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2024 DIGILAW 685 (AP)

United India Insurance Co. Ltd. v. Pudi Rambabu

2024-06-24

B.V.L.N.CHAKRAVARTHI

body2024
JUDGMENT : B.V.L.N. CHAKRAVARTHI, J. 1. This appeal is preferred by the 3rd respondent/Insurance Company, challenging the order and decree dated 27.06.2012 passed in M.V.O.P. No. 710/2010 on the file of Motor Accidents Claims Tribunal-cum-VIII Addl. District Judge, East Godavari District at Rajahmundry, wherein the learned Tribunal while partly allowing the petition, awarded compensation of Rs.4,05,000/- with interest @ 7.5% p.a. from the date of petition, till the date of realisation for the injuries sustained by the petitioner in a motor vehicle accident occurred on 10.06.2009. 2. For the sake of convenience, the parties are arrayed as parties in the trial Court. 3. As seen from the record, originally the petitioner filed an application U/s. 166 of Motor Vehicles Act, 1988 (for brevity “the Act”) claiming compensation of Rs.5,00,000/- on account of the injuries sustained by him in a motor vehicle accident occurred on 10.06.2009. 4. The facts show that the petitioner has been working as cleaner on the bus bearing No. AP 05 X 2277 and on 10.06.2009 at about 10.00 p.m. he along with the 1st respondent started on the said bus, and the bus reached Sabbavaram outskirts, 1st respondent drove the bus in a rash and negligent manner with high speed and applied sudden brakes, as a result, the petitioner, who sat in front portion of the bus, came out of the bus and fell on the road and back wheels of bus ran over his both legs and he received grievous injuries. Immediately, the petitioner was shifted to King George Hospital, Visakhapatnam, and for better treatment he was admitted in Chandana Hospital, Visakhapatnam, wherein the petitioner was treated as an in-patient for one month and he incurred a sum of Rs.2,00,000/- towards medical expenses. The petitioner is earning Rs.3,000/- per month by the date of accident and due to accident, he totally depend on others. 5. The respondents No. 1 and 2 remained ex-parte. 6. Before the learned Tribunal, the 3rd respondent/Insurance Company filed written statement, while traversing the material averments with regard to proof of age, avocation, monthly earnings of the injured, manner of accident, rash and negligence on the part of the driver of the offending vehicle, and liability to pay compensation, contended that the said bus was not insured with the 3rd respondent and it is not liable to pay any compensation to the petitioner. The 1st respondent is not having valid and effective driving license to drive the crime vehicle. 7. The 3rd respondent/Insurance Company filed additional written statement, contending that the claim petition filed by the petitioner U/s. 166 of M.V. Act is not maintainable as he received injuries due to his own negligence. The insurance policy does not cover the risk of the petitioner, because, the petitioner is not a third party. 8. On the strength of the pleadings of both parties, the learned Tribunal framed the following issues for trial: 1. Whether the petitioner sustained injuries due to rash and negligent driving of the vehicle i.e. bus bearing No. AP 05 X 2277 by its driver/1st respondent? 2. Whether the petitioner is entitled to any compensation? If so, to what amount and against whom? 3. To what relief? 9. To substantiate his claim, the petitioner examined PWs 1 to 3 and got marked Exs.A-1 to A-8 and Exs.X-1 to X-3. On behalf of the 3rd respondent, RWs 1 to 3 were examined and Exs.B-1 to B-9 were marked. 10. The learned Tribunal, taking into consideration the evidence of PWs 1 to 3, coupled with Exs.A-1 to A-8 and Exs.X-1 to X-3, held that the accident took place due to the rash and negligent driving of the bus driver, and further, taking into consideration the evidence of PWs 1 to 3, corroborated by Exs.A-1 to A-8, awarded a compensation of Rs.4,05,000/- with interest @ 7.5% p.a. from the date of petition, till the date of realisation against the respondents 1 to 3. 11. The core contention of the learned counsel for the appellant/Insurance Company is that the insurance policy issued for the crime vehicle i.e. bus bearing No. AP 05X 2277 does not cover the risk of the cleaner of the bus, and as such, there is no privity of contract between the owner of the crime vehicle and the appellant/Insurance Company. Therefore, the appellant/Insurance Company is not liable to indemnify the owner of the crime vehicle, but the learned Tribunal failed to consider the said contention and fastened joint and several liability on the appellant/Insurance Company along with owner of the crime vehicle. 12. Therefore, the appellant/Insurance Company is not liable to indemnify the owner of the crime vehicle, but the learned Tribunal failed to consider the said contention and fastened joint and several liability on the appellant/Insurance Company along with owner of the crime vehicle. 12. The learned counsel for appellant/Insurance Company further vehemently contended that the appellant is not liable to indemnify the owner of the crime vehicle i.e. insured on the ground that the insurance policy issued to the crime vehicle does not cover the risk of the cleaner of the bus, and there is no dispute about the claim of compensation awarded by the learned Tribunal to the petitioner. 13. In the light of above contentions, the point that would arise for consideration in this appeal is as under: “Whether the order and decree passed by the learned Tribunal warrants interference of this Court?” 