Shivraj Vasant Bhagwat vs Shevanta Dattaram Indulkar and another

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1996 Supreme(Bom) 523

IN THE HIGH COURT OF BOMBAY
M.L. Dudhat Mrs. R.P. Desai, JJ.
Shivraj Vasant Bhagwat .....Appellant.
Versus
Smt. Shevanta Dattaram Indulkar another ..... Respondents.
First Appeal No. 741 of 1996, decided on 25/27-9-1996.
Advocates appeared :
S.M. Dharap, i/b Ghanekar Co., for appellant.
S.M. Oka, for respondent.

Headnote:Sections 147, 149 and 166 -Claimant suffered Injury and 70% disability in multilier of 20 applied -Claim of Rs. 2,35,000-No reason given to award Rs. 74,500 for pain, agony and suffering-Modification of compensation amount apply not multiplier of 16 in view of SC decision,- The owner of the truck. Respondent No.1 is the claimant who had suffered injury during the accident and suffered 70% disability.
Respondent No.1 claimant suffered 70% disability so much so that she is not in a position to walk and she has completely lost her matrimonial chances in future and pain and suffering has become part of her life still, trial Court wrongly applied multiplier of 20 instead of 15 and 16 as held by the Supreme Court.
Section 166-Civil Procedure Code, 1906-Order VI. Rule 2-Accident claim-Breach of condition of policy-The main purpose of policy is to indemnify the damage caused to vehicle and inmates who are injured-The breach of insurance policy or misuse of the vehicle may somewhat be irregular but not Illegal-it is not so fundamental in the nature to put on end to the contract-Trial Court was wrong in absolving Insurance Company from its liability under the policy.-While awarding compensation to the victim the claims Tribunal held the Insurance Company not liable to pay the amount of compensation in view of breach of conditions of policy and further directed the present appellant (owner) to pay the amount. On appeal the Court held that the said breach of the condition is not such by which the contract of insurance will be vitiated as the said term of not carrying more than six labourers in the truck is not so fundamental to offer ground to Insurance Company to absolve itself from the liability. The terms of the policy of insurance has to be construed strictly and to be read down to advance the main Purpose pose of the contract. The main purpose of the policy is to indemnify the damage caused to the vehicle and the inmates, who arc injured, it is plain from the terms of the Insurance Policy that insured vehicle was entitled to carry six workmen excluding driver. If six persons travelling in the vehicle are assurned not to have increased any risk from the point of view of the Insurance Company on occurring of an accident how could those added persons be said to have contributed to the causing of it. Admittedly, all the II persons in the truck were working as labourers on the quarry of the appellant, who is also owner of the truck. Merely because 4/5 labourers more than the agreed six labourers were taken in the truck, it cannot be said to be such fundamental breach that the owner should in all events be denied the indemnification. The breach of the insurance policy of the misuse of the vehicle may some what be irregular but not illegal as it is not so fundamental in the nature so as to put an end to the contract.

JUDGMENT - M.L. DUDHAT, J.:---This First Appeal No. 741 of 1996 is based against the Award dated 22-1-1996 passed by the Member, Motor Accident Claims Tribunal, Raigad, at Alibag in Motor Accident Claim No. 153 of 1993. Appellant in this case is the original Opponent No. 1, who is the owner of the truck. Respondent No. 1 is the claimant, who had suffered injury during the accident and suffered 70% disability. Respondent No. 2 is the Insurance Company. Though served on 26th June, 1996 nobody filed appearance on their behalf. We may further mention that apart from the aforesaid service through the Court, respondent No. 2 was also served by the present appellant at the time of admission as well as hearing of the Civil Applications.

2. Few fact which are necessary to dispose off this First Appeal are as under :-

Appellant is carrying on the business of crushing the stone and other incidental activities and is the owner of vehicle Dumper/Motor Truck of the mark "Fargo" bearing R.T.O. Registration No. MHS/2503 which is, hereinafter referred to as "the Truck" for sake of brevity. Appellant engaged certain number of workers and labourers either regular or casual (badli) for the purpose of the aforesaid business. The opponent-appellant's truck was insured with New India Assurance Co. Ltd. pursuant to the Policy No. 3111210301527 dated 20th March, 1992 effective from 20th March, 1992 to 19th March, 1993. On 7th of November, 1992 the driver of the said truck, in the morning at about 11.30 a.m., loaded the stones and headed towards Underi at about 12.30 p.m. towards crusher. In the said truck, at that time, there were about 10 coolies and labourers including respondent No. 1. While the said truck was negotiating its way on the ascending portion of the road, the said truck suddenly started going in reverse and turned turtle on the left hand side and fell down resulting in injury to respondent No. 1 such as, fracture to pelvic bone and injury to both the hands. Respondent No. 1 was unconscious for seven days and was hospitalized for about 3 months during which, she was operated twice. Respondent No. 1 thereafter, by notice called upon appellant and respondent No. 2 jointly to pay to respondent No. 1 sum of Rs. 1,90,000/- towards compensation, re-imbursement, medical and other expenses incurred by respondent No. 1.

3.It is the case of respondent No. 1 that she sustained the aforesaid injuries in the course of her employment with the appellant and, therefore, appellant as owner and respondent No. 2 as an insurer were jointly liable to pay the respondent No. 1 sum of Rs 1,90,000/- as per the particulars more particularly stated in Claim Application No. 153/93.

4.Present appellant as well as respondent No. 2 resisted the aforesaid claim filed by respondent No. 1. As per written statement respondent No. 1 was not entitled to get any compensation from the appellant as well as respondent No. 2. The trial Court allowed both the parties to lead the evidence and after hearing their oral submissions, awarded respondent No. 1 compensation of Rs. 2,35,500/- with interest @ 12% per annum from the date of petition till realization of the amount and proportionate cost. In the said award, the Tribunal has also held that respondent No. 2 Insurance Company is not liable to pay the said amount in view of breach of conditions of the policy and further directed the present appellant to pay the aforesaid decretal amount. Against the same award dated 22-1-1996, after depositing Rs. 50,000/- as per the order of the Tribunal, the appellant preferred this appeal. We may mention that the aforesaid amount of Rs. 50,000/- deposited in the trial Court by the appellant is withdrawn by respondent No. 1 without furnishing security. Against the aforesaid judgment and decree, the appellant has preferred this First Appeal.

5.Mr. S.M. Dharap, learned Counsel appearing on behalf of the appellant has challenged the aforesaid award on various grounds. He has vehemently argued that tri

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1996 Supreme(Bom) 523

Cases Referred (1)