Bombay High Court
Oriental Insurance Co. Ltd. vs Rukmani Chandrabhan Patil And Ors. on 11 September, 1992
Equivalent citations: 1994ACJ556
JUDGMENT A.A. Halbe, J.
1. These appeals arising out of the awards passed by the Motor Accidents Claims Tribunal, Aurangabad, have been disposed of by this common judgment as the main claim petitions arise out of the accident doled 22.2.1991, involving Matador vehicle No. MVF 8236 and truck No. TN 27X 1168, wherein about ten persons died and seventeen persons sustained injuries. The Claims Tribunal awarded compensation of Rs. 25,000/- in each application under Section 140 of the Motor Vehicles Act. The appellant insurance company has been impleaded in those awards and it is the insurance company that has come up in all those appeals, inter alia, contending that the owner and insurer of truck No. TN 27X 1168 have not been impleaded in the claim petition by the claimants and further that the owner of the Matador used the vehicle for hire and reward contrary to the terms and conditions of the insurance policy and for these reasons, all the appeals should be allowed and the award passed by the Tribunal in various applications against the insurance company should be set aside.
2. This has indeed been countered by the claimants as well as the owner of the Matador No. MVF 8236 on the ground that law does not enjoin upon the claimants to implead the owners and insurers of both the vehicles, since the liability is joint and several and further that under Section 140 of the Motor Vehicles Act the defence of breach of condition of the insurance policy cannot be pleaded by the insurance company. The liability under the said provision is absolute, indefensible and unimpeachable.
3. In order to appreciate these arguments, few facts may be narrated and they are that on 22.2.1991, the deceased and other passengers were travelling from village Fatepur towards Bhayegaon for attending the marriage in Matador vehicle No. MVF 8236 owned by the original respondent No. 1 and insured with the respondent No. 2, company. It seems that when that Matador vehicle was returning, it dashed against truck with the above number and ten persons including the driver died whereas seventeen persons sustained injuries. The main allegation of the claimants in all these claim petitions was that the driver of the Matador vehicle was rash and negligent while driving the said vehicle when the accident took place. The claimants filed various claim applications for recovery of compensation of Rs. 25,000/- on no fault basis under Section 140 of the Motor Vehicles Act, 1988.
4. In all these petitions, the insurance company took a stand that under Section 140 of the said Act, the owners and insurers of both the vehicles should have been joined in the claim petitions and in absence of the owner and insurer of the truck, the liability to satisfy the award cannot be foisted on the present appellant insurance company. It was also contended that the said Matador was used for hire and reward contrary to the terms and conditions of the policy and hence under Section 149 of the said Act, the insurance company is absolved from the liability on account of the breach committed by the insured.
5. The learned Member of the Tribunal, after considering the case-law on those points, gave a clear finding that it was not necessary for the claimants to join the owners and insurers of both the vehicles and the same lapse could not be fatal in view of the liability to satisfy the award being joint and several and the claimants had option to recover the entire amount of the award from the owner and insurer of one vehicle. The learned Member also came to the conclusion that the plea regarding breach of terms and conditions of the policy under the above provision is also not available in view of various cases decided by the courts and accordingly the Member of the Tribunal was pleased to allow all those claim petitions and award compensation of Rs. 25,000/- in case of each death on the basis of no fault liability as contemplated under Section 140 of the Motor Vehicles Act.
6. While hearing these appeals, learned advocate for the respondents-claimants has raised a point that the court fee of Rs. 26.25 paid on each appeal by the appellant insurance company is not proper court fee and that the ad valorem court fee should be recovered in terms of the provisions of the Bombay Court Fees Act.
7. Now, so far as the facts are concerned, it is not in dispute that the Matador MVF 8236 met with accident on 22.2.1991 and ten persons died and seventeen persons were injured. Various claims have been preferred in various petitions against which the above appeals have been filed. It is not in dispute that the respondent Prakashlal Jaiswal is the owner of the Matador and the present appellant insurance company is the insurer on that date.
