[SECTION] 1/9 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. FIRST APPEAL NO.236 OF 2007 Dr [ENTITY] s/o Onkar Tayade Since dead through Legal heirs : (1a) Abhijeet s/o [ENTITY], aged about 35 years, R/o Badi Sabji Mandi, Behind Co-operative Bank, Wardha-442001 (1b) Parineeta Jagtap, aged about 37 years, C/o Deepak R. Patel, A Wing, 202-Ashwamedh-II, Near Samrajya-1, Mujmoda-Akota Road, Vadodara (Gujrat) Appellants. -vs- 1. [ENTITY] Through its General Manager, Branch : Wardha, Tah. & dist. Wardha. 2. [ENTITY] w/o [ENTITY], Aged about 53 years, R/o Ward No.26, Old Santra Market, Wardha, Tah. & Dist. Wardha. Respondents. Shri [ENTITY], Advocate along with Shri [ENTITY], Advocate for appellants. Shri [ENTITY], Advocate for respondent No.1. Shri [ENTITY], Advocate for respondent No.2. CORAM : A.S.CHANDURKAR, J.
DATE : April 15, 2016 Oral Judgment :
The appellants who are the legal heirs of the original claimant take exception to the judgment of the Motor Accident Claims Tribunal, Wardha in [CASE NUMBER] being aggrieved by the rejection of the claim petition filed under [SECTION] of the [ACT] (for short, the said Act) vide judgment dated 08/12/2006.
2. Facts giving rise to the present appeal are that the respondent No.2 is the wife of Dr [ENTITY] was the owner of motor vehicle bearing No.MH-32-B-522. Said Dr [ENTITY] was working as a Resident Medical Officer. On 30/01/1993 while he was driving the said car along with one Dr [ENTITY], while crossing an unguarded bridge, the car fell into a stream resulting in injuries to the said Dr [ENTITY]. He therefore filed a claim petition under [SECTION] of the said Act claiming compensation of Rs.20,00,000/-. The respondent No.1 filed its written statement below Exhibit-19. It denied the claim for compensation and pleaded that though the vehicle in question was duly insured, the risk of only a paid driver was covered. It was also pleaded that the vehicle in question had a taxi permit and said Dr [ENTITY] who was serving as a Medical Officer was not the paid driver. It was also pleaded that the said Dr [ENTITY] himself was responsible for the occurrence of the accident.
The respondent No.2 did not file any written statement as a result of which the matter proceeded without her written statement.
3. On behalf of the claimant, his son was examined below Exhibit-
30 in support of claim for compensation. He deposed that the accident occurred as the bridge on which the car was passing did not have side guard.
He then deposed about the injuries suffered by his father and the medical treatment taken him him. In his cross examination, he admitted that the vehicle was having a taxi permit and though the same was being driven by his father, he denied the suggestion that the accident occurred due to rash and negligent driving of his father.
On behalf of respondent No.1, its Development Officer was examined below-60. He stated that the vehicle in question had a taxi permit and that premium of Rs.15/- was paid for the driver. The policy was placed on record at Exhibit-61.
4. The learned Member of the Claim Tribunal after considering the evidence on record came to the conclusion that the accident occurred due to the rash and negligent driving by the claimant himself. It was further held that the appellant was not entitled for compensation as the accident occurred due to his own fault. It was further held that there was no case made out to grant compensation in favour of the claimant. Hence by the impugned judgment dated 08/10/2006, the claim petition came to be dismissed. The claimant had filed the present appeal. However, during pendency of the appeal he expired. His legal heirs are pursuing the same.
5. Shri [ENTITY], along with Shri [ENTITY], the learned counsel for the appellants submitted that the Claims Tribunal was not justified in dismissing the claim for compensation. It was submitted that the accident in question occurred as the bridge on which the car was travelling did not have any side guard. He referred to the spot panchanama at Exhibit-
41 to indicate that the appellant was not at fault for causing the accident. He relied on the insurance policy at Exhibit-61 and submitted that premium of Rs.15/- had paid for the driver and premium was also paid for own damage.
It was submitted that as the vehicle was owned by respondent No.2 and was being driven by her husband, the appellant was entitled for compensation and same could have been granted by treating him a de facto owner. In support of his submissions the learned counsel placed reliance on the judgment of Honourable Supreme Court in [ENTITY] and anr. v. United India Insurance Co. Ltd. 2009 ACJ 2020, judgment of learned Single Judge in [PRECEDENT] and judgment dated 20/02/2016 in [CASE NUMBER] [PRECEDENT]. It was therefore submitted that considering the aforesaid, the appellant was entitled for just compensation.
6. Shri [ENTITY], the learned counsel for respondent No.1 supported the impugned judgment. According to him the claimant himself being at fault and the same resulting in an accident, the claimant would not be entitled for compensation. He submitted that the contractual liability of the Insurance Company would not arise in the present fact especially when no other vehicle was involved in the accident and the accident occurred as the vehicle driven by the appellant fell down from the bridge. It was further submitted that there was no evidence on record to indicate that the appellant was the paid driver of the vehicle. At the most, he could be treated as having borrowed the vehicle belonging to his wife. The learned counsel placed reliance on the following decisions in support of his submissions :
(a) [PRECEDENT].
