Bombay High Court
National Insurance Co. Ltd. Branch ... vs Bajrang Gendlal Kumbhre And Another on 23 July, 2018
Author: Swapna Joshi
Bench: Swapna Joshi
FA 1346.17.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
FIRST APPEAL NO.1346 OF 2017
National Insurance Company Limited,
Branch Nagpur (Kamptee),
Through the Regional Manager,
Regional Office, 5th Floor, Fidvi Towers,
Mount Road, Sadar,
Nagpur. .. Appellant
.. Versus ..
1] Bajrang Gendlal Kumbhre,
Aged about 48 years,
R/o. Pathrai, Tahsil-Ramtek,
District-Nagpur.
2] Mukund Sadashiv Maraskolhe,
Aged - Adult,
R/o. Budhia, Palora,
Tahsil-Ramtek, District-Nagpur. .. Respondents
..........
Shri Ajay Chaphale, Advocate for Appellant,
Shri V.A. Patait, Advocate for Respondent No.1,
None for Respondent No.2 though served.
..........
CORAM : MRS. SWAPNA JOSHI, J.
DATED : 23.07.2018.
ORAL JUDGMENT
1] Admit. Heard finally by consent of learned counsel appearing on behalf of appellant and respondent no.1. None appeared on behalf of respondent no.2 though served.
::: Uploaded on - 02/08/2018 ::: Downloaded on - 02/08/2018 23:59:57 ::: FA 1346.17.odt 2 2] This appeal has been filed against the judgment and order passed by the learned Member, Motor Accident Claims Tribunal-1, Nagpur in Claim Petition No.940/2009 whereby the learned Tribunal has directed respondent no.1-owner of auto-rickshaw and respondent no.2-Insurance Company to pay an amount of Rs.3,53,000/- including of N.F.L. amount to the petitioner with interest @ 7.5% per annum from 8.10.2009 i.e. the filing date of petition, till payment of entire amount. 3] The facts giving rise to the present appeal may be stated in nutshell as under :
(a) On 21.6.2009, the original claimant was proceeding by vehicle bearing no. MH-40-A-3926 from Andhalgaon to Mohadi. The auto-rickshaw was carrying in all eleven passengers. At about 3.20 pm, on the turning, the vehicle turned turtle due to over- loading of passengers beyond the capacity of vehicle. In the said accident, respondent no.1 received grievous injuries, whereas other passengers were injured. After the accident, respondent no.1 was shifted to the hospital at Nagpur.
(b) The First Information Report was lodged by Andhalraon Police Station. On the basis of which the offence came to be registered under Sections 279, 337, 338 and 427 of the Indian Penal ::: Uploaded on - 02/08/2018 ::: Downloaded on - 02/08/2018 23:59:57 ::: FA 1346.17.odt 3 Code read with Section 184 of the Motor Vehicles Act, vide Crime No.55/2009 against the driver of the offending vehicle. The respondent no.1-original claimant filed Claim Petition No.940/2009 under Section 166 of the Motor Vehicles Act, 1988. It was the case of respondent no.1- claimant that accident took place due to rash and negligent driving of the driver of auto-rickshaw due to which he sustained grievous injuries and has suffered permanent disability and, therefore, respondent no.1 claimed a compensation of Rs.3,00,000/- (Rs. Three Lacs). It is the case of the appellant (original respondent no.2)-Insurance Company that it was not liable to pay any compensation, as original respondent no.1, who is the owner of auto-rickshaw, committed the breach of terms and conditions of the policy as the driver had carried eleven passengers in the vehicle. According to respondent no.1, as per the certificate of registration, the carrying capacity of the vehicle was six persons and as the vehicle was overloaded, the driver lost his control over the vehicle and, therefore, the vehicle turned turtle and the passengers had sustained injuries.
(c) The learned Tribunal has considered the facts and the evidence led before it and after hearing both the sides came to the conclusion that the appellant herein, the owner as well as the driver of the vehicle are jointly and severally liable for the claim of Rs.3,53,000/- with interest @ 7.5% per annum.
::: Uploaded on - 02/08/2018 ::: Downloaded on - 02/08/2018 23:59:57 ::: FA 1346.17.odt 4 4] The learned counsel for the appellant-insurance company vehemently argued that the learned Tribunal has not considered the evidence on record that the accident had occurred due to the overloading of the passengers by the auto-rickshaw beyond the carrying capacity of the vehicle. It was submitted that the auto-rickshaw driver carried eleven passengers and the capacity of the vehicle was to carry six passengers only and as the auto-rickshaw was overloaded by the passengers, the vehicle turned turtle on the turning point of the road and caused injuries to the passengers and therefore the Insurance Company is not liable to pay the compensation as such and the liability cannot be fastened on the appellant.
