1 fa376,377,378.sxw ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO.376 OF 1998 United India Insurance Co.Ltd. ...Appellant vs. 1 Mr.Antoni Mingel Rodrigues 2 Mr.John Mingel Rodrigues 3 Miss Ranja Mingel Rodrigues 4 Mrs.Vazine Jonny Manache 5 Mrs.Rezina Alex Dhake 6 Mrs.Kosav Ancelem Vaitty 7 Rahim Bismillah Khan 8 M/s.Star Line Transport 9 New India Assurance Co.Ltd. ...Respondents FIRST APPEAL NO.377 OF 1998 United India Insurance Co.Ltd. ...Appellant vs. 1 Smt.Narmada Laxman Mhatre 2 Rahim Bismillah Khan 3 M/s.Star Line Transport 4 New India Assurance Co.Ltd. ...Respondents ALONG WITH FIRST APPEAL NO.378 of 1998 United India Insurance Co.Ltd. ...Appellant vs. 1 Prasad Raghunath Khanvilkar 2 Rahim Bismillah Khan 3 M/s.Star Line Transport 4 New India Assurance Co.Ltd. ...Respondents Mr.S.R.Singh for the appellant in all the appeals Mr.G.S.Hegde with Mr.C.M.Lokesh for respondent no.1 in F.A.No.377/1998, for respondent nos.1 to 6 in F.A.no. 376/1998 and for respondent nos.1 and 2 in F.A.no. 378/1998 2 fa376,377,378.sxw CORAM :A.S.OKA,J. DATE : OCTOBER 7, 2010 ORAL JUDGMENT : 1 These appeals are being disposed of by a common Judgment and order as the appeals arise out of three different claims for compensation which have been decided by a common Judgment and Award. The appellant insurer has been impleaded in the claim petitions in the capacity as insurer of Tempo no.MXY 1284 which was involved in the accident. The case made out by the claimants is that for visiting the holy places the said tempo insured with the appellant was engaged. The accident occurred on 13th May 1987 about 9.30 p.m. on Bombay Pune National highway. The said tempo dashed to the rear side of the truck no.MWU 3451 which was allegedly parked in the middle of the road contrary to the traffic rules. The owner and the insurer of the truck were also impleaded as parties. The tribunal while passing the impugned Judgment and Award held that the drivers of both the vehicles were negligent. A contention was raised by the appellant insurer that the insured committed breach of terms and conditions of the policy as he had given the tempo on hire. 2 The learned counsel for the appellant invited attention of the Court to the evidence of the claimant John Mingel Rodrigues in claim no.269 of 1987. He pointed out that a letter signed by his brother who was also one of the claimants was shown to the said witness and the witness identified the handwriting and signature of his brother on the said letter. He pointed out that in the said letter, one of the claimants admitted that the tempo was hired at the time of accident. He submitted that even the averments made in the claim petitions are 3 fa376,377,378.sxw very clear on this aspect and it is stated that the deceased and other persons had engaged the tempo for pilgrimage and for visiting the holy places. He submitted that the breach of the terms and conditions of the policy on the part of the insured is established. He pointed out that the Matador was registered as a private carrier and use of the vehicle for hire was in breach of the terms and conditions of the policy. 3 The learned counsel for the original claimants submitted that the appellant has relied upon the evidence of investigator. He submitted that no attempt is made by the appellant to examine the insured to prove that he had given the tempo on hire. He submitted that though one of the claimants may have admitted handwriting and signature on the letter at Exh.36, the fact that the tempo was hired is not established as the said person had no personal knowledge whether the tempo was hired. He submitted that the appellant did not discharge the burden of proving the breach of terms and conditions of the policy. He submitted that positive evidence ought to have been led to prove the breach. He submitted that in any event, the compensation amount can be recovered by the appellant from the insured. He therefore, submitted that no interference is called for with the finding recorded by the tribunal. 4 I have given careful consideration to the submissions. In the claim petitions filed by the claimants it is stated that the deceased and other persons were to go on pilgrimage and they were to visit holy places such as Pandharpur, Tulzapur etc. and for that purpose they have engaged the tempo insured with the appellant. 4 fa376,377,378.sxw 5 The claim petition no.269 of 1987 (subject matter of First Appeal no.376 of 1998) was filed by Mr.Antony Rodrigues and others claiming compensation on account of demise of their mother in the accident. It must be stated that a specific defence on this aspect was raised in paragraph 2 of the written statement of the appellant that the tempo was registered as a private carrier and that use of the tempo on hire was in breach of the terms and conditions of the policy. An issue was framed on the said aspect. In claim petition no.269 of 1987 2nd claimant John (son of deceased) entered the box. He was shown a letter dated 1st April 1988 allegedly signed by the first claimant Antony addressed to the Manager of the appellant. In the cross examination when the said letter was shown to him, he admitted that the letter was in the handwriting of his brother Antony and it was bearing his signature. Thus, the second claimant admitted that his brother had written the letter in his own handwriting. In the said letter, it was stated that the tempo was hired from Mulund on 13th May 1987 and was proceeding by Bombay Pune national highway and the same met with an accident. The second claimant was given a suggestion that the tempo was hired. He denied the correctness of the suggestion. However, he pleaded ignorance as to whether the tempo was a taxi. He did not come out with a case that tempo was a taxi. 6 The appellant examined one Mahendra Jeewraj Dhruwa who was appointed as a surveyor and investigator by the appellant. He proved the report submitted by him to the appellant in his evidence. It is true that the report may have hardly any evidentiary value but he also deposed that he recorded a statement of one of the claimants which is at Exh.26. He proved the statement of one Bhushan son of Balkrishna who again stated that the tempo 5 fa376,377,378.sxw was hired. 7 The most material piece of evidence is the letter at Exh.36 wherein the claimant no.1 in claim petition no.269 of 1987 admitted that the tempo was hired. The letter is admittedly in the handwriting and under the signature of the first claimant. The letter contains unqualified admissions that the tempo was hired. The claimants had an opportunity to explain admission by examining the first claimant. However, the first claimant was not examined. As pointed out earlier, the 2nd claimant pleaded ignorance as to whether the tempo was a taxi.The tempo was registered as a private carrier. 8 All these facts have to be considered in the context of the specific averments in the claim petitions that the deceased and other persons were desirous of going on pilgrimage and therefore, the tempo was engaged. 8 Thus, only conclusion which can be arrived at is that the appellant had proved the breach of terms and conditions of the policy. It must be stated here that the aforesaid evidence was before the tribunal. The tribunal has not at all appreciated the impact of the admission given by one of the claimants in the letter at Exh.36. In fact, the only conclusion which could have been arrived at on the basis of the admission contained in the letter at Exh.36 was that the tempo was hired. The tribunal has observed that the said Antony who made Exh.36 was not examined. This observation has been made by ignoring that the said Antony was the first claimant in the claim petition. It was for him to step into witness box and to explain the contents of the Exh.36. The tribunal has erroneously found fault for not examining Mr.Nagvekar who have allegedly hired tempo. 6 fa376,377,378.sxw Hence, this was a case where the issue no.5 ought to have been answered in favour of the appellant. Therefore, the awards will have to be modified. 9 Hence, I pass the following order : i) Claim petitions no.267, 270 and 269 of 1987 stand dismissed as against the appellant. Rest of the impugned Judgments and Awards are confirmed. ii)The appeals are partly allowed on above terms with no order as to costs. iii)The amounts deposited by the appellant in this Court under section 173 of the Motor Vehicles Act, 1988 are allowed to be withdrawn by appellant along with interest accrued thereon. JUDGE