14. POINT: Perused the material available on record. The claimant in the claim petition mentioned the policy number as 15110031080100004887. The appellant/Insurance Company in the written statement filed on 25.04.2011 did not deny that the policy number do not relate to crime vehicle. Subsequently, on 16.04.2012 filed a memo along with Ex.B-5 i.e. a duplicate insurance policy relating to policy number 15110031080100004887, issued for the vehicle No. AP 31 AQ 9090, stating that as per their records, the said insurance policy was issued to a private car as stated above, but not to the crime vehicle. Later, the appellant/Insurance Company filed additional written statement on 11.06.2012 contending that the insurance policy does not cover the risk of the petitioner, because, the petitioner is not a third party, if he assumes as an employee/cleaner as per his own admission. 15. It is pertinent to note down that in the additional written statement, which was filed subsequent to the memo dated 16.04.2012, surprisingly, the appellant did not take a plea as mentioned in the memo. On the other hand, contended that the insurance policy relating to crime vehicle i.e. bus bearing No. AP 05X 277 does not cover the risk of the petitioner, because, the petitioner is an employee i.e. cleaner and not a third party. The appellant either in the original written statement or in the additional written statement failed to take any specific plea that no insurance policy was issued by the appellant/Insurance Company to the crime vehicle involved in the impugned accident. 16. The appellant either in the original written statement or in the additional written statement failed to take any specific plea that no insurance policy was issued by the appellant/Insurance Company to the crime vehicle involved in the impugned accident. 16. It is pertinent to note down that as per evidence of RW-3 i.e. Senior Assistant working in Road Transport Authority, Rajahmundry, examined by the appellant before the learned Tribunal deposed that their office issued Ex.B-7 to the crime vehicle allowing the crime vehicle to travel outside the State or within the State for a temporary period upto 13.06.2009. Therefore, on the date of accident, the vehicle was having permit to travel within the State as well as outside the State. He also deposed that on the date of accident, the crime vehicle was having valid permit and fitness certificate as per Ex.B-7. He also deposed that Ex.B-8 is the Registration Extract of the bus and Ex.B-9 is the driving license of the 1st respondent. So, on the date of accident, the vehicle was having valid permit as well as fitness certificate and the driver was having valid license to drive the vehicle. 17. The appellant/Insurance Company though contended that the insurance policy issued to the bus does not cover the risk of the cleaner, neither filed the copy of insurance policy nor examined any of its Officer to depose that no insurance policy was issued by the appellant/Insurance Company to the crime vehicle, or it does not cover the risk of the cleaner. In those circumstances, the appellant/Insurance Company failed to prove the said fact. 18. The Hon’ble Apex Court in the case of National Insurance Company Limited vs. Swaran Singh and Others, 2004 (3) SCC 297 held as follows: “The burden to prove the defence raised by the insurers as regard the question as to whether there has been any breach of violation of policy conditions of the insurance policy has been issued or not, would be upon the insurer. The breach on the part of the insured must be a wilful one being of fundamental condition by the insured himself and the burden of proof, therefore, would be on the insurer.” 19. The breach on the part of the insured must be a wilful one being of fundamental condition by the insured himself and the burden of proof, therefore, would be on the insurer.” 19. It is settled principle of law that when the Insurance Company i.e. insurer has taken a plea regarding its liability to indemnify the insured on the ground that the insurance policy does not cover the risk of any particular category of persons travelling in the vehicle at the time of accident, the burden of proof is on the Insurance Company to establish the said plea. In the case on hand, the appellant/Insurance Company as discussed above, failed to place any evidence before the learned Tribunal to establish its plea that the insurance policy issued to the crime vehicle does not cover the risk of the cleaner. It also did not place any evidence before the learned Tribunal that no insurance policy was issued to the crime vehicle as pleaded in the written statement. Surprisingly, it has taken a contrary plea in the additional written statement that the insurance policy issued by the appellant does not cover the risk of the cleaner. Therefore, it appears that the appellant/Insurance Company for the reasons best known to it, suppressed the insurance policy relating to the crime vehicle issued by the appellant/Insurance Company and made an attempt to take advantage of the mistake committed by the petitioner while mentioning policy number in the petition. In those circumstances, this Court do not find any merits in the appeal filed by the appellant/Insurance Company and the appeal is liable to be dismissed. Accordingly, the point is answered. 20. In the result, the appeal is dismissed, by confirming the order and decree dated 27.06.2012 passed in M.V.O.P. No. 710/2010 on the file of Motor Accidents Claims Tribunal-cum-VIII Addl. District Judge, East Godavari District at Rajahmundry. There shall be no order as to costs. 21. As a sequel, miscellaneous applications pending, if any, shall stand closed.