Insurance companies cannot evade liability without conclusive evidence of policy breaches, and the burden of proving contributory negligence lies with them.

JUDGMENT :

(SANDIPKUMAR C. MORE, J.)

1. The appellant/Insurance Company, who is original respondent No.3 has filed this appeal to challenge Judgment and award dated 30.11.2016, passed by the learned Member, Motor Accident Claims Tribunal, Aurangabad (hereinafter referred to as ‘the learned Tribunal’) in M.A.C.P. No. 236 of 2013. The learned Tribunal under the impugned judgment has granted compensation of Rs. 4,13,310/- inclusive of award under ‘No Fault Liability’ along with the interest at the rate of 9% per annum from the date of petition till its realization. The appellant/Insurance Company has filed this appeal mainly on two grounds, that it was not liable for paying compensation as the offending bus was being driven without permit and that the injured had also contributed in the accident.

2. According to the respondent/claimant, he was riding on motorcycle alongwith his wife Heerabai on 16.03.2012. At about 19.30 horus, his motor-cycle bearing registration No. MH-20-BD-3710 had reached near T.C.I. Company at Waluj. At that time, one private Bus bearing registration No. MH-25- B-758 came from Pandharpur side without following the traffic rules and also in a high speed and gave dash to his motorcycle. As such, he sustained injury, and therefore, filed the aforesaid claim petition. The learned Tribunal granted the compensation as aforesaid and hence this appeal.

3. The appellant/Insurance Company as well as the learned counsel for the respondents/claimants filed their respective written notes of arguments. The learned counsel for the respondents/claimants supported the impugned judgment, whereas the appellant/Insurance Company challenged the same mainly on the following grounds :-

(I) There was breach of policy condition as the offending bus was being driven without permit, and therefore, Insurance Company needs to be exonerated.

(II) No functional disability was determined by the learned Tribunal.

(III) The respondents/claimants had in fact contributed in the occurrence of accident.

4. Heard rival submissions and also perused the documents along with the written notes of arguments.

5. The citations relied upon by the learned counsel for the appellant/Insurance Company, which are as follows, are also considered.

(I) Hon’ble Apex Court in the case of Amrit Paul Singh and another Vs. Tata AIG General Insurance Co. Ltd and others reported in [2018 ACJ 1768]

(II) Hon’ble Apex Court in the case of Oriental Insurance Co. Ltd. Vs. Narbheram Power and Steel Pvt. Ltd. [ 2018 ACJ 1777 ]

(III) In the High Court of Madras in the case of S. Kavitha and others Versus Annamalai Enterprises and another reported in [ 2023 ACJ 1948 ]

(IV) In the High Court of Kerala in Pareed Pillai Versus Oriental Insurance Co. Ltd. reported in [2019(2) T.A.C. 499 (Ker.)F.B.)

(V) Gohar Mohammed Versus Uttar Pradesh State Road Transport Corporation & Others (2023) ALL SCR 303

6. So far as the first ground of challenge is concerned, the appellant/Insurance Company is saying that the offending Bus was being driven without permit, and therefore, Insurance Company needs to be exonerated from liability of paying compensation due to breach of policy condition. It is significant to note that, to bring on record the fact that the Bus was being driven without permit, the appellant/Insurance Company had examined one clerk from R.T.O. Office, Aurangabad namely Milind Sasane. He had brought particulars of the offending bus available in his office. However, according to him, the R.T.O. Office, Aurangabad had already issued NOC to Dy. RTO, Shrirampur in respect of the said offending Bus. As such, according to this witness, there was no record available in his office in respect of permit of the offending Bus. As such, he was unable to say conclusively whether the offending Bus was being driven without permit. It is extremely important to note that, when this witness had stated that NOC was issued by his office to the Deputy Regional Transport Office, Shirrampur, then it was the responsibi