Rajasthan High Court - Jodhpur
National Insurance Co. Ltd. vs . Smt.Sahidan Bano & Ors. on 18 August, 2015
Author: Vineet Kothari
Bench: Vineet Kothari
S.B.Civil Misc. Appeal No.595/2000
National Insurance Co. Ltd. Vs. Smt.Sahidan Bano & Ors.
Order dated 18.08.2015
1 of 15
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
:: ORDER ::
S.B. CIVIL MISC. APPEAL NO.595/2000 National Insurance Company Ltd.
Vs. Smt.Sahidan Bano w/o Shri Kursheed & Ors.
Date of Order : Tuesday, 18.08.2015
PRESENT
HON'BLE DR. JUSTICE VINEET KOTHARI
Mr.Jagdish Vyas for the appellant-National Insurance Co. Ltd. Mr.M.S.Soni on behalf of Mr.Rajesh Panwar for the respondents-claimants. None for the Owner/Driver, despite service.
--
By the Court (Oral) :
1. This appeal has been filed by the National Insurance Company Limited, aggrieved by the award of the learned Motor Accident Claims Tribunal, Churu dated 04.05.2000, deciding M.A.C Case No.28/99 - Sahidan Bano w/o Kursheed & Ors. Vs. Sabeer Khan s/o Haji Rahim Khan & Ors., whereby the learned Tribunal, while deciding issue No.4 against the appellant-Insurance Copmany had awarded the compensation of Rs.3,82,200/- for the death of Kursheed @ Khursheed in an accident, which took place on 15/16.12.1998 at 12:30 after midnight, when the said deceased was travelling in Jeep No.DL 4 CD 0771, being driven by non-applicant No.2-Farukh Ali and the said Jeep was owned by applicant No.1-
S.B.Civil Misc. Appeal No.595/2000 National Insurance Co. Ltd. Vs. Smt.Sahidan Bano & Ors.
Order dated 18.08.2015 2 of 15 Sabeer Khan.
2. The findings of the learned Tribunal in the order dated 04.05.2000 for issue No.4, are quoted below for ready reference:-
"9- इस व च रब न क स ब त करन क भ र व पक
सख 3 म कमपन पर ह । व पक सख 2 क ड ईव ग
ल ईस$स प र' 10 पसतत कर स ब त कक ग ह ज+सक
व रद कल म कमपन क ई तक' पसतत करन म$
असफल रह ह । व द न कल म कमपन क रष
आपव3 2000 ड . एन. +. (एस 0 स 0) 62 न 6 इज7ड
एश र$ स कमपन नम श सतप ल ससह अन म$
पततप द त व ध> क अनस र सह? ह न नह? प ई + त ह ।
इस व च र ब न क तनर' व पक म कमपन क
खBल फ कक + त ह ।"
3. The appellant-Insurance Company filed the present appeal aggrieved by the aforesaid findings of the learned Tribunal holding it liable to pay the said compensation, as the appellant- Insurance Company claimed that the deceased Kursheed @ Khursheed was a fare paying passenger in the insured Jeep and the insurance cover was only an "ACT ONLY POLICY" and did not cover the risk of fare paying passengers.
4. By an order dated 03.02.2006, a coordinate Bench of this Court remitted the matter back to the learned Tribunal for returning fresh findings on the aforesaid issue No.4 only, as the same were earlier given merely referring to the judgment of the Hon'ble Supreme Court in the case of New India Assurance Co.
S.B.Civil Misc. Appeal No.595/2000 National Insurance Co. Ltd. Vs. Smt.Sahidan Bano & Ors.
Order dated 18.08.2015 3 of 15 Vs. Satpal Singh, (2000) 1 SCC 237. The said order of the coordinate Bench dated 03.02.2006 is also quoted below for ready reference:-
"Mr.Jagdish Vyas for the appellant.
Mr.Rajesh Panwar for the respondent.
Heard.
This is an appeal by the Insurance Company. It had denied its liability in the light of the fact that the claimants in their claim petition have averred that the victim had hired the jeep for consideration. In that light of the matter, the Insurance Company has claimed that the claim petition should have been dismissed. As regards the Insurance Company, Issue no.4 should have been decided in its favour. Findings on issue no.4 by the Tribunal are cursory and no facts have been discussed except citing a case in the matter of New India Assurance Company Lt. Vs. Shri Satpal Singh. Merely writing the name of the case and then deciding the Issue, does not mean that the Tribunal had cursorily decided the Issue and therefore, findings on Issue No.4 are liable to be set aside. Since the finding on Issue No.4 are set aside, the matter requires to be remanded back for decision of the Tribunal on Issue No.4. To that extent, the matter is remanded back for decision of the Tribunal. The Tribunal after recording its finding on Issue No.4 would send its finding to this Court. Two months time is granted for the same. The parties will make themselves present before the Tribunal on 20.2.2006.
