1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD 7. FA/1323/2009 With CA/5299/2005 In FA/1323/2009 _______________________________________________________________ Office Notes, Office } Memoranda of Coram, } Court's or Judge's orders appearances, Court's } orders or directions } and Registrar's orders } ___________________________}___________________________________ Mr. S.V. Kulkarni, Advocate for appellant. Mr. Shripad Kulkarni, Advocate for respondents no.1 to 7. [CORAM : K.U. CHANDIWAL, J ] Date : 29th March, 2010. PER COURT : 1 Heard Mr. S.V. Kulkarni and Mr. Shripad Kulkarni for the respective parties. 2 First appeal is heard finally at admission stage. 3 The deceased travelled with her husband, at her age of 45 years, in already loaded truck with iron bars, 2 from Aurangabad destined to Nasik. She had unfortunate death in the accident. It was asserted that she being a labour, was having monthly earning of Rs.2,000/-. The claim was for Rs. 2,00,000/-. 4 The learned judge, accepted the pleadings of the claimant – the husband and minor children, awarded Rs. 1,05,000/- with interest @ Rs.9% against respondents in the petition which includes the present appellant. 5 The grievance of the appellant insurance company is, the travelling of the deceased or the claimant in the truck at the material time was not recognized by the Insurance policy. If the stand taken in pleadings and evidence is browsed, it is apparent that a lug is created, the message that has been conveyed is, the claimant paid Rs. 20/- to the driver of the truck as individual passenger for going to the destination. The observations of the 3 learned judge in this regard, in para 5 more lean to the surmises than to act upon it. The learned judge should not have computed that the travel of the claimant or his wife could be for a short duration, divorced from any positive evidence / record. 6 The insurance company’s stand of obliteration of insurance policy having been surfaced nakedly, could not have advanced to award against it. 7 In the result, the appeal succeeds to the ex tent of appellant insurance company. It is allowed. The claim against owner or other respondent remain unaltered. C.A. disposed of. The amount deposited by the insurance company be remitted. [K.U. CHANDIWAL, J.] tsk/fa1323.09