[PRECEDENT]
(b) [PRECEDENT].
(c) [PRECEDENT] It was therefore submitted that in absence of any contractual liability, the appellant was not entitled for any compensation.
7. The following point arises for consideration :
" Whether the claimant is entitled for compensation under [SECTION] of the said Act ? "
With the assistance of learned counsel for the parties, I have perused the records of the case and I have gone through the impugned judgment. The Claims Tribunal after considering the evidence on record has found that the accident occurred due to the rash and negligent driving of the claimant himself inasmuch as there was no other vehicle involved in the accident. In the spot panchanama at Exhibit-41 it was recorded that it was likely that a vehicle coming from opposite side could not be seen clearly while crossing the bridge. These observations in the spot panchanama on the likely cause of accident, cannot be relied and said document has to be used only for the purpose for which the same was prepared. In absence of any other evidence on record, this finding recorded by the Claims Tribunal that the accident was caused due to the rash and negligent driving of the appellant cannot be disturbed. It is not in dispute that the vehicle in question was registered as a tourist vehicle having a taxi permit. The policy at Exhibit-61 indicates that premium of Rs.15/- for a paid driver had been paid. Premium for own damage had also been paid.
It is the specific case of the claimant that he was working as a Resident Medical Officer at Wardha. It is not in dispute that the vehicle in question was registered in the name of respondent No.2. To the specific specific statement made by the witness examined on behalf of the Insurance Company that the appellant was not a paid driver, there is no cross examination. Thus the question that is required to be considered in these facts is whether the appellant could be treated to be covered under the policy of insurance at Exhibit-61 for saddling the liability on the Insurance Company.
8. If the policy at Exhibit-61 is perused, it can be seen that premium of Rs.2982/- for own damage (premium on vehicle and non-electrical accessories), basic premium for public risk of Rs.200/- and legal liability for the paid driver at Rs.15/- has been paid. In so far as premium for own damage is concerned, the same would cover only the damage to the vehicle and with regard to non-electrical accessories. Similarly, the premium for the paid driver would not cover the husband of the owner of the vehicle who admittedly was not the paid driver of the vehicle. In Oriental Insurance Co.
Ltd. Vs. Jhuma Saha & ors. 2007 ACJ 818, it was held that in absence of any additional premium being paid for the risk of death or bodily injury to the owner of the vehicle, only the third party risk would stand covered.
Thus, from the policy at Exhibit-61, the liability of Insurance Company for the injury suffered by the claimant would not arise. The claimant was neither a third party as he himself was driving the car nor was he the paid driver as he was the husband of the respondent No.2 being employed elsewhere. The finding of the Claims Tribunal in that regard is therefore liable to be upheld.
9. In so far as the claim for compensation is concerned, it is to be noted that the same was made under [SECTION] of the said Act. It is well settled that in proceedings under [SECTION] of the said Act, the burden is on the claimant to establish the negligence of the driver or owner of the vehicle concerned. Reference in this regard can be made to the observations in paragraph 24 of the judgment in [PRECEDENT]. (supra) wherein it has been observed thus :
24. Therefore, the victim of an accident or his dependants have an option either to proceed under [SECTION] of the Act or under [SECTION] of the Act. Once they approach the Tribunal under [SECTION] of the Act, they have necessarily to take upon themselves the burden of establishing the negligence of the driver or owner of the vehicle concerned.
But if they proceed under [SECTION] of the Act, the compensation will be awarded in terms of the Schedule without calling upon the victim or his dependants to establish any negligence or default on the part of owner of the vehicle or the driver of the vehicle."
10. The finding in this regard that has been recorded by the Claims Tribunal is that the claimant himself was rash and negligent and on that account, the accident had occurred. The Insurance Company cannot be saddled with liability for the rash and negligent driving on the part of the claimant himself.
11. The decisions relied upon by the learned counsel for the appellants are clearly distinguishable and not applicable to the facts of the case. In [ENTITY] and anr. (supra) the claim for compensation was under
[SECTION] of the said Act. In paragraph 25 thereof, it has been observed that even if in the pleadings no specific claim was made out for grant of compensation, same has to be granted considering the spirit of [SECTION] of the said Act subject to a case under the provisions of law being made out.
In the present case, it has been found that no such case has been made out.
Similarly, the decision in [ENTITY] and ors. (supra) is with regard to proceedings under [SECTION] of the said Act. The present is a case arising under [SECTION] of the said Act. The decision in [ENTITY] (supra) proceeds on the basis that premium for personal accident cover had been paid. On that basis the proceedings were remanded for determining the quantum of compensation. In the present case, the policy at Exhibit-61 does not cover the risk in question. Hence, these judgments cannot come to the aid of the appellants.
From the aforesaid therefore, it cannot be said that the Claims Tribunal committed any error in rejecting the claim for compensation. The respondent No.1 cannot be saddled with the liability to pay compensation.
The first appeal stands dismissed. The judgment of the Claims Tribunal stands confirmed. There would be no order as to costs.
JUDGE [ENTITY]