8. The question which needs consideration is whether non-joining of the owner and insurer of the truck involved in this accident is fatal to the claims. The learned advocate for the appellants has drawn my attention to Section 140 of the Act and has contended that it obliges the claimants to implead the owners and the insurers of the motor vehicle or motor vehicles although the liability may be joint and several. As the wording reads, it is necessary that the owners and insurers of the Matador and truck should have been impleaded. According to him, such is not the case when one looks to the application about main claims under Section 166 of the Act. That section requires the application to be made by the person who has sustained injury or by the owner of the property or by the legal representative of the deceased or the agent of the insured person. Under Section 168, the claimant has to give notice to the parties including the insurer to show cause against the claim and after recording the evidence, the Tribunal can pass an award. This would, therefore, according to the learned advocate for the appellant, show that there is no specific mention of the owners and insurers of the vehicles being impleaded in case of composite accident involving two vehicles. Whereas under Section 140 there is a clear reference that the owner or the owners, the insurer or insurers of one or more vehicles shall be jointly and severally liable to pay the compensation under the no fault liability. He has, therefore, urged that claimants have committed breach of provision under Section 140 of the Act and the claims are liable to be dismissed for want of necessary parties. On the other hand, the learned advocate for the claimants as well as the owner of the Matador has forcefully contended that Section 140(1) clearly mentions that the liability of the owner or owners, insurer or insurers of one or two vehicles is joint and several and in that event, the party has an option to get the award satisfied only from one party and not necessarily from all the parties including the owners and insurers.
9. This argument seems to be substantiated by various rulings. In the case of Samati Deb Burma v. State of Tripura 1987 ACJ 205 (Gauhati), it is observed that in case of no fault liability, the petition for claim can be maintained against one owner and insurer and that failure to implead owner or insurer of other vehicle would not be fatal. This is in view of the provision that the liability is joint and several and the claimant can recover the entire amount of the award from one party.
10. This view has been propounded even earlier in the case of State of Tamil Nadu v. P.K. Anandan 1982 ACJ 358 (Madras). The court observed that in case of a collision between two vehicles, a claim for compensation by the injured person against the owner of one vehicle can be maintained and failure on his part to implead the owner of other vehicle would not be fatal. In the case of Shankar Bhai v. Abdul Aziz , the High Court of Madhya Pradesh observed that owners and drivers of both the vehicles are jointly and severally liable and the claimants can claim compensation from any one of them. The court further observed that non-impleading the owner, driver and insurer of the vehicle will not reduce the extent of legal liability of the owner and insurance company of one of the vehicles. I feel that in view of the joint and several liability of the owner and insurer, it cannot be pleaded by the appellant insurance company that the petitions were liable to be dismissed because the owner and insurer of the truck No. TN 27X 1168 have not been made a party. The argument of the learned advocate for the appellant that the wording of Section 140 of the Act makes it necessary for the claimants to implead all owners and insurers of the vehicles does not appear to be sustainable and hence the same has to be negatived.
11. The next question which has been agitated is whether there was breach of condition of the insurance policy on the part of the owner under Section 149 of the Motor Vehicles Act. Now, in this behalf, it will have to be stated that the appellant insurance company did not call for the permit to show that the owner could not provide the vehicle for hire or reward. It is also clear that no documents have been brought on record by the insurance company to prove that there has been breach of condition, although there was sufficient opportunity for the appellant to get the said evidence produced under rule 307 of the Bombay Motor Vehicles Rules, 1959. The appellant should have examined the witnesses to show that there was a breach of condition of the policy on the part of the owner and hence the insurer is not bound to satisfy the award. Rules 306-A to 307 provide for the summary procedure for disposal of the claims under Section 140 of Motor Vehicles Act, but all the same, the right of the party to examine witnesses is not barred under these rules. If that be so, it was the bounden duty of the appellant insurance company to have got tendered on record the documents, which would have established the breach of condition of policy on the part of the owner. The argument advanced is that although the policy covered only nine passengers, it was clear that 29 persons were found inside the Matador vehicle and hence there was breach of condition, the passengers were gratuitous passengers carried on hire, but that was not covered by the policy. It seems that the Matador is a passenger vehicle, but not a public carrier.
12. Now, in this behalf, the learned advocate for the respondents-claimants has drawn my attention to various rulings, which would show that the scope of Section 140 appears to be identical with Section 92 of the unamended Motor Vehicles Act. The provision in both the sections is same and hence the case-law in regard to Section 92-A can well be pressed into service by the claimants.
