Rajasthan High Court - Jodhpur
Hdfc Ergo General Insurance Co. Ltd vs Panki Devi on 30 May, 2019
Author: Dinesh Mehta
Bench: Dinesh Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Misc. Appeal No. 3130/2018 HDFC Ergo General Insurance Co. Ltd., Office No. 2, Third Floor, Upasna Tower, Subhash Marg, C-Scheme, Jaipur. - 302001. Through Its Authorised Signatory At Nk Tower, Opposite New Kohinoor Cinema, Chopasni Road, Jodhpur. (Insurer Of Truck No. RJ-04-GA-1685)
----Appellant Versus
1. Panki Devi W/o Lt. Gopal Ram, Aged About 35 Years, B/c Bheel, R/o Bhoot Gaon, Teh - Sirohi, Dist. Sirohi.
2. Puja D/o Lt. Gopal Ram, Aged About 13 Years, Minor Through Natural Guardian Mother Panki Devi W/o Lt. Gopal Ram. Age 35 Years. B/c Bheel, R/o Bhoot Gaon, Teh - Sirohi, Dist. Sirohi.
3. Gudiya D/o Lt. Gopal Ram, Aged About 11 Years, Minor Through Natural Guardian Mother Panki Devi W/o Lt. Gopal Ram. Age 35 Years. B/c Bheel, R/o Bhoot Gaon, Teh - Sirohi, Dist. Sirohi.
4. Vasundhara D/o Lt. Gopal Ram, Aged About 9 Years, Minor Through Natural Guardian Mother Panki Devi W/o Lt. Gopal Ram. Age 35 Years. B/c Bheel, R/o Bhoot Gaon, Teh - Sirohi, Dist. Sirohi.
5. Poonam D/o Lt. Gopal Ram, Aged About 7 Years, Minor Through Natural Guardian Mother Panki Devi W/o Lt. Gopal Ram. Age 35 Years. B/c Bheel, R/o Bhoot Gaon, Teh - Sirohi, Dist. Sirohi.
6. Manoj S/o Lt. Gopal Ram, Aged About 4 Years, Minor Through Natural Guardian Mother Panki Devi W/o Lt. Gopal Ram. Age 35 Years. B/c Bheel, R/o Bhoot Gaon, Teh - Sirohi, Dist. Sirohi.
7. Mani Devi W/o Chhoga Ram, Aged About 63 Years, B/c Bheel, R/o Bhoot Gaon, Teh - Sirohi, Dist. Sirohi.
8. Chhoga Ram S/o Pata Ji, Aged About 68 Years, B/c Bheel, R/o Bhoot Gaon, Teh - Sirohi, Dist. Sirohi.
9. Gordhan Ram S/o Chatura Ram, B/c Jat, Age - Major, R/o Raiko Ki Dhaani, Sarnoo, Police Station - Sindhari, Dist. - Barmer (Raj.) (Driver Truck No. Rj-04-Ga-1685) (Downloaded on 28/06/2019 at 07:25:10 AM) (2 of 6) [CMA-3130/2018]
10. Gemar Ram S/o Chima Ram Raika, Age - Major, R/o Nagneshi Dhundha, Tehsil And Dist. Barmer. (Owner Turck No. Rj-04-Ga-1685)
----Respondents For Appellant(s) : Mr. Santosh Choudhary.
For Respondent(s) : Mr. Rajesh Panwar.
JUSTICE DINESH MEHTA
Order
30/05/2019
Heard.
Admit. Issue notice.
Mr. Rajesh Panwar, learned counsel accepts notice on behalf of the respondents-claimants.
Stay Application No.2593/2018 :
Heard on stay application also.
Mr. Santosh Choudhary, learned counsel for the appellant submits that it is an admitted case that the deceased-Gopal Ram, was unloading the marble slabs from truck No. RJ-04-GA-1685, who was engaged by the owner of the house, who bought the marbles slabs for his own use. According to the appellant, the policy of the vehicle was 'Act Only Policy' and thus did not cover the risk of the deceased, as he can neither be considered as a third party nor can he be treated as a servant/employee of the owner of the truck, inasmuch as he was admittedly engaged by the owner of the marble i.e. Khimaram Mali.
Apart from the fundamental question of appellant-Insurance Company's liability under the provisions of Motor Vehicles Act, 1988 (hereinafter referred to as the 'Act'), he submitted that the Tribunal has awarded excess amount inasmuch as future prospects to the tune of 40% has been awarded while making deduction of (Downloaded on 28/06/2019 at 07:25:10 AM) (3 of 6) [CMA-3130/2018] 1/5th of the amount from the income on account of personal expenses. He argued that future prospects are not available in case under Section 163 of the Act and a fixed deduction to the extent of 1/3rd has been provided under Section 163 of the Act itself. According to learned counsel, the amount of award can in no case exceed Rs.4 lacs, even if the appeal filed by the Insurance Company is ultimately rejected on the first ground and it is held liable to indemnify.
In relation to his first contention, Mr. Choudhary contended that in light of judgment of Hon'ble Supreme Court in the case of Ningamma & Anr Vs. United India Insurance Co. Ltd reported in 2009 RAR 233 (SC), particularly para No.24 thereof, in case of 'Act Only Policy' the deceased, who was simply a person engaged by the owner of the marble, is not covered.
