Appellant, admitted that, as per the
avoidance clause specified in the insurance policy, the insurance
company can be directed to pay the compensation to the Claimants
with liberty to recover the same from the owner of the offending
vehicle and reliance is placed on the judgment of Hon'ble Apex Court
in Lal Singh Marabi vs. National Insurance Co. Ltd. and anothers
2017 ACJ 1362 (S.C.) and Pappu and other Vinod Kumar Lamba and
Anr. 2018 SCJ 690 (S.C.). The Tribunal has held that the Appellant
shall pay the compensation first and recover it from the owner of the
vehicle. I do not find infirmity in it. In my view, it is settled principle
of law that if there is breach of terms and conditions of insurance
policy, the insurance company is liable to pay and recover it from the
owner of the offending vehicle.
5. In respect of receival of compensation under Group
Accident Insurance Policy, no suggestion was given to the Claimants'
witness by the learned counsel for the Appellant about contribution
of the premium in Group Accident Insurance Policy. The Appellant
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has not proved before the Tribunal, whether there was contribution
of the deceased with the insurance policy or not.
6. Learned counsel for the Appellant submitted that salary
does not reflect any contribution towards the Group Accident
Insurance Policy.
7. In my view, no evidence was led by the Appellant -
Insurance Company before the Tribunal, nor the witness was cross
examined on this point. It is settled law that if any party takes plea it
has be proved by the cogent evidence without leading evidence, the
issue raised cannot be considered.
8. It is contention of learned counsel for the Appellant that
perks included in the salary should have been deducted. In my view,
perks cannot be deducted from the salary account, as they form an
integral part of salary. Considering above reasons, the appeal is
devoid of merit, and I pass following order :
ORDER
i. The Appeal is dismissed.
ii. The Claimants are permitted to withdraw
deposited amount along with accrued interest thereon.
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50-FA1816-2019 JUDGMENT.doc iii. The statutory amount be transmitted to the Tribunal along with accrued interest thereon. The parties are at liberty to withdraw it, as per Rules. iv. Record and Proceedings be sent back to the Tribunal.
9. In view of the aforesaid terms, the appeal stands dismissed and disposed off.
10. All pending applications, if any, also stand disposed off.
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