1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR First Appeal No. 1007/2009 The New India Assurance Company Ltd. thr. its Branch Manager, Datta Chowk, Yavatmal, presently thr. its Chief Regional Manager, Regional Office, 4th Floor. Dr. Ambedkar Bhawan, MECL premises, Seminary Hills,Nagpur. APPELLANT ...VERSUS... 1. Smt. Pramila w/o Sunil Bhore, aged about 35 years. 2. Sunil Ramkrishna Bhore, aged about 40 years. Both r/o Ghatanji, Dist. Yavatmal 3. Mahesh Dwarkadasji Agrawal, aged 41 years, r/o Ghatanji, Dist. Yavatmal. RESPONDENTS -------------------------------------------------------------------------------------------------- Mr. Gautam Chatterjee, Advocate for appellant. -------------------------------------------------------------------------------------------------- CORAM: R. K. DESHPANDE, J. DATE : FEBRUARY 23, 2010. P. C. 1. This is an appeal filed under Section 173 of the Motor Vehicles Act, 1988 challenging judgment and award dated 12.09.2008 passed by Motor Accident Claims Tribunal, Yavatmal in Claim Petition No. 313/2005. By this judgment and award, the appellant-Insurance Company along with owner of the vehicle is held liable to pay jointly 2 and severally an amount of Rs. 2,70,000/- inclusive of the amount of No Fault Liability, if any, paid under Section 140 of the Motor Vehicles Act with interest at the rate of 9% p.a. from the date of petition till its deposit. Respondent no.3-Mahesh Dwarkadasji Agrawal is owner of Tata Truck No. MH-29/9605 whereas respondent nos. 1 and 2 are claimants. The facts leading to the case are as under. 2. Respondent nos. 1 and 2, the parents of deceased Shrikant Sunil Bhore, filed Claim Petition No. 313/2005 under Section 163-A of the Motor Vehicles Act, 1988 before the Motor Accident Claims Tribunal, Yavatmal. It was alleged that on 03.08.2005, their son Shrikant was travelling from village Bela to Ghatanji by Tata truck bearing No. MH-29/9605 as a Coolie. At around 5.30 p.m. the said truck turned turtle between village Sakhi and Umri due to mechanical fault, as a result of which, Shrikant sustained injuries and ultimately succumbed to it. It was alleged that the said truck was owned by respondent no.3-Mahesh Agrawal and deceased Shrikant was travelling in the said truck as Coolie employeed by owner of the truck on monthly wages of Rs.3,000/- per month. It was alleged that the vehicle in 3 question was insured with the appellant/Insurance Company and hence the claim was made for compensation of Rs. 4,60,500/- with interest at the rate of 18% p.a. from the date of accident till its realisation. 3. The owner of the vehicle-respondent no.3 herein filed his written statement at Exh.-21, accepting that the deceased Shrikant was travelling in the vehicle as Coolie and died as a result of the said accident. It was the stand taken in the written statement that the accident occurred due to mechanical fault in the vehicle. The appellant/Insurance Company filed its written statement at Exh.-16. It was denied that deceased Shrikant was doing Coolie work and was employeed on monthly salary of Rs. 3000/- and that he was travelling in the said truck from Bela to Ghatanji. It was admitted that the truck was insured with the appellant-Insurance Company and stand was taken that there was breach of policy as the driver of the said truck was not holding a valid driving license. 4. The claimant produced on record copy of the First Information Report Exh.-31, Post Mortem Report Exh.-32 and Motor 4 Driving License at Exh.-36. Claimant no.1-Sau. Pramila, mother of the deceased examined herself and she was also cross-examined by owner of the vehicle as well as by Insurance Company. The Insurance Company filed pursis dated 22.08.2008 at Exh.-39 stating that it does not want to adduce any evidence. 5. The Motor Accident Claims Tribunal decided the claim petition by its judgment and award dated 12.09.2008 holding that the deceased Shrikant Sunil Bhore died on account of use of motor vehicle Tata Truck No. MH-29/9605. It was held that the deceased Shrikant was working as Coolie on the said vehicle and at the time of accident, he was the occupant in the said truck. It was further held that the vehicle was insured and the policy of insurance was valid on the date on which the accident occurred i.e. on 03.08.2005. The Tribunal has held that the appellant-Insurance Company and the owners of the vehicle jointly and severally liable to pay a sum of Rs.2,70,000/- inclusive of amount of no fault liability, if paid under Section 140 of the Motor Vehicles Act along with interest at the rate of 9% p.a. from the date of its delivery till realisation. 5 6. Mr. Chatterjee, learned counsel for the appellant, has urged that there is no evidence placed on record by the claimants to show that the deceased was travelling in the vehicle as Coolie and the employeed by owner of the vehicle at that time of accident. He further submitted that neither the First Information Report nor the Spot Panchanama produced on record indicated that the deceased was travelling in the vehicle as an employee-Coolie. He urged that the Tribunal simply relied upon the bare statement of the mother of the deceased that the deceased was working as Coolie on the said vehicle. He further urged that the vehicle was being driven by claimant no.2, father of the deceased and he carried his son as passenger in the vehicle. He further urged that claimant no.2-father was driving the vehicle, has not examined himself and hence the Tribunal has erred in holding that the deceased was travelling in the vehicle as Coolie. 