Bombay High Court
The Oriental Insurance Co. Ltd., ... vs Smt. Deepa Wd/O Paritosh Debnath And 3 ... on 8 March, 2019
Author: A. S. Chandurkar
Bench: A. S. Chandurkar
263-FA-J-283-11 1/5
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
FIRST APPEAL NO.283 OF 2011
The Oriental Insurance Co. Ltd.
Chandrapur, Thr. Its T.P.Hub Incharge,
Shukla Bhawan, W.H.C. Road,
Dharampeth, Napur ... Appellant
-vs-
1. Deepa wd/o Paritosh Debath,
aged about 26 years, Occupation-Nil
2. Komal d/o Paritosh Debnath,
aged about 3 years, Occupation Nil
3. Sunil s/o Kishori Debnath,
aged about 62 years, Occupation Nil
4. Maya w/o Sunil Debnath
aged about 52 yeas, Occupation Nil
Respondent No.2, Minor, Through her
mother Respondent No.1
All R/o Mukti Colony, Macchi Nala,
Milk Daity, Industrial Estate,
Chandrapur, Tahsil and District Chandrapur ... Respondents
Shri Ajay Joshi, Advocate for appellant.
Shri V. N. Morande, Advocate for respondent No.1.
CORAM : A. S. CHANDURKAR, J.
DATE : March 08, 2019.
Oral Judgment :
This appeal under Section 173 of the Motor Vehicles Act, 1988 ::: Uploaded on - 30/03/2019 ::: Downloaded on - 31/03/2020 02:05:20 ::: 263-FA-J-283-11 2/5 (for short, the said Act) takes exception to the judgment of the Motor Accident Claims Tribunal, Gadchiroli dated 24/11/2010 whereby the claim for compensation as made by the respondent Nos.1 to 4 has been partly allowed.
2. It is the case of the claimants that on 15/06/2004 the husband of respondent No.1 was proceeding in a mini-truck that was owned by him. The said vehicle was insured with the appellant herein. The husband of respondent No.1 lost control over the said vehicle as a result of which it dashed a tree resulting in grievous injuries to him. The husband of respondent no.1 succumbed to the injuries and hence a claim petition under Section 166 of the said Act was filed. The insurer opposed aforesaid proceedings on the ground that the deceased being the owner of the vehicle was not a third party and hence he was not entitled to receive any compensation. The Claims Tribunal after considering the evidence led by the parties awarded an amount of Rs.4,41,500/- with interest. Since the insurer has been held liable to satisfy the claim for compensation, the present appeal has been filed.
3. Shri A. Joshi, learned counsel for the appellant submitted that in the light of the policy of insurance at Exhibit-43 the risk of the deceased who was the owner of the vehicle was not covered. The deceased was neither a ::: Uploaded on - 30/03/2019 ::: Downloaded on - 31/03/2020 02:05:20 ::: 263-FA-J-283-11 3/5 third party nor was any premium paid for personal accident benefits. The driver's clause as appearing in Exhibit-43 also did not cover the risk of the deceased. Placing reliance on the decisions in Oriental Insurance Co. Ltd. vs. Jhuma Saha and ors. 2007 ACJ 818, National Insurance Company Limited vs. Ashalata Bhoumik and ors. AIR 2018 SC 4133 and Divisional Manager, National Insurance Co. Ltd. vs. Mahamooda and ors. 2009(3) ALT 682 it was submitted that the judgment of the Claims Tribunal was liable to be set aside.
4. Shri V. N. Morande, learned counsel for the respondents supported the impugned judgment. According to him the risk of the driver was very much covered as per the terms of the insurance policy. No evidence was led by the insurer to prove its defence. Relying upon the decision in Kunti Ahirwar and ors. vs. State AIR 2007 Madhya Pradesh 82 it was submitted that there was no prohibition that an insurer should not issue a policy in favour of the insured. The Claims Tribunal rightly considered this aspect of the matter while holding the insurer liable. Hence the appeal was liable to be dismissed.
5. The following point arises for consideration :
" Whether the appellant is liable to be exonerated of its liability ?"
I have heard the learned counsel for the parties at length and I ::: Uploaded on - 30/03/2019 ::: Downloaded on - 31/03/2020 02:05:20 ::: 263-FA-J-283-11 4/5 have perused the records of the case. The only challenge raised by the appellant is based on the policy of insurance at Exhibit-43. As per the said policy, the legal liability of an employee/driver was covered besides basic liability. Another clause in the said policy covers the risk of the driver and it has been stated that it would include any person including the insured. The only requirement was that the person driving the vehicle ought to hold an effective driving license and such person should not be disqualified from driving. It is seen that the claimants examined a senior clerk from the Regional Transport Office and he referred to the license issued to the deceased which was valid on the date of the accident. Its copy was at Exhibit-39 and it is on that basis that a finding was recorded that the deceased was holding a valid license. It is further seen that the insurer merely relied upon the contents of the First Information Report without examining any witness to prove its defence. It was thus concluded that since the driver's clause in the insurance policy covered the risk of any person including the insured and as the deceased had a valid license, the Insurance Company was held liable. The ratio of the decision in Kunti Ahirwar and ors. (supra) supports the case of the respondents.
6. In so far as the decisions relied upon by the appellant are concerned, the same relate to the aspects where no additional premium was paid to cover the risk of the owner-insured. The clause which was present in ::: Uploaded on - 30/03/2019 ::: Downloaded on - 31/03/2020 02:05:20 ::: 263-FA-J-283-11 5/5 the insurance policy at Exhibit-43 is not shown to be present in those cases. Thus in the facts of the present case and in absence of there being any evidence on the part of the appellant to substantiate its defence, the challenge as raised is not liable to be accepted. The point as framed is answered accordingly.
7. As a result, the First Appeal stands dismissed with no order as to costs. The respondents are free to withdraw the amount of compensation along with accrued interest in terms of the judgment of the Claims Tribunal.
JUDGE Asmita ::: Uploaded on - 30/03/2019 ::: Downloaded on - 31/03/2020 02:05:20 :::