5] Per contra, the learned counsel for respondent no.1-claimant contended that even assuming that the auto-rickshaw was overloaded by eleven passengers, however, it is to be considered that the policy of the appellant covered six passengers and one driver. It was further submitted that the case of respondent no.1-claimant is covered under the said policy and as none of the passengers had filed any petition against the appellant, therefore, respondent no.1-claimant is entitled for the said claim as he is out of those six passengers who were travelling in the said auto-rickshaw.
::: Uploaded on - 02/08/2018 ::: Downloaded on - 02/08/2018 23:59:57 ::: FA 1346.17.odt 5 6] After considering the rival contentions of the learned counsel for appellant and the learned counsel for the respondent no.1-claimant, the point which arise for my consideration is "whether the case of respondent no.1-claimant is covered under the policy of the appellant." 7] It is not disputed that respondent no.2 is the registered owner of auto-rickshaw Mahindra Champion. It is also not disputed that the said vehicle was insured with appellant for the period from 4.10.2008 to 2.10.2009. In view thereof, the liability is to be fastened on the appellant and the appellant will be liable to pay the compensation. 8] The respondent no.1-claimant had examined himself on oath. The appellant had examined only one witness who stated that at the time of accident there were eleven passengers in the auto-rickshaw beyond the permitted sitting as per the RTO. Hence there is a breach of terms and conditions of the insurance policy. Therefore, the appellant is not liable to pay the compensation of respondent no.1. It was stated that as the owner breached the policy, therefore, the appellant is only liable and responsible to pay the compensation awarded by the learned Tribunal. The appellant submitted that auto-rickshaw bearing No. MH-40-A-3926 was insured by the National Insurance Company Limited, Kamptee, Nagpur.
::: Uploaded on - 02/08/2018 ::: Downloaded on - 02/08/2018 23:59:57 ::: FA 1346.17.odt 6 9] The respondent no.1 had examined himself on oath and stated that on 21.6.2009 at about 15.20 hours near mouza Dongargaon within the jurisdiction of Andhalgaon Police Station, when auto-rickshaw was proceeding from Andhalgaon to Mohadi near village Dongargaon, the driver of offending vehicle was driving in a high speed and in rash and negligent manner therefore he could not control the offending vehicle and therefore the said vehicle turned turtle thereby respondent no.1 received serious injuries to his leg like fracture of shaft femur with fracture of pelvis. After the said accident he was taken to hospital at Nagpur and then shifted to IGMC Hospital Nagpur. He was hospitalized for eight days. He was operated there and again hospitalized in GMC Hospital Nagpur for 10 days. According to him he became permanently disabled due to the rash and negligent driving of the driver of Mahendra Champion. He stated that being an agriculturist, he was earning an amount of Rs.5,000/- per month, however, due to the said accident he could not continue his work. He claimed the compensation of Rs.3,00,000/-.
10] The respondent no.1-claimant has also examined the Medical Officer in support of his case. He stated that the claimant had suffered a permanent disability and the said patient was admitted in the hospital. The patient had received blunt injury on abdomen with urethral injury with ::: Uploaded on - 02/08/2018 ::: Downloaded on - 02/08/2018 23:59:58 ::: FA 1346.17.odt 7 haemoperetonia with fracture with shaft femur with pelvic injury. Thus the evidence of respondent no.1 and the Medical Officer shows that respondent no.1 had received fracture injury and sustained 40% permanent disability.
11] On overall assessment of the evidence on record and the documents placed on record and after hearing both the sides, it is apparent that the first information report makes it clear that auto-rickshaw turned turtle by taking turn on the turning due to the loss of control by its driver and thus the accident occurred due to the rash and negligent driving of the driver of auto-rickshaw. The spot panchanama Exh.27 also supports the case of respondent no.1-Claimant and its sketch map prepared by investigating officer shows that there is turning near the spot and there is no other circumstance for causing the accident. Thus, the evidence of respondent no.1 and the documents placed on record are sufficient to establish the rash and negligent driving of auto-rickshaw driver and his responsibility for accident. Similarly the medical evidence shows that respondent no.1 had received injury on his abdomen with urethral injury with haemoperetonia with fracture with shaft femur with pelvic injury. The handicapped certificate issued by the Board of Members of the hospital Exh.32 shows 40% permanent disability. ::: Uploaded on - 02/08/2018 ::: Downloaded on - 02/08/2018 23:59:58 ::: FA 1346.17.odt 8 12] It is not disputed that respondent no.2 is the owner of the said vehicle. He did not dispute that the vehicle was insured with appellant. According to him, the liability will be fastened with the Insurance Company i.e. appellant herein. The driver of offending vehicle did not appear before the Tribunal as he was not made party by respondent no.1. The evidence on record clearly shows that respondent no.1 was injured in a vehicular accident and suffered grievous injury i.e. 40% permanent disability. Similarly the said accident had occurred due to the rash and negligent driving of the vehicle. So far as the breach of conditions of the policy are concerned, as