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2019 DIGILAW 751 (BOM)

United India Insurance Company Ltd. v. Usha

2019-03-14

ARUN D.UPADHYE

body2019
JUDGMENT Arun D. Upadhye, J. - This appeal is filed under Section 173 of the Motor Vehicles Act r/w section 96 of the Code of Civil Procedure challenging the impugned Judgment and award dated 04/10/2010 passed by the Chairman, Motor Accident Claims Tribunal, Gadchiroli in M.A.C.P. No.1/2010. 2. By the impugned Judgment and award, the learned Tribunal has granted compensation of Rs. 4,17,500/with interest @ 7% per annum. 3. This appeal was admitted on 13/07/2011 and waiting for its turn for final hearing. Today, the matter is called out for final hearing. 4. I have heard Shri Lahiri, learned counsel for the appellant and Shri Pendke, learned counsel for respondent Nos.1 to 5, at length. 5. Shri Lahiri, learned counsel for the appellant has submitted that as per the policy at Exh.28, liability of the Insurance Company is Rs. 1,00,000/per passenger and therefore, the insurance company is not liable to pay amount of compensation awarded by the learned Tribunal. He also submitted that as per the evidence of owner of the vehicle, the driver was having only learning licence on the day of accident and he obtained the permanent driving licence on 23/11/2009 subsequent to the accident. According to him, there is breach of policy and therefore, Insurance Company is not liable to pay compensation. The appeal, therefore, be allowed. 6. Shri Pendke, learned counsel has supported the impugned Judgment and prayed for dismissal of the appeal. 7. After hearing both the sides, I have perused the impugned Judgment and award as well as material placed on record. From perusal of the same, it appears that accident took place on 17/11/2009 at about 2.40 p.m. at Mouza Kurkheda, Kurkheda - Malewada Road. At the relevant time, the deceased - Umakant Pandurang Gaikwad was travelling by Mahindra Max Jeep bearing No.MH26/ L743 from Kurkheda towards Chirchadi. The respondent No.6 is the owner of vehicle and said vehicle was insured with the appellant Insurance Company, at the relevant time. The said jeep also turtled and accident took place in which the deceased sustained grievous injuries and succumbed the injuries. 8. The offence was registered against the driver of the vehicle under Sections 279, 337, 338 and 304A of the Indian Penal Code. The driver of the vehicle was rash and negligent while driving the vehicle. 9. They further contended that the deceased was earning Rs. 8. The offence was registered against the driver of the vehicle under Sections 279, 337, 338 and 304A of the Indian Penal Code. The driver of the vehicle was rash and negligent while driving the vehicle. 9. They further contended that the deceased was earning Rs. 4,000/per month and doing the labour work and selling milk. The claimants were dependent upon him. The claimants were restricted the claim of Rs. 5,00,000/. 10. The respondent No.6 owner of the vehicle by filing written statement resisted the claim and denied the contents made in the application. According to him, vehicle was insured with the Insurance Company and he has paid insurance premium. According to him, the driver was having valid licence and therefore, he prayed that the appellant -Insurance Company be held responsible for the compensation. 11. The appellant - Insurance Company has also resisted the claim by filing written statement. All adverse allegations made in the petition are denied. It is denied that the deceased was travelling as a gratuitous passenger and was a friend of the driver of the offending vehicle. It is also contended that the jeep was overloaded and beyond capacity. The driver was not holding any licence and contravened the provisions of the policy. Lastly, it is submitted that the petition be dismissed. 12. After recording the evidence in the matter and after hearing both the sides, the learned Tribunal has partly allowed the claim petition and granted compensation, as referred above. 13. Feeling aggrieved by the said Judgment and award, the appellant - original respondent No.2 has preferred this appeal amongst other grounds mentioned in the Memo of Appeal. 14. From the aforesaid facts and circumstances of the case, the following points arise for my consideration and I record my findings thereon with reasons as under : ISSUES FINDINGS 1. Whether the impugned Judgment and award dated 04/10/2010 passed by the Chairman, Motor Accident Claims Tribunal, Gadchiroli in M.A.C.P. No.1/2010 requires interference of this Court ? No. 2. What order ? As per final order. After considering submissions of respective sides and after having gone through the impugned Judgment and award and material placed on record, it appears that occurrence of the incident is not disputed. The deceased - Umakant Gaikwad was travelling by Jeep No.MH26L0743 from Kurkheda towards Purada and met with an accident. He died in the said accident is not disputed. After considering submissions of respective sides and after having gone through the impugned Judgment and award and material placed on record, it appears that occurrence of the incident is not disputed. The deceased - Umakant Gaikwad was travelling by Jeep No.MH26L0743 from Kurkheda towards Purada and met with an accident. He died in the said accident is not disputed. The offending vehicle was insured with appellant -Insurance Company, at the relevant time, is also not disputed. The only submission put forth on behalf of the appellant that the driver of the vehicle was not having valid driving licence, at the relevant time. He pointed out from the evidence of owner of the vehicle that the driver was having only learning licence on the day of accident and he has obtained permanent driving licence on 23/11/2009 and therefore, there is breach of policy. The submission put forth on behalf of the appellant, cannot be accepted, as on the day of accident, he was having valid learning licence to drive the vehicle. In the cross examination, nothing is put to this witness about the same, except that he has not witnessed the accident. Therefore, the submission put forth on behalf of the appellant that there is breach of policy, cannot be accepted. 15. The next submission made on behalf of the appellant that as per the policy at Exh.28, the liability of Insurance Company is up to Rs. 1,00,000/per passenger. It is to be noted that in the written statement as well as before the Tribunal, this point is never raised. The submission put forth on behalf of the appellant that the liability per passenger is only Rs. 1,00,000/. Therefore, cannot be accepted. 16. After considering the submission of learned counsel for the appellant and having gone through the impugned Judgment and award, I am of the view that the compensation of Rs. 4,17,500/granted by the Tribunal is just and proper and no interference of this Court is called for. The learned Tribunal has considered the evidence on record and awarded compensation to the claimants of deceased - Umakant Gaikwad. The appeal filed by the appellant is having no merit and liable to be dismissed. Hence, I pass the following order. ORDER I) The appeal is dismissed. II) No order as to costs. III) The respondent Nos.1 to 5/claimants are entitled for withdrawal of the amount, if not already withdrawn.