7. With the assistance of learned counsel for the appellant, I have gone through the entire record. It has been specifically pleaded in the application under Section 163 (A) of the Motor Vehicles act that the deceased was travelling in a vehicle as Coolie and was employed with 6 owner of the vehicle, who is respondent no.3 herein. Though the said fact has been denied by the Insurance Company by filing the written statement, it was not the ground raised that the deceased was travelling in a goods vehicle as gratuitous passenger or fare paying passenger and thus there was a breach of condition of policy. The ground raised regarding breach of policy was that the driver of the vehicle was not holding the valid driving license. The Insurance Policy is produced on record and is marked as Exh.-34. The policy indicates that it is for goods carrying commercial vehicle and a premium of Rs. 150/- was paid to cover the risk of six passengers. The policy was in force on the date of occurrence of the accident. 8. It cannot be disputed that the burden is upon the insurance company to plead and prove that there was a breach of policy condition on the ground that the deceased was travelling as gratuitous passenger or fare paying passenger in the vehicle in question. Assuming that the said stand can be gathered from the written statement, the Insurance Company has failed to establish the same by leading the oral and documentary evidence. Mere fact that the document produced on 7 record namely First Information Report at Exh.-31 and Spot Panchanamat at Exh.35 nowhere indicate the that the deceased was travelling in the vehicle as Coolie or an employee of the owner of the vehicle, that does not absolve the Insurance Company from leading the evidence to establish its defence. In order to establish its defence, the Insurance Company must stand on its own legs and it cannot take shelter of weakness in claimants evidence. The appellant-Insurance Company has thus failed to establish its defence and there is no evidence on record to show that the deceased was travelling in the vehicle as gratuitous or fare paying passenger. Hence, the findings recorded by the Motor Accident Claims Tribunal cannot be faulted with. 9. Mr. Chatterjee, learned counsel for the appellant sought permission of this Court to challenge the findings recorded by Tribunal in respect of quantum of compensation. The Insurance Company had filed an application Section 170 of the Motor Vehicle Act on 11.08.2008 at Exh.-27. However, it has failed to press the same to obtain any orders from the Tribunal on the said application as a result the said application is deemed to have been rejected. It has not obtained 8 permission to cross-examine witness on the question of compensation. In view of this, the appellant Insurance Company cannot be permitted to raise these grounds of challenges. 10. Mr. Chatterjee further relied upon judgment of the Apex Court in Oriental Insurance Co. Ltd. ..vs.. Syed Ibrahim & ors.; 2007 LL SCR 2764 and Kaushlya Devi ..vs.. Karan Arora & ors.; 2007 AIR SCW 3424 and urged that the quantum of compensation in the case of death of the infant child would not exceed Rs. 50,000/- and the compensation in respect of death of 14 years old boy would not exceed Rs. 1,00,000/-. I have gone through both the judgments. Since, in the present case, there is no permission granted under Section 170 of the Motor Vehicles Act, the question of considering these judgments does not arise. 11. Mr. Chatterjee, learned counsel for the appellant, has further urged that the matter be remanded back to the Tribunal for permitting the Insurance Company to raise the proper defence and lead the evidence to establish the same. However, it is apparent that the 9 Insurance Company has not taken a specific stand about the breach of the terms of the policy on the ground that the deceased was travelling in the vehicle as fare paying passenger or gratuitous passenger and the Insurance Company has filed the pursis at Exh.-39 stating that it does not want to lead any evidence. It has failed to avail opportunity. In view of that I do not find any reason to remand the matter back to the Tribunal for reconsideration. 12. In the result, there is no substance in the appeal. The same is, therefore, dismissed. 13. Mr. Chatterjee, learned counsel for the appellant, at this stage has pointed out that Rs.3,20,778/- has been deposited in the Tribunal by the appellant/ Insurance Company. Apart from that, he submitted that the amount of Rs. 25,000/- towards statutory deposit has been deposited in this Court on 25.02.2009 and prayed that the appellant be permitted to withdraw an amount of Rs. 25,000/- along with interest accrued thereon. So far as withdrawal of the amount of Rs. 25,000/- towards statutory deposit is concerned, the appellant- 10 Insurance Company, can be allowed to withdraw the same along with interest accrued thereon. So far as the entire decreetal amount deposited in the Tribunal is concerned, Mr. Chatterjee, learned counsel submits that the stay for withdrawal of amount by claimant should be granted for a period of 4 weeks from today to enable him to challenge this judgment. The request is accepted and following order is passed:- (a) The appellant is permitted to withdraw an amount of Rs. 25,000/- with interest accrued thereon till date. (b) There shall be stay to withdrawal of amount of Rs.3,20,778/- for a period of four weeks from today. (c) After expiry of four weeks from today, the claimants may move an application for withdrawal of amount of Rs. 3,20,778/- with interest accrued thereon and Tribunal shall pass an appropriate order, in accordance with law. JUDGE kahale