13. In the case of Oriental Fire and General Ins. Co. Ltd. v. Malta Chandra Rao 1987 ACJ 174 (AP), the High Court of Andhra Pradesh observed that when the insurance company pleads that there has been a breach of conditions of the insurance policy because the passengers that were carried were gratuitous passengers, it is for the insurance company to establish the same breach. In the case of Pandurang Narayan das Sarada v. Subhash Gopal Changale 1989 ACJ 879 (Bombay), the High Court of Bombay, after considering several decisions, observed that it must be established by the insurance company that there was breach on the part of the insured and that the insured was guilty of violating the promise for infringement of the contract. The court took into consideration the ratio laid down by the Supreme Court in the case of Skandia Insurance Co. Ltd. v. Kokilaben Chandra vadan 1987 ACJ 411 (SC). In this case, it is obvious that the insurance company has not brought on record that the vehicle was carrying Excess number of passengers and that there was breach of condition of the insurance policy. It is not suggested by the learned advocate for the appellant that the appellant was denied opportunity to lead evidence in that behalf and if that be so,' the grievance on that count cannot be countenanced.
14. Apart from that, it would be obvious that under Section 140 such defence would not be available and that would be seen from the case of Ragunath Eknath Hivale v. Shardabai Karbhari Kale 1986 ACJ 460 (Bombay). The facts were that more than permissible number of passengers were travelling in the goods vehicle and it was pleaded that there was not only breach of original Section 96 of the Act, but there was breach of Rule 118 of the Motor Vehicles Rules. It seems that the court, after detailed consideration of these provisions, found that under no fault liability such a plea could not be taken because the truck was used essentially for transport of goods and further that there was a condition that passengers could travel, of course not exceeding a particular number. The court found that since the passengers were allowed to travel, the question of number of passengers would not amount to breach of the condition of the insurance policy with regard to its use. Extending this analogy, it can well be said that in this case, even if it was passenger vehicle, merely because more than the permissible number of passengers travelled, it cannot be said that there has been breach of condition under Section 149 qua Section 140 of the Motor Vehicles Act. Section 149 provides that there can only be breach if vehicle is used for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle not covered by a permit to ply for hire or reward. Now, in this case, it is abundantly clear that no evidence has been brought on record by the insurance company to show that the passengers were travelling on payment of hire or reward. As indicated, it was the duty of the insurance company to have adduced evidence in this regard. But in absence of any such evidence, it cannot be said that there has been a breach of such condition, rendering the award inoperative against the insurance company. The other conditions enunciated in Section 149(2)(a)(i)(a to d) of the Motor Vehicles Act cannot be pressed into consideration by the appellant because they do not relate to the facts of this case. I, therefore, feel that even on that count also the claim of the appellant is not sustainable.
15. Apart from that, it should be observed that the consistent view of the courts is that while dealing with the question of no fault liability, such technicalities should not be gone into and this view has been enunciated in Samati Deb Barma v. State of Tripura 1987 ACJ 205 (Gauhati), wherein the court observed that the question whether or not the injured in the accident were the gratuitous passengers was a matter totally foreign to the determination of claim under Section 92-A of the Act. This particular submission on behalf of the insurance company was rejected in the following words, "the fact of gratuitous passengers was a matter which was totally foreign to the determination of the claim under Section 92-A".
16. It seems that provision of no fault liability has been treated by the Supreme Court in following words. The Supreme Court has observed that Section 92-A is clearly a departure from the usual common law principle that a claimant should establish negligence on the part of the owner or driver of the motor vehicle before claiming any compensation for the death or permanent disablement caused on account of a motor vehicle accident. To that extent, the substantive law of the country stands modified. The special provisions contained in Sections 109-A to 109-C (old Act) providing for a scheme for granting relief to victims or the legal representatives of the victims of 'hit and run' motor vehicle accident cases is another novel effort on the part of the Government to remedy the situation created by the modern society which has been responsible for introducing so many fast moving vehicles on roads.
