IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.146 of 2009 1. CHANDRA KALA DEVI, W/o. Rampukar Ram age – 23 years. 2. Jailesh Devi, W/o. Ramshobhit Ram, age 52 years. 3. Ram Shobhit Ram, Son of Late Nanipat Ram, age – 55 years. 4. Akhilesh Kumar, S/O. Ram Kumar Ram, age 1-1/2 years (Appellant No. 4 is minor and is living under the Guardianship of Mother). All resident of village – Madaripur, P.S. – Minapur, District – Muzaffarpur, at present add. Village – Ghosaut, P.S. – Shivaipatti, Distt. – Muzaffarpur. …….. Claimants / Appellants. Versus 1. Sri BINOD KUMAR RAI, Son of Sri Jai Narayan Roy, resident of village – Bagahi Gosnagar, P.S. – Runisaidpur, District – Sitamarhi. 2. The Divisional Manager, The Oriental Insurance Company Ltd. Motijheel, P.S. – Town, Dist. – Muzaffarpur. ….. Opp. Parties / Respondents. ----------- 5. 24.09.2010 Heard leaned counsel for both the parties. This miscellaneous appeal is directed against the order dated 19th November, 2008 passed by the Additional Motor Vehicle Accident Claim Tribunal 5th, Muzaffarpur in Claim Case No. 10 of 2006 with a direction to pay compensation of Rs.1,25,650/- to the applicants with interest @ 6% per annum. The claimants are the appellants. The claimant filed a petition for compensation on the ground that one Ram Pukar Ram died in road accident on 25.12.2004 by falling from the roof of the minibus bearing Registration no. B.R. 06D 4340 and was crushed under the rear wheel of the bus and died at spot and further the deceased was the rickshaw puller earning Rs.1500/- per month. Opposite party no. 1 is the owner and opposite party no. 2 is the insurer of the vehicle. The owner of the Bus did not appear. However, admitted the vehicle was insured subject to the term and condition and assert that the burden lie on the applicant to prove that owner is liable to pay the compensation and 2 further the deceased himself is equally responsible for the accident as cannot take the advantage on his own vehicle. On the pleadings of the parties seven issues were framed, which are as follows:- (i) Whether claim case as framed is maintainable? (ii) Whether accident took place due to rash and negligent driving by the driver of Minibus No. B.R. 06D 4340? (iii) Whether Ram Pukar Ram died in road accident by rash and negligent driving of Minibus No. B.R. 06D 4340 for which Minapur P.S. Case No. 338 of 2004 was registered? (iv) Whether driver of vehicle No. B.R. 06D 4340 was possessed with valid driving license? (v) Whether claimants are entitled to get amount claimed? (vi) Whether Oriental Insurance Co. is liable to pay the amount of compensation? (vii) Whether applicants are entitled to get any other relief or reliefs? While deciding issue no. (ii) and (iii) it was held that Ram Pukar Ram died out of the rash and negligent driving of the driver of the vehicle, while traveling on the roof of the bus which is prohibited under the law and Insurance Company is not liable for the accidental death of the persons sitting inside the bus and the deceased died due to the rash and negligent driving of the driver of the minibus and further held while deciding issue no. 6 that the driver and conductor violated the term of the insurance policy and hence the Oriental Insurance Company is not 3 liable to pay any compensation and further held that the contributory negligence also on the part of the deceased and hence the owner of the vehicle is liable to the extent of 70% only. Learned counsel for the appellants, however, challenged the judgment and the finding recorded by the Tribunal that the accident took place due to rash and negligent driving by the driver and hence the Insurance Company is not liable to pay. Learned counsel for the appellants, however, contended that merely because the victim was traveling on the roof of the bus cannot be made responsible for contributory negligence nor is a substantial breach of policy that the insurance company shall escape the liability to pay the compensation to the third party i.e. claimant and has placed reliance upon a decision reported in 2006 ACJ 2778 and hence contend that the appellant is liable to get the claim from Insurance Company and Insurance Company is liable to pay. Learned counsel for the opposite party Insurance Company has contended that since the deceased was traveling on the roof of the vehicle and hence contributed in falling from bus and for the accident and has relied upon decision reported in 2004 (2) PLJR 426 and the travelling on roof of bus in a breach of condition. However, for breach of condition he is not liable to pay it has come in evidence that the victim was traveling on the roof of the mini bus and a finding also recorded accident took place due to rash and negligent driving of vehicle while deceased was traveling on the roof of the mini bus. However, no doubt that the accident took place that the deceased thrown out from roof of the bus and it is not a case that the bus 4 turned turtle or dashed with another object. However, on respective submission of the parties two points are emerges: - (i) Whether the deceased contributed in accident while travelling or not? (ii) Whether travelling on top of the bus is such a breach of condition as Insurance Company can be devoid of its liability to pay the compensation when there is no evidence. However, taking into consideration the fact that on first point that victim was travelling on the bus. The Khalasis asked the victim to go on the roof of the bus and while the victim was going on roof the driving drove the vehicle rashly and negligently at high speed and witness support this fact and the Tribunal take into consideration these facts the evidence on this point and held that claimant while going on the roof of bus at the command of Khalasi, the driver suddenly drove the vehicle with high speed as a result of which Ram Pukar Ram fell down so held the accident took place due to negligence of driver as well as act of victim who was compelled to abide by the going on roof. Hence, it can well be inferred negligence on part of the driver and Khalasis. However, the victim having been compelled to go on the roof and though he went to abiding the command of Khalasi to that extent can be said to have contributed. Taking into consideration the 2nd point the accident took place when victim was going on the Minibus and the Khalasi asked the victim to go on the roof and victim while abiding by the occurrence took place as driver suddenly drive the vehicle. However, for breach of condition there are two categories of cases one in which the owner violated the term and condition and other are cases which the driver and 5 Khalasi violated some norms without the knowledge of the owner. However, in present case there is no evidence or stand of insurance that owner had any role in the violation to compel the deceased to go on the roof. In case of violation by driver and Khalasi without the knowledge of owner are such breaches which cannot be said to be a fundamental breach that owner be deemed indemnification. It has been held in decision reported in 1996 ACJ 1178 that the misuse of vehicle was some what irregular though but not so fundamental in nature so as to put an end to the contract and the decision reported in 2006 ACJ 2778 has adopted the view after due consideration of 1996 ACJ 1178 & 1987 ACJ 411 which supports the view that insurance is liable to pay for such breaches. Hence, the finding recorded by the learned lower court that the Insurance Company is not liable to pay as the driver and conductor has violated the term and condition of the Insurance Company does not stand to reason and in view of the decision reported in 2006 ACJ such a violation will not constitute substantial breach on the part of the owner as the Insurance Company is not liable to pay or to effort ground to the insurer unless there were some factors which contributed to the causing of the accident and hence merely because the some of the persons got on the roof of the bus is no ground to the disclaim to deny and indemnify and hence I find and hold that the Insurance Company is liable to pay. Since the occurrence took place while the victim was going on the roof of the bus and hence contributed to the negligence and I find and hold that the finding recorded by the Tribunal holding that the owner is responsible for 70 % and hence Insurance Company is liable to 6 pay. However, since the Tribunal held that the contributive of the victim is 30% and rest 70% to the owner and in consequence the Insurance Company is ordered to pay Rs.1,25,650/- with 6% interest from the date of the petition and hence the appeal is allowed. Kundan (Gopal Prasad, J.)