The record of the case be sent back which after decision on Issue No.4 will again be remanded by the S.B.Civil Misc. Appeal No.595/2000 National Insurance Co. Ltd. Vs. Smt.Sahidan Bano & Ors.
Order dated 18.08.2015
4 of 15 Tribunal alongwith its finding as aforesaid.
(Bhagwati Prasad), J."
5. After the remand by this Court vide order dated 03.02.2006, the learned Tribunal returned its findings on issue No.4 again vide its order dated 08.03.2006, which is also quoted as under:-
"मCन नD पकD द र द ग तकE पर गFर कक ह तथ
पर क गई न+ रD क भसलभ तत अ ल कन कक ह।
न ल क इस व च र ब न क स > म$ ह Bन ह
कक क इस र'टन म$ म कमपन क रतE क उललरन
हआ ह। ह स कMत तथ ह कक + प सख ड एल 4 स ड
0771 + प महनO तन+ हन थ । तन+ हन क तन+
उप ग म$ ह? सलB + सकत ह। + कक स प थPगर न
अपन प थ'न पत क पर नम र 28 म$ सपष रप स अककत
कक ह कक मत
M क करP उफ' BरP उस स थ गर रटन
क र + ग धग सर स चर + प ककर अ कर 6B ,
क6 आ+ न क स थ अपन ररशत र? म$ समलन
आए हए थ। + प ककर 200/- र. सभ न समलकर अ
कक थ । अत: र क र'टन अप थP स.2 र'टन गसत
उकV हन क तन+ उप ग म$ नह? क म म लकर
खरजW क उप ग म$ चल रह थ + कक + प क म सलक
क प स रज+सXरन खरजW क उप ग म$ लन क सल नह?
थ म त तन+ उप ग क सल ह? हन प+ कMत थ । म
कमपन न अपन द र पसतत प थ'न पत क + म$ कथन
कक ह कक र क र'टन व द त हन गरक न6न रप
स अपन तन+ स थ'प6तत' क कम म$ ककर क स रर
हन कर रह थ + कक ह हन + प तन+ प +न थ'
S.B.Civil Misc. Appeal No.595/2000 National Insurance Co. Ltd. Vs. Smt.Sahidan Bano & Ors.
Order dated 18.08.2015
5 of 15
हन शर क रह ह तथ इस तन+ प ग हत तत
M
पक क कततप6तत' हत उ3र त म कमपन द र समत
कक ग ह, ज+स क रर व द त र'टन स उVपनन
कततप6तत' क त V उ3र त म कमपन क नह? ह।
इससलए प थ'न पत B रर+ कक +न ग ह। म
कमपन क ओर स एन ए डबल6 1 म6लचन सर र , र B
प >क, नरनल इश रनस कमपन सल. क न कर
ग ह ज+सन न द ह कक हम र क 'ल स हन
+ प सख ड एल 4 स ड 0771 स रB न क न म स
द न क 24.6.98 स 23.6.99 तक अ ध> हत उक ओनल? हत समत क हई ह ज+सक प सलस सख 6700580 ह। ह हन म त तन+ प ग हत हम र द र समत कक हआ ह। द क ई व कक हम र इस हन क ककर क प ग म$ ल त हम र? म कमपन क क ई उ3र त V नह?
ह। उस जसथतत म$ हन स म तन+ तFर पर ज+मम र
ह ग । एन ए डबल6 2 फ रB अप थP स.2 + प च लक क भ
न कर ग ह ज+सन स_ष कह ह कक क6 ,
आ+ , कर , स मCन क ई ककर क त नह? क
और न ह? ककर सल जलक इनक स >न न समलन क
क रर + न पहच न क ह न क क रर मCन इनक ठ
सल । प थPगर न अपन प थ'न पत क पर नम र 28 म$
स क र कर सल ह कक रटन क र + ग धग सर स चर
+ प ककर 200/- र. अ कक ग थ । इस स > म$
म नन स bचच न ल न अपन तनर' 1 (2004) स
एल ट? 1 (एस स ) नरनल इश रनस कमपन सल. नम
श र ससह अन म$ पर न र 106 म$ ह ससद नत
पततप द त कक ग ह।
"We may, however, hasten to add that the Tribunal and the Court must however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each S.B.Civil Misc. Appeal No.595/2000 National Insurance Co. Ltd. Vs. Smt.Sahidan Bano & Ors.
Order dated 18.08.2015 6 of 15 case and in the event such a direction has been issued despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under Sub-clause (ii) of Clause (a) of Sub- section (2) of Section 149 of the Act, the Insurance Company shall be entitled to realise the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it had not been able to do so, the insurance Company may initiate a separate action therefore against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given opportunity to defend at all. Such a course of action may also be resorted when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.
