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2019 DIGILAW 1497 (BOM)

Bajaj Allianz General Insurance Company Ltd. v. Kisan Raghuji Zalwade

2019-06-28

M.G.GIRATKAR

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JUDGMENT : M.G. Giratkar, J. 1. All four appeals are against the judgment of Motor Accident Claims Tribunal, Chandrapur in respect of same accident. Only claimants are different but owner and insurance company are the same in all the appeals. Vehicle involved in the accident is also the same. Facts in all the appeals are near about the same, hence, these appeals are decided by this common judgment. 2. Heard learned counsel for the parties. 3. Admit. 4. Heard finally with consent of learned Advocates appearing for the parties. 5. The accident took place on 18-2-2009. Deceased Parvatibai and others were traveling in bullock cart and they were going towards Ghodpeth from Bhadrawati. Driver of private passenger bus bearing registration No. MH-31-CQ-2466 drove his bus in rash and negligent manner and dashed to the bullock cart. Parvatibai, Chandrasudarshan, Vishal and Daulat sustained injuries in the accident. Two persons died on the spot and two injured persons admitted in the hospital. Report was lodged. Driver of the bus was prosecuted by police for the offences punishable under Sections 279, 337 and 304-A of the Indian Penal Code by Police Station, Bhadrawati. 6. The dependents/claimants filed their respective claims before the Motor Accident Claims Tribunal (MACT), Chandrapur. Respondent no. 2 i.e. present appellant appeared and filed written statements. It is specific defence of insurance company that the passenger bus which was owned by original respondent no. 1 i.e. Ajay Bagadi was not having any permit to ply the bus on the date of accident. Insurance company examined Shri Kadukar, Head Clerk from RTO, Chandrapur office before the MACT, Chandrapur. Shri Kadukar has stated in his evidence that he brought the register before the Tribunal. He has specifically stated in his evidence that on 18-2-2009, the offending bus was not having permit. Accident took place on 18-2-2009. Therefore, it is clear that on the day of accident, the bus was not having permit. Therefore, there is a clear breach of terms of policy. 7. Learned Advocate Mrs. Naik has pointed out judgment of Apex Court in the case of Amrit Paul Singh and Another vs. Tata AIG General Ins. Co. Ltd. and Others, (2018) ACJ 1768. Hon'ble Apex Court has held that "onus lies on the insured to prove possession of permit. No evidence produced by insured to prove that he had a permit to ply the vehicle on the date of accident. Co. Ltd. and Others, (2018) ACJ 1768. Hon'ble Apex Court has held that "onus lies on the insured to prove possession of permit. No evidence produced by insured to prove that he had a permit to ply the vehicle on the date of accident. Use of transport vehicle in a public place without a permit is a fundamental statutory infraction. Therefore, the insurance company is at liberty to pay the amount of compensation and then to recover the same from the owner and the driver." 8. The trial Court allowed all the petitions and directed insurance company to pay the amount of compensation to the respective claimants. 9. None appeared for the respondent-Shri Ajay Mangalchand Bagadi. Learned Advocate Shri Kankale for other respondents/claimants not disputed the proposition of the Apex Court. 10. Entire amount of compensation is deposited by the insurance company before this Court. Hence, all appeals are partly allowed. Impugned judgment is maintained, however, it is modified that insurance company shall pay the amount of compensation granted in all the claim petitions viz. M.A.C.P. Nos. 53/2009, 54/2009, 133/2009 and 134/2009 as directed by the Motor Accident Claims Tribunal, Chandrapur in the impugned judgment. However, insurance company is at liberty to recover the amount of compensation from the owner i.e. respondent Shri Ajay Mangalchand Bagadi. 11. The appeals are accordingly disposed of. 12. All claimants in all the appeals are permitted to withdraw the amount of compensation deposited before this Court along with accrued interest thereon.