Case Note & Summary
The appeal was filed by the United India Insurance Company challenging the judgment and award dated 19.07.1997 passed by the Motor Accident Claims Tribunal, Nagpur, in Claim Petition No. 418/1993. The Tribunal had allowed the claim petition and directed the appellant Insurance Company along with the owner and driver of the vehicle to jointly and severally pay the claimants a sum of Rs. 4,08,800/- (inclusive of Rs. 25,000/- already awarded for NFL) with proportionate costs and future interest at 12% p.a. from the date of petition i.e. 27.08.1993 till realisation. The accident occurred on 27.02.1993 when the deceased Vikas Kene, a Range Forest Officer, hired jeep No. MH-35/A-9752 to chase a goods truck allegedly carrying forest produce. The jeep turned turtle, resulting in the death of Vikas Kene. The Insurance Company's defence was that there was a breach of the policy condition as the vehicle was used for hire or reward and for racing purposes. The Tribunal recorded findings that there was no evidence of any hire charges or reward received by the owner, and mere chasing did not amount to racing. The High Court, after hearing counsel for both sides, examined the oral evidence of the claimant and the witness Rajesh Lahanuji Suryawanshi, who stated the jeep was hired for patrolling. The court also considered the evidence of the Assistant Branch Manager of the Insurance Company. The court held that the Tribunal's findings were based on proper appreciation of evidence and there was no breach of policy condition. Consequently, the appeal was dismissed with no order as to costs.
Headnote
A) Motor Accident Claims - Breach of Policy Condition - Burden of Proof - The insurer must prove breach of policy condition by leading evidence. In this case, the Tribunal found no evidence that hire charges or reward were received by the owner, and mere chasing did not establish racing. The High Court upheld this finding, dismissing the appeal. (Paras 2-5)
B) Motor Accident Claims - Use of Vehicle - Private Car Used for Chasing - The vehicle was insured as a private car and used for chasing a truck. The court held that without evidence of hire or reward, such use does not constitute a breach of the policy condition. (Paras 2-3)
Issue of Consideration
Whether the use of the insured jeep for chasing a truck carrying forest produce amounted to a breach of the policy conditions, thereby absolving the insurance company from liability.
Final Decision
The appeal is dismissed. The judgment and award dated 19.07.1997 passed by the Motor Accident Claims Tribunal, Nagpur, in Claim Petition No. 418/1993 is confirmed. No order as to costs.
Law Points
- Breach of insurance policy condition must be proved by insurer
- Vehicle used for chasing not per se breach of policy
- No evidence of hire charges or reward
- Mere chasing not racing
Case Details
2010 LawText (BOM) (01) 176
First Appeal No. 483/1997
Mr. D. N. Kukday for appellant, Mr. A. S. Joshi for respondent nos. 1 to 4, Mr. A. R. Patil for respondent no.6
Divisional Manager, United India Insurance Co. Ltd. Bhandara, thr. Its Divisional Manager, Nagpur Division Office, Nagpur.
1. Mrs. Pramila wd/o Vikas Kene, 2. Master Kirit s/o Vikas Kene, 3. Wamanrao Vithalrao Kene, 4. Smt. Nirmalabai w/o Wamanrao Kene, 5. Ashok Daulat Kale, 6. Kishore s/o Shamrao Tamshetwar
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Nature of Litigation
Appeal against judgment and award of Motor Accident Claims Tribunal in a claim petition for compensation arising from a fatal motor accident.
Remedy Sought
The appellant Insurance Company sought to set aside the award and be absolved from liability on the ground of breach of policy condition.
Filing Reason
The Insurance Company contended that the vehicle was used for hire or reward and for racing, which was in breach of the policy conditions.
Previous Decisions
The Motor Accident Claims Tribunal, Nagpur, in Claim Petition No. 418/1993, allowed the claim and held the Insurance Company jointly and severally liable to pay compensation of Rs. 4,08,800/- with interest.
Issues
Whether the use of the insured jeep for chasing a truck carrying forest produce amounted to a breach of the policy conditions, thereby absolving the insurance company from liability.
Submissions/Arguments
Mr. Kukday for appellant argued that the witness Rajesh Lahanuji Suryawanshi admitted the jeep was hired for patrolling, and the Assistant Branch Manager stated the vehicle was registered as a private car and could not be used for chasing. He contended the Tribunal erred in not finding breach of policy condition.
Mr. Patil for respondent no.6 (owner) and Mr. Joshi for respondent nos. 1 to 4 (claimants) supported the Tribunal's findings that there was no evidence of hire charges or reward, and mere chasing did not amount to racing.
Ratio Decidendi
The insurer must prove breach of policy condition by leading evidence. In the absence of evidence that the vehicle was used for hire or reward or for racing, mere use for chasing does not constitute a breach of policy condition.
Judgment Excerpts
The Tribunal has recorded a finding that there is no evidence on record that any hire charges or reward was received by respondent no.2-owner of the vehicle.
It has further recorded a finding that mere chasing will not be sufficient to establish that the vehicle was used for racing purposes.
Procedural History
The Motor Accident Claims Tribunal, Nagpur, passed judgment and award on 19.07.1997 in Claim Petition No. 418/1993. The Insurance Company filed First Appeal No. 483/1997 before the Bombay High Court, Nagpur Bench, challenging the award. The appeal was heard and dismissed on 11.01.2010.
Acts & Sections
- Motor Vehicles Act, 1988:
