First Appeal No. 27 of 2009. Case: Bajaj Allianz General Insurance Co. Ltd. Vs Ashwita Arvind Poll. High Court of Bombay (India)
| Case Number | First Appeal No. 27 of 2009 |
| Counsel | For Appellant: Emerico Afonso, Advocate and For Respondents: Sebastian Vales and S.M. Singbal, Advocates |
| Judges | U. V. Bakre, J. |
| Issue | Motor Vehicles Act |
| Judgement Date | December 16, 2014 |
| Court | High Court of Bombay (India) |
Judgment:
U. V. Bakre, J.
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Heard learned Counsel for the parties.
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This appeal is directed against the judgment and award dated 26.09.2008, passed by the learned Presiding Officer of the Motor Accident Claims Tribunal at Mapusa (M.A.C.T., for short), in Claim Petition No. 9/2006.
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The appellant was the respondent no. 3-insurance company; the respondents no. 1, 2 and 3 were the claimants and respondents no. 4, 5 were respondents no. 1 and 2 who were respectively the driver and owner of the offending vehicle. Parties shall hereinafter be referred to as per their status in the said claim petition.
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The claimants had filed the said claim petition under Section 166 of the Motor Vehicles Act, 1988 (M.V. Act, for short) for grant of total compensation of ` 18,00,000/- on account of death of the husband of the claimant no. 1 and the father of the claimants no. 2 and 3.
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Case of the claimants, in short, was as follows:-
The husband of claimant no. 1 and father of claimants no. 2 and 3, namely, Arvind Poll, aged 47 years, was proceeding from Parra to Mapusa by riding his scooter bearing no. GA-01-L-8478 on 12.09.2005 at around 12:15 hours. When he reached Canca, next to Bodgeshwar temple, respondent no. 1 while riding Honda Dio scooter bearing no. GA-03-B-9037 suddenly took a turn to proceed to Canca and dashed to the scooter of said Arvind due to which he sustained grievous injuries which resulted into his death on 13.09.2005. The deceased was working as lineman and was earning ` 7,537/- per month. The claimants were totally dependent on the income of the deceased.
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The respondents no. 1 and 2 filed their written statement denying the case of the claimants. They stated that their liability, if any, was covered by the insurance policy issued by respondent no. 3. They stated that the accident was caused due to the fault of the deceased himself who rode the scooter in fast speed and in rash and negligent manner. They stated that the accident had taken place at Canca, but the spot of the accident was much after the Bodgeshwar temple.
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The respondent no. 3, in its written statement, admitted that the vehicle of the respondent no. 2 was covered under the insurance policy issued by it at the time of the accident, but claimed that there was breach of condition since, respondent no. 1 was not duly licensed and was riding the vehicle in violation of Rule 3 of Central Motor Vehicle Rules. The respondent no. 1 was not accompanied by any duly licensed person at the time of the accident. The respondent no. 3 also claimed that the accident had occurred due to the negligence of the deceased himself.
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Accordingly, issues were framed. The claimants examined claimant no. 1, Mrs. Ashwita Poll as AW-1; Shri Ramesh Kalangutkar, Head Constable attached to Mapusa police station as AW-2; Shri Nelson Iype, Executive Engineer, Electricity Department, Division XIII as AW-3; and Shri V.P. Singh Akela, Assistant Engineer, Electricity Department, Kadamba Plateau, as AW-4. The respondent no. 1 examined herself as RW-1. The respondent no. 3 examined its Technical Manager, Shri Shripad Nigudkar, as RW-2.
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Upon consideration of the entire evidence on record, the learned M.A.C.T. held that the accident had occurred due to the negligence of the respondent no. 1 in riding the vehicle bearing no. GA-03-B-9037. The learned M.A.C.T. further held that the claimants were entitled to receive, jointly and severally, from respondents no. 2 and 3 an amount of ` 5,35,000/- together with interest at the rate of 6% per annum from the date of filing of the petition till realisation. The amount awarded under Section 140 of the M.V. Act was held to be inclusive of the amount awarded. The claimants and respondents no. 1 and 2 have not challenged the above Judgment and award. However, respondent no. 3-insurance company has challenged the same.
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The main ground for challenge is that there was a breach of policy condition and therefore, the respondent no. 3 was not liable to indemnify the respondent no. 2 for any liability and to pay compensation to the claimants.
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Mr. Afonso, learned counsel for the respondent no. 3, pointed out that the daughter of the insurer was riding the said scooter and she had learner's license. He submitted that she was riding the scooter without any pillion rider/instructor having valid license. Learned Counsel read out Section 3 of the M.V. Act and Rule 3 of the Central Motor Vehicles Rules, 1989 (Rules, for short). He also read out the clause in the insurance policy produced as Exhibit 53. He urged that the learner's license is not for general riding, but for learning with an instructor having effective driving license sitting behind in such a position to control or stop the vehicle and that there had to be painted in the front and the rear of the vehicle on white background the letter "L" of specific size, in red colour. According to the learned Counsel, the learner's licence would be included in effective driving licence only if the conditions mentioned in Rule 3 are fulfilled. He submitted that all above requirements under the law were not complied with, in the present case. He pointed out that neither in the written statement of respondents no. 1 and 2 nor in the deposition of RW1, it was stated that there was any pillion rider with RW1 on the said scooter. He submitted that RW2 had stated about said violations of law in his affidavit-in-evidence and had produced the insurance policy showing that said violation amounted to breach of policy. He, therefore, urged that the impugned judgment and award insofar as it directs respondent no. 3 to pay the compensation be quashed and set aside. In the alternative, the learned Counsel submitted that respondent no. 3 be directed to pay the compensation to the claimants and recover the same from the owner of the vehicle. He relied upon the following judgments:
(i) Judgment dated 28/03/2008 of Delhi High Court in the case of "Jeet Singh Vs. National Insurance Co. Ltd. and Ors.", (MAC. APP. 30/2006);
(ii) "Pramod Kumar Agrawal and Another Vs. Mushtari Begum (Smt.) and Others", reported in [(2004) 8 SCC 667];
(iii) "Malla Prakasarao Vs. Malla Janaki and Others", reported in [(2004) 3 SCC 343];
(iv) "Ishwar Chandra and Others Vs. Oriental Insurance Co. Ltd. and Others", reported in [(2007) 10 SCC 650]; and
(v) "Ram Babu Tiwari Vs. United India Insurance Company Limited and Others", reported in [(2008) 8...
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