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Judgment
,,,,,
Heard. Admit. With the consent of the parties, the appeal is taken up for final disposal at the stage of admission.",,,,,
This is an appeal by original respondent No. 5 Â Insurance Company against the judgment and decree of compensation of Rs. 27,28,000/Â with",,,,,
interest at the rate of 7.5% p.a. passed u/s 166 of MV Act by ld.Member, MACT, Dhule on 16.10.2016 in MACP No. 5/2012 in favour of",,,,,
respondents No. 1 to 4 herein, both on the ground challenge to the quantum as well as fixing the liability on the appellant/Insurance Company.  Â",,,,,
The accident involved two vehicles. DeceasedÂRahul was travelling in a MAX bearing No. MHÂ20/YÂ8070 owned by original respondent No.,,,,,
4 â€" Mr. Bargal. Another vehicle was Milk Tanker having No. GJÂ05/MÂ5897 owned by respondent No. 1, driven by respondent No. 2. The",,,,,
tanker was insured with United India (Orig. RÂ3) while the Jeep was insured with Shriram General Insurance (Orig. RÂ5). In an appeal, the",,,,,
original respondent No. 5 has become the appellant, while original respondent Nos. 1, 2, 3 and 4 have become respondents No. 4, 5, 7 & 8 and original",,,,,
claimants have become respondents No. 1 to 4. The original claimants Rekha, Kiran, Soniya & Rajashri are widow, son and two daughters, then",,,,,
aged 31, 9, 7 and 4 years, respectively. For the sake of convenience, the parties are hereinafter referred to as per their original status in the trial",,,,,
Court.Â,,,,,
Shri. Chapalgaonkar, learned counsel for the appellant challenged the judgment and decree on following grounds.",,,,,
(i) The vehicle of respondent No. 8 insured with the appellant as a private vehicle was not meant for public transport. The FIR which is admitted by,,,,,
the parties and relied by the claimant shows that the said vehicle was used as a public transport vehicle carrying more than 12 passengers.Â,,,,,
(ii) The FIR was filed for various offences including one u/s 166/192 of Motor Vehicles Act relating to illegal transport of passenger. There was,,,,,
thus breach of condition and, therefore, the Insurance Company was not liable to indemnify respondent No. 8. In this regard, he relied on the",,,,,
judgment in Oriental Insurance Co. Ltd. V/s. Premlata Shukla and Ors., reported in 2007 AIR SCW 3591.",,,,,
(iii) He also argued that, as far as quantum is concerned, the learned Tribunal has not deducted income tax from the income of the deceased and has",,,,,
awarded Rs. 2,25,000/Â under the conventional heads but as per the latest judgment of full bench of Five Judges in National Insurance Company Ltd.",,,,,
vs. Pranay Sethi reported in AIR 2017 (16) SCC 680, this amount will have to be reduced to Rs.70,000 and there shall be no compensation under the",,,,,
head of loss of love and affection. He relied on Bajaj Allianz General Insurance vs. Deoram Jadhav reported in 2018(2) Mh.L.J. 101, wherein it is",,,,,
observed,",,,,,
On the touchstone of aforesaid legal guidelines, it is crystal clear that the plying of vehicle without valid permit is the violation of terms and",,,,,
conditions of contract of Insurance Policy. Obviously, the appellant Insurance Company has a statutory right to raise such defence by invoking",,,,,
provisions under sections 149 (2) of the Act of 1988. In case it is established that there is breach of condition of the Insurance Policy, the Insurance",,,,,
Company is not liable to indemnify the insured for the loss caused following vehicular accident.,,,,,
Mr Chapalgaonkar relied on the judgment of the Apex Court in the case of P. V. George vs. State of Kerala reported in AIR 2007 SC 1034, on the",,,,,
doctrine of prospective overruling to submit that the law declared by the court will have retrospective effect if not stated to be so specifically.Â,,,,,
Per contra, Shri. J. P. Reddy, learned counsel for respondent No. 8ÂJeep owner drew my attention to the admission of witness of the appellant",,,,,
that, it was a comprehensive policy covering risk of 1+9 passengers. In this regard, he relied on the judgment in Sagarchand Jain vs Santosh Gupta",,,,,
