The Oriental Insurance Co. Ltd. vs Smt. Mandabai Wd/o. Gajanan Dummawar & Ors.

. Heard.

The appellant- Insurance Company made an exception to the judgment delivered by the learned Motor Accident Claims Tribunal, Chandrapur, dated 03.07.2008, in M.A.C.P. No.198/2002. According to the appellant, the learned Tribunal failed to evaluate the evidence available on record and, thereby, without considering the factual and legal aspects involved in the matter, saddled the liabilities of payment of compensation to the appellant- Insurance Company, hence, seeks indulgence in the present appeal.

The present appeal is admitted by this Court long back in the year 2010 by order dated 27.09.2010. The record shows that notices on merit were duly served on all the respondents in the matter. However, on behalf of respondent No.1 and 2, no one appeared in the matter. Advocate Shri Subhash Hirekhan has put his appearance for respondent No.3. However, since last 2 to 3 dates, no one appeared on behalf of respondent No.3.

In the present appeal, the main contention of the appellant is that there is a fundamental breach of the policy and, therefore, the present appellant- Company is not responsible to pay the compensation as directed by the learned Tribunal.

The appellant has taken me to the terms and conditions of the policy (Exhibit 69) to state that, there was a specific mention in the policy that the sitting capacity is ‘zero’ and the vehicle cannot be used for the carriage of passengers for hire or reward. These conditions are mandatory in nature and violation of the same is fundamental in nature, but same was not taken into consideration by the learned Tribunal.

The appellant, to substantiate his submission, has pointed out that on 20.09.2002, the deceased in the capacity of coolie was travelling in tractor. He was proceeding in the tractor for coolie work, which was attached to the trolley for immersion of the idol of Lord Ganpati, an accident took place while returning from immersion of the idol of Lord Ganpati. It is further contended that the said tractor with trolley had taken on hire by Bal Ganesh Mandal Chinchala. Hence, according to the appellant, this fact itself demonstrated that there was a breach of the terms and conditions of the policy.

In view of this submission, I have gone through the evidence, which was recorded before the Claim Tribunal. The claimant, while deposing her case, has admitted the fact that the deceased was travelling in the capacity of coolie on the tractor and said tractor was used on the day of accident i.e. 20.09.2002 for immersion of idol of Lord Ganapati. According to this witness, the driver of the tractor was driving the vehicle in speed and it jumped into a pit, owing to which, deceased fell down from the tractor and sustained injuries and later on expired. In the cross-examination, this witness also admitted the fact that after immersion of the idol of the Lord Ganpati, 15 to 20 persons were coming from that tractor trolley and in those 15 to 20, the deceased was one of the persons.

Before the Claim Tribunal, the independent witness was examined namely Suresh Mohurle. This person was also one of the person who was travelling in the same tractor on the day of accident. This witness had categorically admitted the fact that there was a tractor with trolley which was brought on hire for the purpose of immersion of the idol of Lord Ganapati. He also admitted that 15 to 20 persons including him, who had been sitting in the trolley. He also categorically admitted the fact that the tractor with the trolley was taken on hire by Bal Ganesh Mandal Chinchala.

Before the Tribunal, owner of the vehicle was also examined namely Shantabai Pundlik Lade. She has attempted to take a defence that offending vehicle was sold out by her before the date of accident and in support of that, she has also relied upon the evidence of Bala Anandrao Yenpreddiwar. But she failed to establish on record that on the date of accident, the ownership of tractor and trolley was shifted to other person.

It is pertinent to note that in the present matter before the Tribunal, the Insurance Company has examined its Senior Assistant Officer namely Rajesh Pimpale. In his evidence, he has categorically stated that as per the terms of the policy, it covers the third-party liability, personal accident of the owner only. The terms and conditions of the policy are mandatory in the matter.

In light of the above evidence, the learned Motor Accident Claims Tribunal proceeded to decide the appeal on its own merits. According to the appellant, in view of this evidence placed on record, it is crystal clear that there was a violation of conditions stipulated in the Insurance Policy (exhibit 69). It is stated by the appellant that the violation at the instance of owner and driver is of a fundamental nature and, therefore, the Insurance Company cannot be held responsible for the payment of compensation as directed by the learned Tribunal.

In support of his submission, appellant has relied upon the following judgments:

The appellant to substantiate his submission has mainly relied upon the judgment of the Coordinate Bench in case of United India Insurance Co. Ltd. Vs. Anubai Gopichand Thakare and others (supra), wherein this Court observed in paragraphs 18 and 19 as under:

In light of the submission made by the appellant, I have gone through the findings recorded by the learned Tribunal in the matter. The bare perusal of the impugned judgment shows that the learned Tribunal has not appreciated the submission of the appellant only on the ground that the Insurance Company did not enter into the witness box to prove their case independently on the aspect of breach of policy and, therefore, held that the Insurance Company is equally responsible and thereby directed to pay the compensation as awarded by the learned Tribunal.

In the background of above said factual as well as legal position, the perusal of the evidence, which was recorded before the Tribunal, demonstrated the fact that on the day of accident, dated 20.09.2002, the deceased was travelling in a tractor and said tractor was taken on hire by Bal Ganesh Mandal, Chinchala for the purpose of immersion of the idol of Lord Ganpati. In the truck and trolley, near about 15 to 20 persons including deceased was travelling. Therefore, prima facie, there is a violation of the terms and conditions of the Insurance Policy.

The question arose before me whether this breach would amount to a fundamental breach or not. For this purpose, I have gone through the Insurance Policy (Exhibit-69). The contents of the policy specifically show that the sitting capacity in the tractor was ‘zero’. Under the clause of limitation, it is specifically stated that, the use of the tractor for the carriage of passengers for hire or reward is prohibited. The record nowhere shows that trolley involved in the accident was duly insured. The only document is on record towards the policy of the offending vehicle is Exhibit 69. Prima facie, if the sitting capacity in the tractor is recorded as ‘zero’ and there is a limitation to use the offending vehicle for the carriage of passengers for hire or reward, according to me, it amounts to a fundamental breach of the policy. This view is supported by the judgment of this Court in Co-ordinate Bench in the case of United India Insurance Co. Ltd. Vs. Anubai Gopichand Thakare and others (supra), wherein this Court held in paragraph 11 as under:

Hence, for the aforesaid reasons, I find that from the evidence made available on record, it is established on record beyond doubt that tractor was used in violation of the terms and conditions of the policy and, therefore, same should be treated as a fundamental breach of the policy.

In light of the above observation, I am of the opinion that the interference of this Court is necessary in the matter. Hence, I proceed to pass the following order.

The First Appeal is disposed of accordingly. No order as to the costs.