Mr. Rajesh Panwar, learned counsel for the respondents- claimants on the other hand submitted that claimants had lodged a claim under Section 163 A of the Act, which has a non-obstante clause to the effect that it shall override other provisions of the Act of 1988. Hence, notwithstanding the provisions contained in Section 147 of the Act, in cases of claim filed under Section 163 A of the Act, the defense relating to the negligence of the driver as well as defense of policy not being covered, can also not be an excuse, for the Insurance Company to escape its liability.
To buttress his arguments, learned counsel for the respondents relied upon the judgment of this Court in United India Insurance Company Ltd Vs. Smt. Rekha & Ors. reported in 2007 RAR 435 (Raj.) and contended that in light of judgment of this Court, in Smt. Rekha (supra), the provisions of Section 163 A of the Act will override all other provisions and the (Downloaded on 28/06/2019 at 07:25:10 AM) (4 of 6) [CMA-3130/2018] appellant-Insurance Company is thus liable for the award amount in question, as if the deceased was a third party.
Mr. Rajesh Panwar, learned counsel appearing for the claimants cited the judgment dated 27.09.2013, passed by this Court in National Insurance Company Ltd. Vs. Prakash & Anr. and the another Judgment of Smt. Shakila & Ors. Vs. Veer Singh & Ors. reported in 2001 ACJ 1309 and basic judgment of Hon'ble the Supreme Court in Shivaji Dayanu Patil & Anr. Vs. Vatschalal Uttam More reported in 1991 ACJ 777 to buttress the submission that it is by fault settled that in case the accident happens during course of loading and unloading of the goods. The same falls within the meaning of expression "use of motor vehicle".
Without prejudice to his aforesaid submission, Mr. Panwar contended that Insurance Company having insured the vehicle is primarily responsible to make the payment of the claim amount to the claimants and if ultimately its appeal is allowed, it can well recover the same from the owner or the driver of the vehicle; the claimants cannot be left in lurch to recover the amount awarded by the Tribunal from the owner of the vehicle.
Having heard learned counsel for the parties, this Court is of the prima facie view that the Insurance Company in the present set of facts cannot be held responsible/liable for the amount in question. The reasons are not far to seek; as far as Section 163 A of the Act is concerned, true it is that the same begins with a non- obstante clause, but overriding effect of Section 163 A of the Act shall apply only with respect to, what follows in that sub-section. (Downloaded on 28/06/2019 at 07:25:10 AM)
(5 of 6) [CMA-3130/2018] A perusal of Section 163 A of the Act suggests that the same carves out an exception, only in relation to negligence of the driver and quantification of the award amount.
In other words, if a claim petition filed under Section 163 A of the Act, the claimants are neither required to prove negligence of the driver nor are they required to prove the income of the deceased. But as far as the other defense available to the Insurance Company such as infraction of condition of policy or non coverage of the liability qua the deceased are concerned, it cannot be given a go by, treating the provisions under Section 163 A of the Act to be paramount or above all other other provisions.
If the arguments advanced by Mr. Panwar is accepted, then even in case of no license or even in case of a policy being expired, the Insurance Company will be held liable, which would lead not only to anomalous results and would be against the basic tenets and principles governing contracts.
As far as judgment of this Court in United India Insurance Co. Ltd Vs. Smt. Rekha (supra) is concerned; in my prima facie opinion, the same does not through any light on the question involved in the present case, inasmuch as the facts in the said case were starkly different. In the case of Smt. Rekha (supra), the deceased was riding a motor cycle owned by his father and such being the case, this Court has held that Insurance Company even under the 'Act Only Policy' is liable to indemnify the owner of the vehicle.
In view of the above, this Court is of the view that since the insurance policy is mandatory under the provisions of Act, it is prima facie duty of the Insurance Company to at least make payment of the awarded amount to the claimants. Thus, instead of (Downloaded on 28/06/2019 at 07:25:10 AM) (6 of 6) [CMA-3130/2018] requiring the claimants to file execution proceedings etc. for recovery of the amount from the owner of the vehicle, in the facts involved in the present case, this Court feels that interest of justice warrants that the appellant-Insurance Company makes payment of the award amount to the claimants.
The core question involved in the present case, "as to whether the appellant-Insurance Company can be held liable for payment of the award amount" can be decided only after final adjudication of the present appeal.
As far as quantum of amount is concerned, Mr. Panwar fairly concedes that as per the law exists today, neither future prospects is required to be considered in the claim filed under Section 163 A of the Act nor is the deduction to the extent of 1/5th made by the Tribunal is in conformity with the provisions of Section 163 A of the Act.
That being the position, subject to payment of Rs.4 lacs before the Tribunal in pursuance of the impugned judgment and decree dated 31.07.2018, recovery of the remaining amount shall remain stayed till disposal of the appeal.
In the interest of justice, it is further ordered that during pendency of the present appeal, the owner of the vehicle i.e. respondent No.10 shall not transfer; alienate or otherwise create third party rights qua the registered vehicle Truck No. RJ-04-GA-1685.
Any transfer or creation of third party rights after the date of the present order shall be void against the rights of the appellant.
(DINESH MEHTA),J 18-A.Arora/-
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