ORIENTAL INSURANCE CO TLD Vs. ASHOK RAMVILASJI VYAS

JUDGEMENT

(1.) THIS first appeal filed by Oriental Insurance Co. Ltd. takes an exception to the award dated 16. 3. 1990 passed by the Member, Motor Accidents claims Tribunal in M. A. C. Petition No. 7 of 1989 whereby the appellant insurance company and the owner of Matador involved in the accident were directed jointly and severally to pay compensation to the claimant-respondent No. 1.

(2.) BRIEF facts are required to be stated as under: the accident occurred on 23. 7. 1988. On that day the claimant Ashok had boarded matador bearing No. MZS 677 at Akola for going to Khamgaon along with other passengers after payment of Rs. 7 as fare. Respondent No. 2 is the driver of Matador who drove it in a rash and negligent manner and, therefore, when Matador reached at the spot of accident, it had given dash to truck bearing No. MBS 1755. Respondent no. 3 is the owner of Matador, whereas respondent No. 5 is the owner of the truck and respondent No. 4 is the driver of the truck. The respondent No. 6 is New India assurance Co. Ltd. with whom the truck was duly insured. It is contended that the claimant Ashok sustained permanent partial disability in the said accident. The claimant took treatment in the hospital and thereafter instituted the claim under section 110-A of Motor Vehicles Act, 1939 (for short 'the M. V. Act') seeking compensation. The appellant contested the claim by filing written statement and contended that the claimant Ashok was travelling as a passenger in Matador and Matador was not supposed to carry the passengers as per the terms and conditions of the insurance policy and, therefore, there is a breach of the insurance policy and as such oriental Insurance Co. Ltd. would not be liable to pay the compensation. The parties adduced evidence before Claims Tribunal and on hearing the learned counsel for the parties, the Tribunal negatived the contentions of the appellant insurance company and held that the appellant insurance company is liable jointly and severally along with the owner of Matador to pay compensation to the claimant. This award and the judgment passed by the Tribunal on 16. 3. 1990 is under challenge in this appeal.

(3.) MR. Bapat, the learned counsel for the appellant insurance company raised several grounds in this appeal and according to him the main ground on which finding of the Tribunal is challenged is that; there was breach of terms and conditions of the insurance policy. He contended that the claimant himself in the claim petition admitted that he was fare paying passenger and boarded the said Matador along with other passengers and paid Rs. 7 on account of fare for Akola to Khamgaon. Mr. Bapat further contended that the claimant in his deposition admitted that he boarded Matador on payment of fare and, therefore, this would amount to breach of the insurance policy condition. He contended that there were limitations for the use of Matador as indicated in the policy itself and Matador could not have been used for hire or reward. He contended that the owner of matador did not produce on record any permit obtained by him in accordance with the provisions of the M. V. Act for carrying passengers and, therefore, there was clear breach of the terms and conditions of the insurance policy. He further contended that in the circumstances the appellant insurance company is not liable to pay any kind of compensation to the claimant and the impugned award passed by the Tribunal cannot be sustained in law. He further contended that the driver of Matador, respondent No. 2, was not driving the vehicle in a rash and negligent manner hence the insurance company cannot be held liable to indemnify the owner and this appeal may kindly be allowed. In support of these submissions he relied on the Full Bench decision of this court in case of Oriental fire and General Ins. Co. Ltd. v. Hirabai vithal Nikam, 1988 ACJ 494 (Bombay ). He also placed reliance on the decision of the Apex Court in the case of New India assurance Co. Ltd. v. Asha Rani, 2003 acj 1 (SC) and in the case of Oriental insurance Co. Ltd. v. Devireddy Konda reddy, 2003 ACJ 468 (SC ).