Back
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT NAGPUR
M. S. Sonak, J.
Kanhaiyalal S/o. Chouthmal Jat and Ors. - Appellants
Versus
Kalim Khan S/o. Aziz Khan and ors. – Respondents
First Appeal No. 437 of 2008 & 494 of 2013
Decided On : 09-12-2021
Motor Vehicle Act, 1988 - Section 166 – Accident – Death - Breach of insurance policy - Application for compensation - Whether there was any fundamental breach of insurance policy and therefore, remanded matter to this Court for a decision on issue - Whether this compensation was to be borne ultimately by Insurance Company or owner and driver of tractor was required to be decided by this Court on remand - Accident took place when the deceased was returning towards his house after purchasing some articles from grocery shop, a heavy stone came flying and hit his head causing him grievous injuries, deceased was rushed to the hospital, where he was unfortunately declared dead.
Finding of the court : It is necessary to note that Hon’ble Supreme Court while remanding matter to this Court noted that there was no analysis by High Court regarding terms and conditions of policy and its fundamental character - Hon’ble Supreme Court also noted that insurer had only raised a singular plea with regard to the use of tractor namely with a commercial purpose and on that foundation it had advanced submission that there had been a fundamental breach of insurance policy - Hon’ble Supreme Court also noted that insurer had advanced a plea that tractor was insured under Farmer Package Policy for use of owner’s agricultural purposes by owner of vehicle but, it was used for commercial purpose by mounting a blasting machine and that such use was a breach of insurance policy and therefore, insurer was not liable to pay compensation.
Result : Appeals allowed
JUDGMENT :
1. Heard learned counsel for the parties.
2. Learned counsel for the parties agree that both these appeals can be disposed of by common judgment and order since the challenge in both these appeals is to the common judgment and order dated 05.01.2008 made by Motor Accident Claims Tribunal, Washim (Tribunal) in M. A. C. Petition No. 64/2006 by the legal representatives of Firoz Khan claiming compensation of 15 lakhs on account of the Rs.15 lakhs on acount of the demise of the said Firoz Khan in an accident arising out of the use of the motor vehicle on 08.04.2005.
3. The accident took place in a field bearing Sr. No. 136 of village Kajleshwar, Tah. Karanja, Dist. Washim belonging to one Faimidabee. She had engaged the tractor owned by Kanhiyalal and driven by Ranjeet to undertake certain work including the digging of a well in the field. On 08.04.2005 at about 04:15 p.m., when the deceased Firoz was returning towards his house after purchasing some articles from the grocery shop, a heavy stone came flying and hit his head causing him grievous injuries. Firoz was rushed to the hospital, where he was unfortunately declared dead.
4. The legal representatives of Firoz (claimants) had urged that the stone, which struck Firoz was due to a blasting operation carried out for digging of well in the field of Faimidabee and that this accident arose due to the use of the tractor in question. Since the tractor was insured with United India Insurance Co., the Insurance Company was also impleaded as respondent in the Claim Petition.
5. The Tribunal vide judgment and award dated 05.01.2008 allowed the Claim Petition as against Faimidabee, owner, and driver of the tractor but, dismissed the Claim Petition against the Insurance Company. The Tribunal accepted that this accident arose out of the use of a motor vehicle but, found that there was a fundamental breach of the insurance policy for using the tractor for commercial purposes and therefore, the Insurance Company was not liable.
6. Faimidabee, owner of the field instituted First Appeal No. 494/2013 and the owner and driver of the tractor instituted First Appeal No. 437/2008 against the Tribunal’s order dated 05.01.2008 urging inter alia that this was not a case of an accident arising out of the use of motor vehicle and therefore, the Tribunal lacked jurisdiction to entertain the Claim Petition. The appellants, in the alternate also urged that the Tribunal was not justified in exonerating the Insurance Company.
7. By common judgment and order dated 10.10.2013, both these First Appeals were disposed of by this Court holding that this was not a case of an accident arising out of the use of motor vehicle and therefore, Claim Petition under Section 166 of the Motor Vehicle Act, 1988 (the said Act) was not maintainable. Accordingly, the Tribunal’s order dated 05.01.2008 was set aside in its entirety.
8. Aggrieved by the common judgment and order dated 10.10.2013, the claimants instituted Civil Appeal No. 8785 and 8786 of 2016 before the Hon’ble Supreme Court. By detailed judgment and order dated 03.07.2018, the Hon’ble Supreme Court allowed the appeals and held that this was indeed a case of an accident arising out of the use of the motor vehicle and therefore, Claim Petition under Section 166 of the said Act was very much maintainable before the Tribunal. Hon’ble Supreme Court ordered that the Insurance Company to pay the award amount to the claimant but, noted that this Court had not decided the issue as to whether there was any fundamental breach of the insurance policy and therefore, remanded the matter to this Court for a decision on the said issue. The Hon’ble Supreme Court made it clear that the issue of payment of compensation to the claimants was settled. However, the issue as to whether this compensation was to be borne ultimately by the Insurance Company or the owner and the driver of the tractor was required to be decided by this Court on remand. This is how the present appeals have
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
