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Judgment
Heard learned Advocate Shri.Mehta for Appellant and learned Advocate Ms.Poonam Mittal for Respondent No.6.
First Appeal is taken on board.
The Motor Accident Claims Tribunal–Thane (“Tribunal”) as per the Award dated 29th June 2013 has directed the Respondent Nos.1to 4 to pay the amount of Rs.5,02,000/- (Rupees Five Lakh Two Thousand) along with other benefits. The responsibility on the Original Respondent Nos.2 and 4 is equal. The Respondent No.2 is before this Court being an Appellant.
The deceased along with his friend was proceeding on one motorcycle bearing No.MH-03/L/1010 on 6th June 2006 from Vada to Bhiwandi. At that time, another motorcycle bearing No.MH-04-CQ-3715 owned by original Respondent No.4 came from opposite direction from Bhiwandi and by overtaking the truck. During that exercise, that motorcycle driver lost control and gave dash to the motorcycle on which the deceased was a pillion rider. The offending motorcycle was insured with the original Respondent No.4–New India Assurance Co. Ltd.
The Claimants are the heirs of the deceased Dwarkanath. The Original Respondent No.1–Rupesh Raghunath Bhoir is the owner of the motorcycle who has given a dash and it was insured with the New India Assurance Co. Ltd. i.e. the Original Respondent No.4. Whereas the Original Respondent No.3 is the owner of the truck and it was insured with the present Appellant i.e. Original Respondent No.2– United India Insurance Co. Ltd.
After the evidence, the Tribunal has held the driver of the truck as well as the driver of the motorcycle bearing No.MH-04-CQ-3715 as responsible for the accident. Learned Advocate Shri.Mehta submitted that after considering the evidence, the liability cannot be fastened on the truck driver and on the Insurance Company because the evidence does not suggest that he was responsible. Further argument is advanced that the driver of the motorcycle has not entered into the witness–box. He submitted that instead of holding driver / owner of truck responsible, the Tribunal ought to have held the deceased and driver / owner of offending motorcycle.
After considering the evidence, I find the Tribunal has properly appreciated the documentary evidence adduced through Surekha Thorat, the wife of the deceased. It includes the copy of the F.I.R. which was registered against the motorcycle coming from the opposite direction. The Original Respondent No.2 has examined one Gajanan Nandgaonkar and Vitthal Nandanwar. It is on the point of driving license of the driver of the truck. However, the absence of license could not be proved. The learned Tribunal in paragraph No.18 has observed that the evidence on the point of breach of terms of policy is not believable.
The Claimant Surekha–wife of the deceased has given evidence. So also, they have examined Faiyyaz Ahmed. The FIR is registered against Kamlakar Madhavi who is the driver of offending motorcycle. The Appellant has examined Gajanan Nandgaonkar and Vitthal Nandanwar. Driving license of driver of truck was issued to Ramnath Kamleshwar. There was plea taken about breach of policy of the insured truck that is Original Respondent No.3. This Court finds the Tribunal has given more weightage to the evidence of Faiyyaz Ahmed. Because he is eye witness. Burden to prove breach of policy is on Insurer / Appellant. Mere breach is not important. It should be fundamental.
Considering the above discussion, I find no reason to interfere in the findings and hence, the Appeal is dismissed.
The statutory deposit along with the interest be transferred to the Tribunal. The Tribunal to disburse the amount of compensation to the Claimants as per the Award.
Pending Applications, if any, also stand disposed of.