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2017 DIGILAW 981 (BOM)

New India Assurance Company Ltd. v. Ramesh

2017-05-25

B.P.DHARMADHIKARI

body2017
JUDGMENT : B.P. Dharmadhikari, J. Heard Ms. Anita Singh, learned counsel for the appellant Insurance Company. None appears for respondent nos. 1 and 2. Respondent nos. 1 and 2 are claimants in Motor Accident Claim Petition No.179/2003. Owner of the offending vehicle - Jeep bearing registration No. MAF 2446 and its driver, who were party respondents before the Motor Accident Claims Tribunal are not joined as party respondents before this Court in this First Appeal. 2. Accident to that jeep and death of Sou. Pavitra @ Savita in it is not in dispute. Her relationship with claimants is also not in dispute. The Claims Tribunal has awarded total compensation of Rs. 1,65,000/- to claimants and has asked respondent nos. 1, 2 and 3 before it to pay it jointly and severally with 8% interest. Respondent no.3 in proceedings before the Claims Tribunal appears to be present Insurance Company, though its name is not shown as such in copy of judgment provided along with the appeal memo. 3. Ms. Singh, learned counsel has submitted that breach of policy condition was specifically pleaded in written statement by pointing out that the said jeep was registered as a private vehicle and it was carrying passengers for fare. Hence, no liability could have been saddled on the appellant. In the alternative and without prejudice, she submits that in any case insurance company ought to have been permitted to recover the amount of compensation from owner of the offending vehicle. 4. Only question to be looked into by this Court is Whether course adopted by the claims Tribunal in the present matter is just and proper ? 5. Present appeal has been admitted for final hearing on 21.07.2008. This Court granted stay of coercive recovery in execution proceedings subject to depositing 50% of the amount awarded by the Claims Tribunal. Appellant has complied with the said order of deposit. They have completed deposit of 50% of the amount on 06.08.2008 with the Registry of this Court. It appears that the claimants/respondent nos. 1 and 2 have thereafter not moved any application and have not withdrawn the amount. 6. Claims Tribunal has in paragraph no.15 found that though excess number of persons were occupying the jeep, insurance company has not brought on record any material to show that accident occurred because of this excess number. It appears that the claimants/respondent nos. 1 and 2 have thereafter not moved any application and have not withdrawn the amount. 6. Claims Tribunal has in paragraph no.15 found that though excess number of persons were occupying the jeep, insurance company has not brought on record any material to show that accident occurred because of this excess number. In paragraph no.17, it has looked into the contention of charging fare and use of jeep as a transport vehicle for carrying passengers and declined to look into it on the ground that the insurance company has not pleaded it in the written statement. Perusal of paragraph no.4 of the Written Statement shown by the learned counsel for the insurance company to this Court (Exh.18), reveals that in "further pleas" (in written statement) the insurance company has specifically pointed out appointment of an inspector by it, investigation by him and fact that 15 passengers were traveling by paying fare and claimed that this was in clear cut breach of policy. It also pointed out that the jeep was a private jeep for own use of owner with sitting capacity of 7 + 1 including driver. The Claims Tribunal, therefore, is not correct in observing that the insurance company has not raised this defence before it. 7. However, the facts show that the deceased was killed in an accident and vehicle was insured with the appellant. In the light of the facts noted above, interest of justice could have been satisfied by permitting the appellant insurance company to recover the amount of compensation to be paid by it to respondents/claimants from owner of the vehicle/jeep. Unfortunately in this appeal, the owner or its driver are not joined as party respondents. 8. It has also been noted by this Court that the claimants may not have withdrawn the full amount of compensation awarded to them by the Claims Tribunal. At least 50% of the amount of compensation is still not paid by the Insurance Company. 9. In this situation, taking over all view of the matter, as full amount is not deposited by the insurance company and it is not still received by the claimants, the appellant - insurance company is directed to deposit the remaining amount as per directions of the Claims Tribunal with the Motor Accident Claims Tribunal, Akola within a period of three months from today. If it deposits such amount, it is permitted to initiate proceedings against owner of the offending vehicle for claiming reimbursement of that amount. 10. With these directions and liberty, First Appeal is disposed of. No costs.