of Delhi High Court dt. 10.01.1985. Quote para 7. He therefore submitted that the ownerr of Jeep will have to be indemnified by the appellant as,,,,,
there was no breach of policy. He also argued that there is no evidence to show that the jeep was used for hire or reward. He and Mr Mukund,,,,,
Wagh, learned advocate for respondents No. 1 to 4Âthe claimants supported the judgment claiming that the learned Member of the Tribunal has",,,,,
considered all the evidence and legal position in proper perspective and there was documentary evidence in the form of income tax returns showing,,,,,
the income. Hence, there is no reason to interfere with the judgment of the trial Court. he also argued that, the judgment in Pranay Sethis case",,,,,
was delivered on 31.10.2017 and the learned Member of the Tribunal has delivered the judgment on 16.10.2014 as per the interpretation of the law,,,,,
prevailing at the relevant time. Therefore, there cannot be any interference in the quantum of compensation awarded in view of the subsequent",,,,,
change in the view of the Supreme Court.Â,,,,,
The points for my consideration with my findings thereon are as follows:,,,,,
(i) Whether the appellant (original respondent No. 5) has proved breach of policy by respondent No. 8 thereby exonerating the appellant from,,,,,
indemnifying him?Â,,,,,
…...Not proved.,,,,,
(ii) Whether the compensation awarded is excessive?  Â,,,,,
  ....Yes.,,,,,
(iii) What order?  ....The appeal is partly allowed.,,,,,
REASONS,,,,,
Learned advocate Shri. Chapalgaonkar referred para Nos. 1and 2 of his written statement, wherein the breach of policy (i) the driver was not",,,,,
holding legal and valid driving license (ii) use of the vehicle for fair paying passenger are pleaded (iii) he relied on the copy of FIR dt. 29.10.2011 Exh.,,,,,
24 lodged by ASI Nimbhore. It discloses that, one Deepak Patil gave information to ASI Nimbhore that, 10Â12 persons were sitting in MAX",,,,,
jeep at Surat Vadodara Choufuli and, thereafter, the accident took place between Sakri to navapur. The FIR also discloses that, in the accident,",,,,,
three persons died and 11 were injured whose names are disclosed. It is also stated by ASI Nimbhore that, deceased Dnyaneshwar without holding",,,,,
permit for passenger transport was lillegally carrying pasengers from Surat to Sakri. The FIR shows that, the crimes were registered against both",,,,,
the drivers of both the vehicles for offences u/s 304ÂA, 279, 337, 338, 427 184, 134, 177, 66 & 192 of MV Act. He submitted that, offences u/s 66",,,,,
and 192 are for illegal transport of passengers without permit. Copy of the policy is at Exh. 52. It lays down limitations as to use as follows.,,,,,
.    The policy covers use of the vehicle for any purpose other than a) Hire or Reward b) Carriage of goods (other than samples or personal,,,,,
luggage) c) Organization racing d) pace making e) Speed testing f) Reliability Trials g) Any purpose in connection with Motor Trade, etc.",,,,,
Mr Chapalgaonkar submitted that, the insured jeep was used for carrying the passengers for hire or reward in breach of the terms and conditions of",,,,,
the policy and, therefore, the insured was not entitled for coverage by the insurer.Â",,,,,
The evidence of Mahesh Konde, employee of the appellant, shows that he admitted that the policy was comprehensive policy covering the risk of",,,,,
nine passengers and one drive.Â,,,,,
Mr Chapalgaonkar rleied on the judgment in the case of Premlata Shukla (supra). Though the proceedings before the Tribunal are summary in,,,,,
nature and strict rules of evidence are not applicable, it is well settled that once it is established that the vehicle involved in the accident was duly",,,,,
insured with the Insurance Company, the burden is on the Insurance Company to show that they are not liable to indemnify the insured on account of",,,,,
Sr.
No.","Financial
Year","Income
shown","Income Tax &
Professional
Tax",Net income,Exhs.
1,2008Â09,"Rs. 1,42,484/Â","Rs. 4120/Â &
Rs. 2500/Â","Rs.
1,35,864/Â",40 & 41
2,2009Â10,"Rs. 1,58,643/Â","Rs. 5432/Â &
Rs. 2500/Â","Rs. 1,50,711/Â",42
3,2010Â11,"Rs. 1,54,852/Â","R s . 3138/Â &
Rs. 2500","Rs. 1,49,214/Â",45