Bombay High Court
Oriental Insurance Co. Ltd vs Nargis Wd/O Premlal Janghade on 10 November, 2009
Author: A.P.Bhangale
Bench: A.P.Bhangale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
FIRST APPEAL NO: 278/2009
with
CIVIL APPLICATION NO. 9300/2008
Oriental Insurance Co. Ltd.
Divisional Office III
Through its Divisional Manager, having its office
at Sharda Complex, Chapru Nagar Chowk
Central Avenue Road, Nagpur. ... ...APPELLANT
v e r s u s
1. Nargis wd/o Premlal Janghade
Aged about 30 years, occu: labourer
2. Rukhma wd/o Pandurang Janghade
Aged about 50 years, occu: Labourwer
3. Sushant s/o Premlal Janghade
Aged about 8 years, occu: student
Through natural Guardian Mother
Respondent No.1, All R/o Parsodi
Teh.Lakhandur Dist. Bhandara
4. Sanjay s/o Vasant Chute
Aged major, occu: Business
R/o Masha Teh.Lakhandur
Dist. Bhandara. .. ...RESPONDENTS
............................................................................................................................
Mr A. M .Quazi, Advocate for appellant
Mr. Shrikant J. Khandalkar Adv. for Respondents
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CORAM: A.P.BHANGALE, J.
DATED : 10th November, 2009
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ORAL JUDGMENT :
1. The First Appeal is taken up for final hearing, with the consent of the learned Advocates appearing on behalf of respective parties.
2. By this appeal, the appellant-Insurance Company, seeks to challenge the order dated 9th April, 2007 passed by the Chairman, Motor Accident Claims Tribunal, Bhandara, in Motor Accident Claim Petition No. 102/2006 (Exh.5), on an application u/s 140 of the Motor Vehicles Act, 1988 ( in short, "the Act of 1988").
3. The facts in brief are that : A truck bearing registration No, MH-31/W -6364 met with an accident on 23rd April, 2006 while proceeding from Karsala. It dashed against a Babhul tree by the side of the road resulting in serious injuries to one Premlal Pandurang Jangle, who died while receiving medical treatment at Government Medical College, Nagpur.
It appears that an application u/s 140 of the Act of 1988 was filed by the claimants (wife and father of deceased Premlal) on the ground that accident arose out of motor vehicle truck bearing No, MH-31/W -6364 on 23rd April,2006 while deceased was traveling in the said truck which resulted into death of said Premlal. The claim has been filed against the owner of the vehicle as well as Oriental Insurance Company Ltd. ( present appellant ).
4. It is contended on behalf of the appellant that insurer is not liable to pay the amount of compensation because the policy of insurance did not ::: Downloaded on - 09/06/2013 15:17:54 ::: 3 cover passengers traveling by goods vehicle, which was not supposed to carry the passengers and further on the ground that Driver of the vehicle in question was rash and negligent and, as such, owner of the vehicle alone is liable to compensate the claimants.
5. Learned Advocate for the appellant placed reliance on the ruling in Gujawwa Shivanna Gumte and others vs. T.c. Shrikant and others { 2002 (6) Bom.C.R. 295 } in connection with section 95 (1)(b) (i) proviso
(ii) of the Motor Vehicles Act, 1939, in which it was held that persons travelling in goods vehicle not meant and used for systematic carrying of passengers for hire, Insurance Company is not liable to pay compensation.
Another ruling referred to is in the case of New India Assurance Co.Ltd.
vs. Gajanan Mohite : (1998 (1) Civil LJ 44) to contend that Tribunal has to conduct a summary trial before granting interim relief under its powers under section 140 (i.e. No fault liability to pay comepnsation),which is beneficial provision. The ruling in Divisional Manager United India Insurance Company vs. Kantabai Manohar Sonone : 2005 (1) Bom.C.R. is relied in order to submit that insurance company can not be directed to make payment of compensation as there was no additional contract or premium paid for covering the risk of passengers. Another ruling referred to is in the case of Oriental Insurance Co. Ltd. vs. Devreddy Konda Reddy and others : 2003 (6) Bom.C.R. 386 to support the submission that carrying of passengers in goods carriage is not contemplated under the Act of 1988. There is no statutory liability of owner of the vehicle to get his vehicle ::: Downloaded on - 09/06/2013 15:17:54 ::: 4 insured for any passengers travelling in goods carriage and insurer would have no liability therefor.