per the case of appellant, respondent no.2, the owner of the vehicle, committed the breach of terms and conditions of the policy. As per the first information report, there were eleven passengers travelling in auto-rickshaw at the time of accident. The sitting capacity of the vehicle was six plus one. Admittedly, the insurance policy of appellant of the vehicle is the package policy (Exh.46) and it was valid for the period commencing from 4.10.2008 to 3.10.2009. The registration particulars at Exh.47 and certificate of registration shows the description of the vehicle i.e. auto-rickshaw having capacity of six passengers plus one driver. The first information report also makes clear that eleven passengers including petitioner were travelling in the said auto-rickshaw. The Policy Exh.46 is a Goods Carrying Commercial Policy and Package Policy premium is paid T.P. Basic 1530, compulsory PA to owner-cum-driver Rs.2,00,000/-. The ::: Uploaded on - 02/08/2018 ::: Downloaded on - 02/08/2018 23:59:58 ::: FA 1346.17.odt 9 learned Tribunal has considered the said aspect and has properly calculated the amount liable to be paid to the claimant. It is already discussed above that it is settled principal of law that in case where third party is involved, the liability of insurance company would be unlimited. The policy in the present case covers the risk of occupants travelling in the vehicle. The respondent no.1 herein also a passenger. The auto- rickshaw was involved in the accident which was caused due to rash and negligent driving of the driver. In such circumstances, the liability of insurance company is to the extent of indemnification of insured against an injured person, passengers or occupants of the vehicle. The risk of petitioner is thus covered by the contract entered into between the owner and the insurer of the vehicle in terms of Section 147 of the Motor Vehicles Act.
13] The learned counsel for the appellant contended that, no doubt, the evidence shows that the auto-rickshaw was loaded by eleven passengers i.e. beyond registration permit. However, it cannot be said to be a fundamental breach. In support of his submission, he placed reliance on decision in case of B.V. Nagaraju .vs. Oriental Insurance Company Limited, reported in 1 (1997) ACC 123 (SC), wherein the Hon'ble Apex Court held that carrying more passengers beyond permitted capacity of the vehicle in a passenger transport will not ipso facto be ::: Uploaded on - 02/08/2018 ::: Downloaded on - 02/08/2018 23:59:58 ::: FA 1346.17.odt 10 violation of purpose for which the permit is granted. Such breach cannot be said to be a fundamental breach in terms of Section 149 (2) of Motor Vehicles Act. It may be a breach of condition of Registration Certificate or route permit but cannot be used as weapon by insurer for avoiding liability to compensate third party in terms of mandate of the provisions of Motor Vehicles Act, 1988. Thus, in view of the aforesaid law laid down by the Hon'ble Apex Court, it cannot be said that the act of driver of offending vehicle carrying more number of passengers is breach of condition of policy. Consequently, the risk of passengers including petitioner is covered in the policy and hence both the respondents are jointly and severally liable to pay the compensation.
14] In case of United India Insurance Company Limited .vs. K.M. Poonam and others, reported in 2011 ACJ 917, it is held by the Hon'ble Apex Court that 15 passengers were carried in a jeep, 5 passengers were allowed along with a driver. The driver and six passengers died and others were injured. In that case, the insurance company contended that its liability is limited to number of passengers validly permitted to be carried in the vehicle and did not extend to passengers in excess of permitted number. The Hon'ble Apex Court held that the liability of insurance company is confined to six persons covered by the policy and not beyond. It was limited to highest six awards and the ::: Uploaded on - 02/08/2018 ::: Downloaded on - 02/08/2018 23:59:58 ::: FA 1346.17.odt 11 insurance company was directed to pay amount of all the awards to the claimants and recover the amount in excess of its liability from the owner in execution without filing a separate suit. The learned counsel also relied upon the principles laid down by the Hon'ble Supreme Court in case of Sarla Verma .vs. Delhi Transport Corporation, reported in 2009 (2) T.A.C. 677 (S.C.) 15] In the instant case, admittedly the liability of the insurance company is limited to six plus one. The appellant is one amongst those six persons. The evidence of insurance company has admitted that only respondent no.1 herein has filed a claim petition in the Motor Accident Claims Tribunal meaning thereby that the other passengers had not filed any claim against the insurance company. In view of the settled position, the learned Tribunal has rightly come to the conclusion that respondent no.1 herein is entitled for the claim and awarded the compensation of Rs.3,53,000/- including of N.F.L. amount with interest @ 7.5% per annum. I do not find any illegality or perversity in the judgment passed by the learned Tribunal. The learned Tribunal has rightly calculated the amount due to respondent no.1.
16] In view of the facts and circumstances of the case, since no illegality or perversity is noticed in the impugned judgment passed by the ::: Uploaded on - 02/08/2018 ::: Downloaded on - 02/08/2018 23:59:58 ::: FA 1346.17.odt 12 learned Tribunal, the appeal needs to be dismissed. Hence, it is dismissed.
JUDGE Gulande ::: Uploaded on - 02/08/2018 ::: Downloaded on - 02/08/2018 23:59:58 :::