Gujarat High Court Case Information System
Print
FA/135220/2009 9/ 9 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 1352 of 2009
With
CIVIL
APPLICATION No. 4056 of 2009
=========================================================
ORIENTAL
INSURANCE COMPANY LTD - Appellant(s)
Versus
KINJALBEN
MAGANBHAI TARAR MINOR & 4 - Defendant(s)
=========================================================
Appearance
:
MR
SHALIN N MEHTA for
Appellant(s) : 1,
None for Defendant(s) : 1 -
5.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 08/04/2009
ORAL
ORDER
Heard
learned Advocate Mr. Shalin N. Mehta for appellant insurance
company.
In
this appeal, appellant has challenged award made by claims tribunal,
Sabarkantha at Himatnagar in claim petition no. 348/02 Exh.75 dated
10th December, 2008 wherein claims tribunal has awarded
Rs.4,07,000.00 with 7.5 per cent interest in favour of respondents
claimants.
Learned
Advocate Mr. Shalin N. Mehta for appellant raised sole contention
before this court the claims tribunal has committed gross error in
interpreting terms and conditions of the policy of insurance
produced on record at Exh.54. He submitted that the owner has paid
Rs.317.00 on count for loading for trailer and Rs.15/- were paid as
additional premium for additional liability for paid driver/workman
no.1. Therefore, he submitted that the amount of Rs.15/- paid would
apply to only one person, either paid driver or workman no.1 but not
to both. He submitted that the claims tribunal has committed gross
error in not appreciating this condition properly. He submitted that
the claims tribunal has committed gross error in coming to the
conclusion that the insurance policy covers extra liability of one
workman or labour excluding driver and, therefore, matter would
require interference of this court. Except these submissions, no
other submission is made by learned advocate Mr.Mehta before this
Court and no decision is cited by learned Advocate Mr. Mehta in
support of the submissions recorded herein above.
I
have considered submissions made by learned Advocate Mr. Mehta
before this Court. I have also perused impugned award made by claims
tribunal. Relevant para 13 of impugned award is reproduced as under:
In
reply to this submission, LA Mr.VM Desai on behalf of opponent NO.3
has argued that there is a breach of condition of insurance policy,
therefore, insurance company is not liable to pay any compensation
to the petitioners for accidental death of deceased Maganbhai.
I
do agree with the submission made by LA Shri Sadhu on behalf of
petitionres. Considering the versions made in FIR as well as the
facts narrated in panchanama of place of occurrence, it can be
strongly presumed that the tractor was used by the owner for
agricultural purposes. Considering the facts narrated in panchanama
of place of occurrence, trolley was also lying on the place of
occurrence. As per the say of the complainant, the deceased was
sitting with him on tractor and due to loss of control on steering
of tractor by driver, the tractor turned turtle and deceased was
seriously injured in this accident. The policy of involved tractor
is produced at Exh.54 in which it is specifically narrated that the
owner had paid Rs.317 on count of loading for trailer. It transpires
that the owner was using trolley with tractor for agricultural
purposes. Moreover, the owner had paid Rs.15/- additional premium
for additional liability for paid driver/workman no.1. Ofcourse the
LA Mr. Doshi hs argued that it is a premium for only driver but if
premium of driver need not be narrated as driver’s/workman NO.1
therefore, it can be strongly presumed that this insurance policy
covers extra liability for one workman or labour excluding driver.
Considering all the facts and non examination of witness from
insurance company to disprove the facts of additional liability of
one workman, insurance company is liable to pay compensation to
petitioners for accidental death of deceased Maganbhai. In this
regard the rulings cited by LA Shri Sadhu which are stated in
earlier para are supporting the case of the petitioners Of course,
the lA Shri Sadhu has argued in alternate that as a third party
also, insurance company is liable to pay the compensation to the
petitioners for accidental death of deceased but as per earlier
discussion, this is not a case to consider deceased as third party
therefore, question does not arise to give direction to the
insurance company to pay compensation to the petitioners at this
juncture and to recover the same thereafter from the owner of the
vehicle. In all, I am of the opinion that insurance company is
liable to pay compensation to the petitioners.
