[PRECEDENT] 1/8 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. FIRST APPEAL NO.108 OF 2014 The [ENTITY] Through its Manager, Regional Office, M.E.C.L. Building, Seminary Hills, Nagpur. Appellant. -vs- 1. [ENTITY] s/o [ENTITY] Aged about 16 years, Occ. Student, Petitioner is minor through Natural guardian maternal uncle [ENTITY], Aged about 36 years, Occ. Fisherman, R/o Panchala, Tahsil Ramtek, Dist. Nagpur. 2. [ENTITY] w/o [ENTITY], Aged about Major, Occ. Owner, R/o Shaniwari Ward, Ramtek, Dist. Nagpur (owner of vehicle). Respondents. Shri [ENTITY], Advocate for appellant. Shri [ENTITY], Advocate for respondent No.1. Shri [ENTITY], learned counsel for respondent No.2. CORAM : [ENTITY], J.
DATE : February 23, 2017 Oral Judgment :
[CASE NUMBER] has been filed by the claimants seeking permission to withdraw the amount deposited by the appellant. As this application was opposed by learned counsel for the appellant, with consent of parties, learned counsel were heard finally in the appeal itself.
By this appeal filed under [SECTION] of the [ACT] (for short, the said Act) the judgment of the Claims Tribunal dated 10/09/2013 in [CASE NUMBER] is under challenge. By said judgment, the claimant has been granted compensation of an amount of Rs.4,23,000/- with interest @7.5% per annum.
2. It is the case of respondent No.1 that his mother [ENTITY] was working as labourer being employed with a contractor [ENTITY]. Said contractor is the husband of respondent No.2. The claimant's mother was proceeding for work in the matador owned by respondent No.2. As the tyre of said vehicle burst, the vehicle turned turtle resulting in fatal injuries to [ENTITY]. On that basis claim petition under [SECTION] of the said Act came to be filed.
The owner of the vehicle did not contest the petition. The Insurance Company took the stand that as there was breach of policy condition, it could not be held liable for satisfying the claim. By the impugned judgment the Claims Tribunal allowed the claim petition and granted liberty to the appellant to first satisfy the award and then recover the same from the owner.
3. Shri [ENTITY], learned counsel for the appellant submitted that the deceased was not a third party when the accident occurred and hence the Claims Tribunal was not justified in holding it liable to satisfy the claim. As per the First Information Report at Exhibit-34, about 28 persons were travelling in the said goods vehicle and this resulted in breach of policy condition. It was submitted that considering such breach, the direction issued by the Claims Tribunal to first pay the compensation and then recover the amount from the owner was not sustainable. In support of his submissions, the learned counsel placed reliance upon the decisions in United India Insurance Co. Ltd. Shimla vs. [ENTITY] and ors., (2006) II ACC 1, Oriental Insurance Co. Ltd. vs. [ENTITY] and ors. 2004 ACJ 721 and United India Insurance co. Ltd. vs. [ENTITY] and ors. 2008(1) Mh.L.J. 73. It was therefore submitted that the appellant should be exonerated from its liability.
4. Shri [ENTITY], learned counsel for the respondent No.1 submitted that the appellant was rightly held liable to satisfy the claim for compensation. He referred to the evidence on record to indicate that the appellant had not proved the breach of policy condition. It was then submitted that it was not necessary to direct the owner of the vehicle to first provide any security before the Insurance Company deposited the amount of compensation. Such directions were directory in nature. In that regard the learned counsel placed reliance on the judgment of Allahabad High Court in [PRECEDENT]. and judgment of learned Single Judge dated 02/09/2016 in [CASE NUMBER] ([PRECEDENT])
5. Shri [ENTITY], learned counsel for respondent No.2 submitted that there was no breach of policy condition in view of the fact that as per said policy, five labourers were permitted to be carried in the said vehicle along with the driver. He referred to the judgment in [ENTITY] vs. M/s Oriental Insurance Co. Ltd. AIR 1996 Supreme Court 2054 to submit that as claim had been lodged only one labourer and the appellant was liable to satisfy the same. He also referred to the judgment of Division Bench in [PRECEDENT]. [PRECEDENT] and [ENTITY] v. Kamlaben Sultansingh Jada and ors. AIR 1993 Gujrat 171. Relying upon judgment of Honourable Supreme Court in [PRECEDENT] it was urged that even at the instance of the respondent the award could be modified for exonerating the liability of the owner.
