Bombay High Court
Iffco Tokio General Insurance Co. Ltd. ... vs Smt. Durgabai Wd/O Pritam Bhagat And ... on 10 August, 2018
Author: Swapna Joshi
Bench: Swapna Joshi
FA 436.18.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
FIRST APPEAL NO.436 OF 2018
IFFCO Tokio General Insurance Company
Limited, Corporate office, 4th and 5th Floor,
"IFFCO Tower", Plot No.3, Sector 29,
Gurgaon, Haryana-122 001,
Branch Office at Sharda Building,
First Floor, Above ICICI Bank,
Station Road, Jalaram Chauk,
Bhandara, Tahsil and District-Bhandara
(M.S.) through its Branch Manager. .. APPELLANT
VERSUS
1] Smt. Durgabai wd/o Pritam Bhagat,
Aged about 30 years,
Occupation-Household.
2] Master Nikhil s/o Pritam Bhagat,
Aged about 08 years, Occ. Nil.
3] Master Aryan s/o Pritam Bhagat,
Aged about 07 years, Occ. Nil.
Nos.2 and 3 are minor represented
through their natural guardian mother
Petitioner no.1.
4] Smt. Devkabai wd/o Tukaram Bhagat,
Aged about 68 years,
Occupation-Household,
All R/o. Nimba, Tahsil-Salekasa,
District-Gondia (M.S.).
5] Shri Girwarlal s/o Nathulal Uprade,
Aged about 43 years,
Occupation-Cultivator,
R/o. Nimba, Tahsil-Salekasa,
District-Gondia (M.S.).
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FA 436.18.odt 2
6] Shri Yograj s/o Bhivram Shahare,
Aged about 36 years,
Occupation-Driver,
R/o. Rondha, Tahsil-Salekasa,
District-Gondia (M.S.). .. RESPONDENTS
..........
Shri A.J. Pophaly, Advocate for Appellant,
Shri A.Z. Jibhakate, Advocate for Respondent Nos.1 to 4,
Shri O.L. Gupta, Advocate for Respondent Nos.5 and 6.
..........
CORAM : MRS. SWAPNA JOSHI, J.
RESERVED ON : 30.07.2018
PRONOUNCED ON : 10.08.2018
ORAL JUDGMENT
1] Admit. Heard the matter finally with the consent of the learned counsel for the parties.
2] The judgment and award passed by the learned Member, Motor Accident Claims Tribunal, Gondia in Claim Petition No.28/2014 dated 07.11.2016 is challenged in the present appeal by the insurance company which was respondent no.1 in the said petition. By the said judgment, the tribunal held respondent nos.1 and 2 i.e. the owner and driver of the vehicle jointly and severally liable to pay the compensation amount of Rs.7,16,000/- along with interest at the rate of 7% per annum from the date of petition till its realization.
3] It is the case of the respondents-claimants that one Pritam Bhagat was a skilled labour, who was working on a tractor bearing registration no. ::: Uploaded on - 20/08/2018 ::: Downloaded on - 21/08/2018 23:47:40 ::: FA 436.18.odt 3 MH-35/G-6154. He was on duty and was coming from village Ambatola to village Nimba on 5.2.2014 at about 21.30 hours. The said tractor was loaded with paddy crop. Respondent no.6-original respondent no.3 was driving a tractor in a rash and negligent manner, therefore, the tractor turned turtle near Darekasa Ghat and Pritam died in the said accident.
4] The offence was registered by the Salekasa Police Station against respondent no.6 driver for the offence punishable under sections 279, 337, 304-A of the Indian Penal Code. The spot panchanama Exh.23 and inquest panchanama Exh.24 was conducted and the dead body was sent for postmortem to Rural Hospital at Salekasa. The postmortem report Exh.25 reveals the cause of death due to injury to vital organ (lungs). The respondents-claimants claimed the compensation to the tune of Rs.13,56,000/- under various heads but restricted the compensation to the tune of Rs.5,00,000/-.
5] The appellant-insurance company herein resisted the claim of the respondents-claimants by filing a written statement. The insurance company denied their liability and occurrence of accident, however, they did not deny the insurance of the offending vehicle. The appellant-insurance company entered into the witness box and produced the policy of the offending vehicle (Exh.43). It is the contention of the appellant that there was a breach of policy. The sitting capacity of the offending vehicle was of one person and the person who was ::: Uploaded on - 20/08/2018 ::: Downloaded on - 21/08/2018 23:47:40 ::: FA 436.18.odt 4 sitting on the mudguard of the offending vehicle and therefore the appellant is not liable to pay the compensation.
6] The learned tribunal has framed the issues. After conducting the evidence and hearing both the sides, the learned tribunal has delivered the judgment as aforesaid.