Considering
reasoning given by claims tribunal in para 13 of award as quoted
above, relevant question is that when the contention has been raised
by insurance company before claims tribunal in respect of the policy
of insurance at Exh.54 that Rs.15/- were paid as additional premium
which would cover liability of driver and not workman or only one
person and not two persons, then, it is the duty of insurance
company to prove the same contention by leading proper evidence
otherwise, it cannot be said that the contention raised by insurance
company is proved. Therefore, considering all the facts and non
examination of witness from insurance company to disprove the facts
of additional liability of one workman, according to my opinion,
claims tribunal has rightly observed that insurance company is
liable to pay compensation to petitioners for accidental death of
deceased Maganbhai. Accoridng to my opinion,l such presumption
raised by claims tribunal cannot be considered to be erroneous in
view of non examination of witness from insurance company to
disprove facts of additional liability. It is well established
principle that person who raise a particular contention must prove
such particular contention. When insurance company has raised
specific contention that an amount of Rs.15/– paid by insured would
cover paid driver and not workman or workman as per terms and
conditions of policy, then, it is the duty of insurance company to
prove such condition and such condition must have to be explained by
insurance company so claimants may get an opportunity to cross
examine officer of insurance company in that regard. In this case,
contention raised by insurance company on the basis of condition of
insurance policy has not been proved by insurance company by leading
proper evidence and, therefore, claims tribunal has rightly come to
the conclusion that the additional premium covers risk of workman.
For that, according to my opinion, claims tribunal has not committed
any error in coming to such conclusion. In National Ins. Co. Ltd.
versus Lakhuben Punabhai Vaghari & Ors., reported in 2006(2) GLH
468, Division Bench of this Court examined this aspect as under:
6. It
is now settled by a catena of decisions of
the Supreme Court that all defences are to
be proved by the insurer like the appellant. In the face of this
specific averment in the claim petitions
that the persons were travelling alongwith their goods, the onus to
disprove this averment rests upon the appellant Insurance Co. Had
the appellant Insurance Company discharged this onus, it would
have gone a long way in proving whether,
or not, the deceased persons were gratuitous passengers.
Unfortunately, it has failed to do so and
has not even brought the driver of the offending truck into the
witness box. The burden to prove the breach
of a term of contract rests squarely on the party which complains of
such breach. The test which can be applied in such a situation would
be that which party would fail if no evidence is led or the onus is
not discharged. In the present
case, the answer would be the appellant-Insurance Company. In this
behalf, reference
can be made to 1985 ACJ 397 (Narcinva V. Kamat v. Alfredo Antonio
Doe Martins) and 2004 ACJ 1 (National
Insurance Co.Ltd. v. Swaran Singh). In National
Insurance Co.Ltd. v. Swaran Singh (Supra) the Supreme Court has
observed as under:
62.
the proposition of law is no longer res
integra that the person who alleges breach
must prove the same. The insurance company
is, thus, required to establish the said breach by cogent
evidence. In the event the insurance company
fails to prove that there has been breach of conditions
of policy on the part of the insured, the insurance
company cannot be absolved of its
liability. (See Sohan Lal Passi, 1996 ACJ
1044 (SC).
102
((i)**********
(ii)
**************
(iii)**************
(iv)The
Insurance companies are, however, with a
view to avoid their liability must not only
establish the available defence(s) raised in the said proceedings but
must also establish ‘breach’ on the part of
the owner of the vehicle, the burden of proof wherefor would be on
them.
(v)The
court cannot lay down any criteria as to
how said burden would be discharged, inasmuch as the same would
depend upon the facts and circumstances of
each case.
7. Applying
the ratio of the law laid down by the Supreme Court, as referred to
above, it is evident that the appellant, in the present case has
failed to lead any evidence in order to
prove that the deceased persons were gratuitous passengers who were
travelling in an unauthorised manner in the truck and without any
goods. The specific averment in the claim petition that the deceased
persons were travelling in the truck
alongwith their goods has not been dislodged during the entire
proceedings before the M.A.C.Tribunal and in the absence of any
evidence or material
on record to the contrary, it has rightly been relied upon by the
M.A.C.Tribunal to come to the conclusion
that the deceased persons were travelling
in the truck alongwith their goods and, as such they were not
gratuitous passengers. Having failed to discharge the burden of
proof in support of this contention, it is not open to the appellant
at this stage to try and bring about a re-appraisal of the evidence
on facts. There is no reason for this Court to go into the factual
aspect of the matter or enter into a re-appraisal of evidence since
the impugned judgment and award does not
suffer from any illegality or perversity.
In
view of the observations as aforesaid made by Division Bench of this
Court that burden is upon the insurance company to prove facts if
contention is raised by insurance company before claims tribunal, by
leading proper evidence in respect of such contention. In this case,
insurance company has not led any evidence to explain terms and
conditions of policy of insurance Exh.54 and, therefore, claims
tribunal has rightly arrived at conclusion as aforesaid that
additional premium covers risk of deceased and according to my
opinion, no error has been committed by claims tribunal in coming to
such conclusion and, therefore, matter does not call for any
interference of this court. Therefore, there is no substance in this
appeal and same is required tobe dismissed.
In
result, this appeal is dismissed.
In
view of the orders passed by this court in first appeal, no order is
required to be passed in civil application for stay, therefore,
civil application for stay is disposed of accordingly. Amount, if
any, deposited by appellant in registry of this court be transmitted
to claims tribunal immediately.
(H.K.
Rathod,J.)
Vyas
Top