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2019 DIGILAW 300 (BOM)

United India Insurance Co. Ltd. v. Meena

2019-01-31

A.S.CHANDURKAR

body2019
JUDGMENT A.S. Chandurkar, J. (Oral) - This appeal under section 173 of the Motor Vehicles Act, 1988 (for short, ''the said Act'') has been filed by the Insurance Company seeking to challenge the judgment of the Motor Accident Claims Tribunal, Bhandara thereby saddling liability on it to satisfy the claim against the appellant. 2. The facts in brief are that on 16.01.2003, one Amrut Meshram was proceeding from Bramhapuri to Nagpur in a Maruti Van that was owned by the predecessor of respondent nos.4 to 8 herein. Said Amrut Meshram was employed as an Assistant Teacher and in connection with the work of the school he was proceeding to Nagpur. The Maruti Van driven by respondent no.9 met with an accident in which said Amrut Meshram expired. His legal heirs therefore sought compensation under Section 166 of the said Act. The Insurance Company in its written statement at Exhibit 22 raised a plea that the vehicle was insured as a private car and not for carrying passengers. After considering the evidence on record, the Claims Tribunal awarded compensation of Rs. 7,56,000/by saddling liability on the insurer and the owner of the vehicle. That award is challenged in the present appeal. 3. Shri Asghar Hussain, learned counsel for the appellant submitted that as the insurance policy was an Act Policy and as the deceased was travelling therein as a passenger, no liability could have been saddled on the Insurance Company as the deceased was not a third party. He referred to the insurance policy at Exhibit 49 and submitted that the risk of the deceased in such manner was not covered. Without considering this aspect, the Insurance Company was saddled with the liability. 4. Shri A.M. Quazi, learned counsel for the respondent nos.1 to 3 Claimants supported the impugned judgment. He submitted that the burden was on the Insurance Company to prove the breach of policy. In absence of any such specific plea being raised and the same not being proved there was no reason to exonerate the Insurance Company. He referred to the deposition of the owner of the vehicle to indicate that the deceased was travelling with the permission of the owner and in connection with his work. It was thus submitted that the Insurance Company was also liable to satisfy the claim. 5. He referred to the deposition of the owner of the vehicle to indicate that the deceased was travelling with the permission of the owner and in connection with his work. It was thus submitted that the Insurance Company was also liable to satisfy the claim. 5. The following point arises for consideration "Whether the Insurance Company is liable to be exonerated from its liability?" 6. After hearing the learned counsel for the parties and after perusing the records of the case, in my view, the aforesaid point is required to be answered in the negative. The only defence as raised in the written statement is that the vehicle in question was insured for private use and not for carrying passengers. There is no evidence led by the Insurance Company to prove this aspect and that the deceased was travelling as a passenger. Though it is submitted that as per the policy at Exhibit 49, the same was an Act Policy, no such plea has been raised by the Insurance Company in its written statement. It is well settled that for avoiding its liability, the Insurance Company has to plead and prove the breach of policy. Moreover such breach has to be fundamental in nature that would put an end to the policy. These vital aspects are missing in the present case. The deposition of the owner of the vehicle indicates the manner in which the deceased was travelling. Hence, the finding recorded by the Claims Tribunal refusing to exonerate the Insurance Company does not warrant any interference. 7. Accordingly, the judgment of the Claims Tribunal in M.A.C.P. No.1 of 2004 dated 26.06.2007 stands confirmed. The First Appeal stands dismissed with no order as to costs. The claimants are free to receive the amount of compensation as deposited with accrued interest.