7] The learned counsel for the appellant-insurance company vociferously argued that the learned tribunal has committed an error by relying upon the cover note of the policy which was not a original document wherein the risk of one plus one person was covered. It was contended that the said cover note was forged one and actual policy showed that only risk of one person was covered. It was stated that the learned tribunal has failed to consider that it was the duty of the owner of the offending vehicle to produce the original policy, however, the said policy was not produced by him which would have thrown light on the aspect, whether the contents in the cover note were correct or not. According to the learned counsel for the appellant the cover note was tampered and the learned tribunal should not have placed reliance upon the said forged documents. The learned counsel for the appellant further contended that the first information report reveals that the deceased was sitting on the mudguard of the offending tractor and he fell down therefrom, as a result of rash and negligent driving by the driver of the tractor. According to him, the risk of the deceased was not covered under the terms of ::: Uploaded on - 20/08/2018 ::: Downloaded on - 21/08/2018 23:47:40 ::: FA 436.18.odt 5 insurance policy and he cannot be termed as a third party within the meaning of provisions of Sections 147 r/w 149 of the Motor Vehicles Act and the insurer cannot be held liable for the compensation awarded by the learned tribunal. 8] As against this, the learned counsel for the respondents-claimants vehemently argued that the cover note as well as the policy was not disputed by the witness who was examined by the appellant-insurance company, hence there is no hurdle in relying upon the cover note which shows that the risk of one plus one person was covered under the policy. The learned counsel contended that although the policy showed that the risk of only one person was covered, however, the cover note indicates that the risk of one plus one person was covered. It was submitted that in the absence of any evidence with regard to the tampering of the said document of the cover note, it can be construed that the risk of the deceased was also covered under the policy and hence the claimants being the relatives of the deceased are entitled for the compensation. 9] On considering the rival contentions of both the sides, the only point for determination is, "whether the appellant-insurance company would be liable to pay the compensation to the respondents-claimants". The first information report shows that as the driver was driving the tractor in a rash and negligent manner, the tractor turned turtle and the deceased, who was sitting on the tractor, was crushed in between the tractor and trolley, so also the other four persons, who were sitting along with the deceased in the tractor, were also ::: Uploaded on - 20/08/2018 ::: Downloaded on - 21/08/2018 23:47:40 ::: FA 436.18.odt 6 injured in the said accident. The spot panchanama Exh.23 shows that the tractor was loaded with gunny bags of paddy crop and as the tractor was speedily driven by the driver of the tractor, the tractor turned turtle and Pritam Bhagat died in the said accident, so also other five persons were also injured in the said accident.
10] The cover note (Exh.27), no doubt, shows the sitting capacity one plus one which means driver plus one Hamal is covered. However, the insurance policy (Exh.43) shows the sitting capacity as one. Significantly the witness, who was examined on behalf of insurance company, admitted the contents of the cover note. If there would have been any mistake in the cover note, then it was the duty of the owner of the vehicle to communicate the same to the insurance company and the insurance company would have rectified it, however, neither the owner noticed any error in the cover note nor the insurance company took note of alleged error. In these circumstances, the claim of the third party cannot be denied. In the instant case, the offending vehicle was duly insured with the appellant-insurance company. If at all the insurance company found that the cover note was forged, it was expected to take action against its agent. Even the insurance company was at liberty to take action against the owner of the vehicle. However, the insurance company had not taken any steps in that regard. There was an admission by DW-2, who was working with insurance company that the deceased was on duty as a Hamal on the tractor which was duly insured with the insurance company. The ::: Uploaded on - 20/08/2018 ::: Downloaded on - 21/08/2018 23:47:40 ::: FA 436.18.odt 7 cover note (Exh.27) clearly covers the risk of the deceased. The insurance company has not denied the contents of the cover note. It is worthwhile to note that the insurance company has failed to examine the agent who prepared the cover note (Exh.27). No explanation comes forward for non-examination of the said witness, who would have thrown light on the aspect of the sitting capacity of the insured vehicle. In these circumstances, it is held that respondent no.1 has failed to prove the fundamental breach of policy. Respondent no.1 has not raised any objection in respect of the cover note (Exh.27) which clearly covers the risk of the deceased. Even in the written statement it is not at all the case of respondent no.1 that the cover note was fabricated by the agent who prepared the said cover note. Only at the appellate stage the insurance company has come up with the case that the cover note was fabricated, hence no reliance can be placed on it and thus the cover note does not cover the risk of the deceased. In view of the aforesaid facts, appellant is liable to pay compensation as such.
11] The learned counsel for appellant placed reliance upon I (2017) ACC 33 (Bombay) [United India Insurance Company Limited .vs. Laila Ayyub Sayyad and others]. In that case the deceased was sitting on mudguard of offending tractor. He fell down therefrom as a result of rash and negligent driving by driver of tractor. It was held that person whose risk is not covered under the terms of insurance policy cannot be treated as "third party". Insurance Comany cannot be held liable for satisfying the award. ::: Uploaded on - 20/08/2018 ::: Downloaded on - 21/08/2018 23:47:40 ::: FA 436.18.odt 8 12] The facts in the aforesaid case differ from the instant case. In the case in hand the witness from insurance company himself has admitted the contents in the cover note of the policy. Hence, there is no question of disbelieving the said document. Interestingly the insurance company has not examined the person who was author of the said document. In these circumstances, the case put up by the insurance company cannot be believed. 13] The tribunal has considered the case of the claimants in its right perspective. Hence, no interference is called for. The tribunal has rightly considered the aforesaid aspect and has held respondent nos.1 and 2 jointly and severally liable to pay the compensation of Rs.7,16,000/- to the respondents-claimants herein along with interest at the rate of 7% per annum. 14] In the facts and circumstances, the appeal is liable to be dismissed and accordingly dismissed. No order as to costs.
JUDGE Gulande ::: Uploaded on - 20/08/2018 ::: Downloaded on - 21/08/2018 23:47:40 :::