Jagdish Chandra vs The Oriental Fire and Insurance Company and Others

B.B.L. Shrivastava, J.—This appeal arises out of award dated 18-7-1986 in claim case No. 17/82 of The court of Motor Accidents claims Tribunal, Shajapur, awarding sum of Rs. 17,000/- as compensation to L. Rs. (respondents No. 3 to 7) of deceased Bansilal, who died due to overturning of matador No. M.B.B. 8097 which was being driven by respondent No. 2 Maqbul Hussain and which was owned by the appellant under insurance with respondent No. 1.

Case of applicant-respondents 3 to 7 is that deceased Bansilal, while travelling in the aforesaid vehicle, died in consequence of injuries, sustained due to its over turning, on account of negligence of the driver. The contention of the owner and driver of the vehicle was that the deceased was never travelling in the aforesaid vehicle and the accident in question was for no fault of the driver. The insurance company contended that carrying passengers in the goods vehicle was contrary to policy condition and there was thus no liability for payment of any compensation whatsoever. The Tribunal exonerated the insurance company after accepting the aforesaid plea.

Specific contentions in the appeal memo filed by appellant owner of the vehicle are that besides the incorrect finding relating to driver''s negligence and relating to entitlement of compensation assessed on wrong principles, insurance company could not be exonerated and further finding that deceased was travelling in the vehicle was not only erroneous but it was contrary also to owner''s positive orders thereabout.

Shankerlal PW 2, a copassenger in the vehicle, categorically asserts (Paral) that deceased persons were passengers and even fare was paid for that lift. His direct evidence is corroborated by not only Shivnarayan PW 5 (Para 2) who bad come to see them off, but also by his immediate FIR Ex. P. 3 after the accident which has corroborative value of no small degree. These witnesses could not even otherwise be dislodged on that point in their detailed cross-examination. Shivnarayan PW 5 further asserts (2) that in fact the vehicle owner had himself collected the fare, thereby ruling out any chances whatsoever of otherwise instructions by him, as contended in his written statement. Shivnarayan PW 5 had himself also travelled like that (Para 12) twice earlier. In written statement, the driver himself does not rule out that contention completely but on the other hand submits possibility thereof, but without his know ledge. Conclusion with regard to deceased having had been outright passengers is thus based on superior evidence and is maintained.

Insurance company in its written statement specifically contended that carrying passengers in the good vehicle amounted to breach of policy condition and therefore it was entitled to be exonerated. The aforesaid ground for exoneration was certainly not an admitted fact in the trial Court, which could dispense with proof thereof. In spite of this, insurance company led absolutely no evidence whatsoever to prove the relevant policy condition or its breach. As per D.B. decision of this Court A.C.J. 198 193 Rehana v. A. Majid and Ors. it is for the insurance company to prove all that, regardless of cover note, otherwise it is liable for payment of the amount. Supreme Court has gone further National Insurance Co. Ltd., New Delhi Vs. Jugal Kishore and Others, National Insurance Co. v. Jugal Kishore by observing that where the insurance company wishes to take defence, relating to liability aspect, it should file and prove (unless admitted) the relevant condition and should not be permitted to take shelter behind the abstract doctrine of burden of proof. Thus the trial Court should not have exonerated the insurance company without actual proof of the relevant policy condition as strictly Laid down by our Division Bench decision as well as by Supreme Court, merely on basis of certificate of insurance company, which certainly is no substitute for policy or its detailed conditions, particularly when extra risk and wider use coverages under additional premiums and also extensions of contractual coverages are not uncommon at all these days. For reasons detailed above, insurance company should not have been exonerated by the trial Court.

Bashir PW 6, who examined the vehicle soon after the accident, is not only an experienced driver (Para 2) but also a mechanic and he firmly submitted (Para 1) that one of the types was in condemned condition and in the event of burst, vehicle could easily overturn. He justly maintained this throughout, though repeatedly challenged in cross-examination. He need not unnecessarily be disbelieved. There was thus intolerable negligence in driving the vehiele with aforesaid tyre condition, that too with great (PW 2 Para 3) speed and relevant finding of the Tribunal is therefore maintained.

On going through the evidence on record, it is seen that findings of the Tribunal, with regard to factors determining compensation, are based on proper appreciation thereof after due consideration of other connected aspects also with no sufficient grounds to justify any interference, which, in case of marginal difference, as made out on consideration of instant cross objections, is even otherwise viewed as improper sum of compensation awarded is thus upheld.

The cross objections are therefore dismissed, while the appeal is thus partly allowed with no order as to costs, only to the extent that Tribunal''s order exonerating the insurance company is hereby set aside, with direction that it will also in addition be liable for payment of the compensation, as directed by the Tribunal.