Divisional Officer, Reliance General Insurance Co. Ltd. vs Murlidhar Dayaram Sapkale & Ors.

None for respondent Nos. 1 to 3 in spite of service of notice. The appeal is already abated against respondent No.5 hence proceed ex-parte against respondent Nos. 1 to 3.

Heard learned counsel for the appellant.

Appellant/insurer takes exception to the Judgment and Award dated 28.02.2023 passed in M.A.C.P. No. 116 of 2015 essentially on the ground that the Tribunal has committed an error in not accepting the case of the insurer about the offending Truck carrying passengers on payment of fare which amounts to breach of conditions of the insurance contract. It is also claimed that there is negligence on the part of the driver of the other offending vehicle and hence the Tribunal ought not to have fastened the liability of the payment of compensation on the owner and insurer of the truck. On quantum, it is sought to be contended that the claimants have failed to prove the income as well as medical expenses and the compensation granted to the claimants on account of sustainment of permanent partial disability is on the higher side.

Learned counsel for the appellant submits that in the written statement specific plea has been raised by the insurer with regards to the denial of the liability of the payment of compensation on the ground of negligence of the offending truck so also the breach of the terms of policy. Learned counsel for the appellant sought to convince this Court on the basis of insurance policy indicating that the truck in question was a goods carrier vehicle wherein the transportation of passenger was prohibited. It is submitted that, the quantum of compensation as decided by the Tribunal is on the higher side and the evidence on record does not support the same.

Though it is a matter of fact that in the written statement specific plea is raised by the insurer with regard to the breach of conditions of policy on the ground that the passengers are being carried in the truck. Even though the officer of the insurance company is examined, his evidence is not sufficient to hold that these passengers were carried on payment of fare. The burden would be on the insurer to prove the breach of terms and conditions of the policy. In absence of any candid evidence to that respect, it cannot be held that there is a breach of terms of policy.

In so far as negligence in the occurrence of the accident is concerned, learned Tribunal in paragraph-28 of the impugned Judgment has taken into consideration the evidence on record which indicates that the truck was parked on the wrong side of the road. This fact itself is more than sufficient to attribute negligence solely to the the driver of the truck.

On the point of quantum, claimants examined himself, so also led evidence of doctor in order to prove the disability. The burden on claimants to prove the claim is on probability. It cannot be said that the findings recorded by the Tribunal are without evidence in order to cause interference therein. In view of above, appeal stands dismissed since sans merits.

In view of the above, following order: