2009(4) ALL MR 575
IN THE HIGH COURT AT JUDICATURE AT BOMBAY(NAGPUR BENCH)

A.H. JOSHI, J.

The New India Assurance Co. Ltd.Vs.Smt. Rukhmabai Wd/O. Laxman Charde & Ors.

First Appeal No.439 of 2001

15th June, 2009

Petitioner Counsel: Mr. A. J. POPHALY,Mr. L. V. LIMAYE
Respondent Counsel: Mr. S. B. BANGDE,Mr. A. V. BHIDE

Motor Vehicles Act (1988), S.147 - Evidence Act (1872), S.3 - Liability of Insurance Company - Proof - Cases are decided on evidence and not on bare pleadings and oral arguments. AIR 2003 SC 1009 and 2004 ACJ 428 - Ref. to. (Para 13)

Cases Cited:
New India Assurance Co. Ltd. Vs. Asha Rani, 2003(Vol.I) ACJ 1 [Para 6]
National Insurance Co. Ltd. Vs. Ajit Kumar, 2003(4) ALL MR 758 (S.C.)=AIR 2003 SC 3093 [Para 6]
Oriental Insurance Co. Ltd. Vs. Devireddy Konda Reddy With Oriental Insurance Co. Ltd. Vs. Jogi Subbamma, AIR 2003 SC 1009 [Para 6]
National Insurance Co. Ltd. Vs. Baljit Kaur, 2004 ACJ 428 [Para 6]
National Insurance Co. Ltd. Vs. V. Chinnamma, AIR 2004 SC 4338 [Para 6]


JUDGMENT

JUDGMENT :- In this long-argued appeal, limited question, which arises, is :-

"In the background of admitted fact, namely in the accident occurred on 1st May, 1992, whether a person travelling in the goods vehicle accompanying the goods, for which he had paid the freight charges, is covered by the Insurance Policy ?"

2. Facts of insurance and date of accident are admitted.

3. The claimants' evidence about the deceased travelling with goods has gone unchallenged. The Insurance Company elected to remain away from the witness box.

4. After the claim was allowed, now the Insurance Company is in appeal before this Court, and, based on settled law, namely that prior to the 1994 amendment, argues that insurance of passengers accompanying the goods was contingent upon payment of premium, and on the facts of the case, as no such payment was made, no liability was attracted.

5. Heard learned Adv. Mr. A. J. Pophaly with learned Adv. Mr. L. V. Limaye for the appellant, Mr. S. B. Bangde, Adv., for respondent nos.1 to 4 and learned Adv. Mr. A. V. Bhide for respondent no.5.

6. In order to substantiate this proposition of law, learned Adv. Mr. A. J. Pophaly for the appellant has placed reliance on following reported judgments :-

[a] New India Assurance Co. Ltd. Vs. Asha Rani & ors. [Accidents Claims Journal 2003(Vol.I) 1],

[b] National Insurance Co. Ltd. Vs. Ajit Kumar & ors. [AIR 2003 SC 3093],

[c] Oriental Insurance Co. Ltd. Vs. Devireddy Konda Reddy & ors. With Oriental Insurance Co. Ltd. Vs. Jogi Subbamma & ors. [AIR 2003 SC 1009],

[d] National Insurance Co. Ltd. Vs. Baljit Kaur & ors. [2004 ACJ 428], and

[e] National Insurance Co. Ltd. Vs. V. Chinnamma & ors. [AIR 2004 SC 4338].

7. There is no controversy or a dispute on proposition of law urged and relied upon by learned Adv. for the appellant.

8. The case solely rests on what is proved.

9. Though it was alleged that the Insurance Policy did not cover the case of a present nature, it being a question of exclusion of liability, it was necessary for the Insurance Company to have proved the terms of policy.

10. It is not in dispute that had the premium been paid, the Insurance Policy covered a class of victims like the deceased and claimants like those in the present case.

11. It cannot be read from the policy document that by any permutations and combinations, the amount of premium paid is for a restricted liability, i.e., excluding one of the classes of claimants.

12. An oral submission or a pleading for that matter that the premium paid did not cover the liability of the class of passengers of the present nature is, thus, a "pleading and argument" without proof of facts.

13. The cases are decided on evidence, and not on bare pleadings and oral arguments and insurer-appellant has not proved its plea of exclusion of liability.

14. In the result, this Court has to concur with the Trial Court holding that the Insurance Company was liable to make the payment towards the accident in question.

15. Therefore, only result that emerges is that the appeal has no merit, and deserves to be dismissed, and is dismissed with costs.

Appeal dismissed.