6. As against these submissions, learned counsel for the respondents/claimants relied on the ruling in Oriental Insurance Co.Ltd.
vs. Nanjappan reported in 2004 (5) All Mah. Rep. (SC )393 to argue that insurer in the first instance is liable to pay quantum fixed by Tribunal to claimants although he can recover it from the insured owner by directly approaching the Executing Court for recovery and executing Court is expected to pass appropriate orders in accordance with law regarding the payment by the owner of the vehicle to the insurer. Reliance is further placed on the ruling in National Insurance Co.Ltd. Vs. Baljit Kaur : (2004) 2 SCC 1 in which the insurer was directed to satisfy the claim and then to recover the amount from the owner of the vehicle. In the ruling of New India Insurance Co. vs. Satpalsingh AIR 2000 SC 235, it is observed with reference to Motor Vehicles Act of 1988 ( Section 147 thereof) that under the new Act an insurance policy covering third party risk is not required to exclude gratuitous passengers in a vehicle, no matter that the vehicle is of any type or class. Hence the decisions rendered under the old Act vis-a-vis gratuitous passengers are of no avail while considering the liability of the insurance company in respect of any accident which occurred or would occur after the new Act came into force.
7. The liability to pay compensation at an interim stage in view of Section 140 of the Motor Vehicles Act, 1988 is on the principle of no fault as ::: Downloaded on - 09/06/2013 15:17:54 ::: 5 it is a beneficial provision intended to assist the claimant to receive the amount without delay until final hearing and disposal of the main Petition.
Once the claimant is able to show that the accident in question arose out of the motor vehicle which resulted into death or permanent disablement and claim is filed against the insurer as well as the owner of the vehicle. Prima facie upon establishing these ingredients the amount of compensation is payable on the ground of no fault liability in the sum of Rs. 50,000/- on account of death and Rs. 25,000/- on account of permanent disablement. It is not necessary for the claimant at interim stage that too in an application u/s. 140 of the Act of 1988 to plead and establish wrongful act /negligence or fault of the owner or any other person notwithstanding wrongful act or default on the part of the claimant for disablement on the part of deceased victim. Chapter X of the Motor Vehicles Act, 1988 deals with the liability without fault in certain cases. Under section 140 of the Act, where death or permanent disablement of any person has resulted from an accident arising out of the use of the motor vehicle or motor vehicles, the owner of the vehicle shall, or as in the case may be, owners of the vehicle, shall jointly and severally liable to pay compensation in respect of such death or disablement in accordance with the provisions of this Section. Therefore, in such cases, in the interest of the claimant or dependent of the deceased victim interim order u/s. 140 has a social purpose and can be passed against the owner as well as insurer in respect of the motor vehicle once the Tribunal is satisfied prima facie that the accident arose out of the use of motor vehicle which resulted in ::: Downloaded on - 09/06/2013 15:17:54 ::: 6 permanent disablement or death of a person in any claim made against the owner or insurer of the motor vehicle involved in the accident. There is no need for Tribunal to travel further in order to find out the alleged rashness or negligence or the wrongful act or default of the claimant for disablement or of the deceased victim. As claimant need not establish such facts in the proceeding u/s 140 of the Motor Vehicles Act. Although liability of the insurer u/s 140 is not direct it may arise if the owner of the vehicle is liable to pay compensation. Assuming for the sake of arguments that ultimately in the main petition if it is held that insurer is not liable to compensate the claimant, it is possible for the insurer to recover the amount paid by way of compensation at interim stage from the owner of the vehicle responsible and/or owners of the motor vehicles responsible for the accident by approaching the executing Court, in view of the settled position of law appearing from rulings by the Apex Court supra.
7. For these reasons, no sufficient ground is made out to interfere in the impugned order.
8. At this stage, learned Advocate for the appellant prayed that the main petition be heard expeditiously. He submitted that the owner of the motor vehicle concerned in the present case be directed to furnish security bond to the satisfaction of the Tribunal to ensure recovery of the amount by owner at execution stage in future. Learned Advocate for the appellant also prayed for exemption from making payment of interest at the rate of 9 per cent per annum, upon awarded amount. It appears that the amount was ::: Downloaded on - 09/06/2013 15:17:54 ::: 7 directed to be paid within 40 days failing which the interest was payable upon it at the rate of 9 per cent per annum. The exemption from interest is allowed for period of pendency of this appeal only; but the amount of Rs.
50,000/ if any with accrued interest except for period during pendency of this Appeal shall be deposited within four weeks with the Tribunal failing which the total liability to pay interest at the rate of 9 per cent per annum, as already ordered by the Tribunal shall arise on expiry of four weeks from today. For the above reasons, the First Appeal is dismissed.
9. Civil Application No.9300/2008 does not survive. The same is disposed of.
JUDGE sahare ::: Downloaded on - 09/06/2013 15:17:54 :::