6. With the assistance of learned counsel for the parties I have perused the records of the case and I have given due consideration to their respective submissions. The following point arises for consideration :
" Whether the impugned award deserves to be interfered with ? "
7. The sister of the deceased was examined on behalf of the claimant who was a minor. Her affidavit of evidence is at Exhibit-30 in which she has stated that her sister was working as a labourer and was travelling in the vehicle owned by respondent No.2. In her cross-examination, she stated that her sister was working with the husband of respondent No.2 who was a contractor. She further stated that there were about 25-26 occupants in the said vehicle. The First Information Report at Exhibit-34 indicates that the husband of respondent no.2 was a contractor and the said labourer was present in the vehicle owned by the respondent No.2 to go to the place of work. The Insurance Policy at Exhibit-37 and 38 indicates premium being paid for five employees.
The appellant did not lead any evidence in support of its stand that it was liable to be exonerated on account of breach of policy conditions.
8. The accident in question occurred as the right side tyre of the rear side of the vehicle had burst. The vehicle therefore turned turtle. It is on this basis that the Claims Tribunal has recorded a finding that the accident occurred due to rash and negligent driving of the offending vehicle.
9. In [ENTITY] (supra) the Insurance Policy of the insured vehicle indicated that six workmen were permitted to be carried in said vehicle. While considering the effect of this clause, the Honourable Supreme Court observed that there was no evidence that by virtue of carrying said six persons, weight of the vehicle had increased. In the present case though it is stated that about 20-25 persons who were being carried in the said vehicle, claim for compensation has been preferred only by the present claimant. In [ENTITY] (supra) the Division Bench of this Court observed that even in a goods vehicle if number of passengers exceeded the permissible limit, it could not be said that there was breach of policy conditions. It was further observed that such breach was not fundamental in nature to exonerate the Insurance Policy. Similar view has been taken in [ENTITY] (supra). From the aforesaid it can be held that the Claims Tribunal was justified in holding that the appellant was liable to pay the compensation.
10. The ratio of the decision in [ENTITY] and ors. (supra) would not apply to the facts of the present case considering the coverage that was provided in the Insurance Policy at Exhibit-37. In [ENTITY] and ors. (supra) it was found that there was a fundamental breach of policy due to which the Insurance Company was exonerated from its liability. As it has been found that such fundamental breach of policy has not been proved in the present case, ratio of said decision cannot be made applicable in the present facts.
11. In so far as the liberty granted to the appellant to proceed against the owner of the vehicle after satisfying the award is concerned, the learned counsel for the respondent No.2 by relying upon the decision in [ENTITY] and ors. (supra) sought to urge that the Insurance Company alone should be held liable and the owner should be exonerated. As per the aforesaid decision, the Appellate Court under provisions of [SECTION] of the [ACT] can pass such orders so as to make the award as passed more effective. It is to be noted that the respondent No.2 has not challenged the direction issued by the Claims Tribunal by which recovery of the amount of compensation from said respondent has been directed. It is not the ratio of aforesaid decision that in the appeal filed by the Insurance Company, the liability of the owner can be discharged without the owner filing any cross-objection or cross appeal. Same would amount to modifying the award and granting such relief would place the appellant in a worst position. Said direction therefore cannot be granted in the present facts.
12. The submission made on behalf of the appellant that the respondent No.2 should first be directed to furnish security and also by attaching the vehicle in question cannot be accepted. In [ENTITY] and ors. (supra) the accident in question had taken place on 15/09/1990 and in that backdrop the aforesaid directions came to be issued. As no such case has been found to have been made out that the appellant on the basis of which it can be exonerated of its liability, there is no reason to issue such direction. The point as framed is answered by holding that it is not necessary to interfere with the judgment of the Claims Tribunal.
13. In view of aforesaid the judgment of the Claims Tribunal in [CASE NUMBER] stands confirmed. The first appeals stands dismissed with no order as to costs. The amount deposited by the appellant shall be made over to respondent No.1 along with accrued interest. Accordingly [CASE NUMBER] does not survive and the same is disposed of.
JUDGE [ENTITY]