17. Similarly, the observations of the Gauhati High Court in Samati Deb Barma v. State of Tripura 1987 ACJ 205 (Gauhati), are also very much illuminating. They are as follows:
Let us now read the crucial provisions which deal with 'liability without fault' which purport is made clear not only by the Chapter's caption but in the supplemental substantive provision enacted in Section 92-B, which contemplates that the interim and instant relief sought to be provided under Section 92-A was not in derogation of not only the remedy available under any other law but under any other provision of the Act itself. It is contemplated under Section 92-B that the right to claim compensation under Section 92-A in respect of death or permanent disablement shall be in addition to 'any other light', which right and its character is also with great care and caution indicated within parentheses by legislature stating 'hereinafter in this section referred to as the right on the principle of fault' to make the distinction clear. Before we refer to the language of Section 92-A itself we may at once say that the legislature advisedly created a new liability 'without fault' in the new provision and this liability was, therefore, made limited as respects the financial burden and also expressly specified as respects the persons burdened. There is no doubt, therefore, that this interim relief was sought to achieve a wholesome salutary purpose by providing the minimum instant relief to the needy and deprived, to the destitute, hapless and helpless who had become victims paradoxically of the advanced technology of the modern age. Needless to recall in this connection that the provisions of the new Chapter came to be enacted as a response to judicial clamour for such a measure orchestrated at the highest level in more than one reported decisions of the Apex Court reminding the State of its duties as a 'Welfare State' to respond to pragmatic and humanitarian considerations.
The language of Section 92-A, in our opinion, is terse but pregnant and forceful and leaves little room to make any dent on the inexorable mandate thereof. Sub-section (1) contemplates that in a case of death or permanent disablement of any person which 'has resulted from an accident arising out of the use of motor vehicle or motor vehicles', the owner or owners thereof shall be 'jointly and severally' liable to pay compensation thereunder.
(Emphasis added) Now, in view of this, it would be obvious that the defence raised by the appellant insurance company cannot be sustained and the breach complained of cannot invalidate the award.
18. Apart from that, there is an important provision added to Chapter X relating to no fault liability which is Section 144 of the said Act. The said provision reads that the provisions of this Chapter X shall have effect notwithstanding anything contained in any other provisions of this Act or of any other law for the time being in force. Indeed, a question would arise whether in face of this provision, any of the defences mentioned in Section 149 could be raised by the insurance company after it is established that the insurance company is the insurer as indicated. The foregoing discussion would show that Chapter X has been a serious departure from the common law. No fault liability unknown hitherto has been made a part of the statute and the court has observed that this claim is peremptory, indefensible and conclusive. Of course, this point may not be decided in this case, because no plea has been raised that even if the defence is available to the insurance company in regard to the breach of any of the conditions of the insurance policy and even if it succeeds in proving those breaches, the insurance company cannot plead any of those defences in view of the introduction of Section 144 of the Act, once the contract of insurance is established. That may be raised in appropriate matter wherein the submissions should specifically dwell on this argument. In absence thereof, it would not be proper to decide this question in these appeals.
19. The next question is with regard to the court fees. Admittedly, the appellant has not paid the ad valorem court fees on the claim. Under Rule 129 of the Motor Vehicles Rules, there is special provision of paying the court fees at stipulated rates. Those rates are far below the court fees required to be paid in the civil suits or the other proceedings. However, under Section 7(2) of the Bombay Court Fees Act, it is clearly mentioned that if an appeal is preferred by the insurer or the owner of the motor vehicle, the full ad valorem court fees is liable on the amount at which the relief is valued in the memorandum of appeal, according to scales prescribed under Article 1 of Schedule I. Low rates have been prescribed in the said provision with regard to the appeal to be preferred by any other person. This would, therefore, show that insurer has to pay ad valorem court fees in terms of Article 1 of Schedule I. Here, as indicated, the fees of Rs. 25/- has been paid. Hence, the appellant has to make payment of the difference of the court fees.
20. Accordingly, all the appeals are dismissed with costs. The awards passed by the learned Member of the Motor Accidents Claims Tribunal in various appeals are confirmed. The appellant shall pay forthwith the difference of court fees as indicated above. The appellant is allowed to deposit the cheques of the award amounts. The appellant is granted time of four weeks to pay the difference of court fees as stated in the judgment.