इस न+ र क र रन म$ सपष ह कक द म
कमपन क रतb क उललगन हआ ह त म कमपन स
प थPगर मआ + ल सकत ह। म कमपन हन म सलक
क व रद अलग स क ' ह? कर र सर स6ल कर सकत ह।
र'टन क सम हन समत थ । म कमपन क रतE
क उललरन हआ ह। उक न+ र 1 (2004) स एल ट? 1
(एस स ) नरनल इश रनस कमपन सल. न म श र ससह
अन म$ पततप द त उक ससद नत क अनस र प थPगर
क म कमपन कततप6तत' र सर अ करन क सल
S.B.Civil Misc. Appeal No.595/2000 National Insurance Co. Ltd. Vs. Smt.Sahidan Bano & Ors.
Order dated 18.08.2015
7 of 15
उ3र ह । द म कमपन च ह त कततप6तत' क
अ क गइd र सर + प क म सलक अप थP सख एक स र
Bन अप थP स.2 फ रB च लक स अलग स क ' ह?
कर स6ल कर सकत ह । ह व चर ब न सख 4 इस
पक र तनखर'त कक + त ह।
Sd/-
( एल म न )
न >र
म टर न र'टन प ध>करर
चर (र +.)"
6. Against the said fresh findings of the learned Tribunal, the appellant-Insurance Company has filed its objections before this Court under Order 41 Rule 26 CPC on 03.04.2006 and assailed the findings on issue No.4 to the extent, whereby, the learned Tribunal directed the appellant-Insurance Company to pay and recover from the owner the amount of compensation in question, relying upon the decision of the Hon'ble Supreme Court in the case of National Insurance Co. Ltd. Vs. Swaran Singh, (2004) 3 SCC 297.
7. Learned counsel for the appellant-Insurance Company, Mr.Jagdish Vyas submitted that the judgment in the case of Satpal Singh (supra) relied upon by the learned Tribunal, came to be overruled in the case of New India Assurance Co. Ltd. Vs. Asha Rani, (2003) 2 SCC 223, and in the case of Oriental Insurance Co. Ltd. Vs. Meena Variyal & Ors., (2007) 5 SCC 428, the Hon'ble Supreme Court clarified that Swaran Singh (supra) applies only in the case of third parties involved in the accident, and not the passengers occupying the vehicles for private use covered under the S.B.Civil Misc. Appeal No.595/2000 National Insurance Co. Ltd. Vs. Smt.Sahidan Bano & Ors.
Order dated 18.08.2015 8 of 15 "ACT ONLY POLICY". He also relied upon the various judgments of this Court in support of his contention that the learned Tribunal, even after remand, could not have directed the appellant-Insurance Company to pay and recover the amount of compensation in the face of the findings of fact returned by it, that the deceased Kursheed @ Khursheed was a fare paying passenger in the vehicle meant for private use only, namely, Jeep No.DL 4 CD 0771. He placed reliance on the following judgments:-
1. United India Insurance Co. Ltd. Vs. Smt.Garol Bai & Ors., 2010 R.A.R. 118 (Raj.).
2. United India Insurance Company Ltd., Jodhpur Vs. Smt.Hudi & Ors. (S.B. Civil Misc. Appeal No.765/2010) decided on 03.12.2013.
3. ICICI Lombard General Insurance Company Ltd. Vs. Kesa & Ors., 2012 R.A.R. 38 (Raj.) The relevant portions of the judgments relied upon by the learned counsel for the appellant-Insurance Company, Mr.Jagdish Vyas, are quoted below for ready reference:-
1. New India Assurance Co. Ltd. Vs. Asha Rani, (2003) 2 SCC 223 (Para 6) :-
". . . ... that the meaning of the words 'any person' must also be attributed having regard to the context in which they have been used i.e. ' a third party'. Keeping in view the provisions of the 1988 Act, we are of the opinion that as the provisions thereof do not enjoin any statutory S.B.Civil Misc. Appeal No.595/2000 National Insurance Co. Ltd. Vs. Smt.Sahidan Bano & Ors.
Order dated 18.08.2015
9 of 15 liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods vehicle, the insurers would not be liable therefor."
2. Oriental Insurance Company Ltd. Vs. Meena Variyal, (2007) 5 SCC 428 :-
"17. It is difficult to apply the ratio of this decision to a case not involving a third party. The whole protection provided by Chapter XI of the Act is against third party risk. Therefore, in a case where a person is not a third party within the meaning of the Act, the insurance company cannot be made automatically liable merely by resorting to Swaran Singh ratio. This appears to be the position. This position was expounded recently by this Court in National Insurance Co. Ltd. Vs. Laxmi Narain Dhut. This Court after referring to Swaran Singh and discussing the law summed up the position thus:-
"38. In view of the above analysis the following situations emerge:
1. The decision in Swaran Singh case has no application to cases other than third-party risks.
2. Where originally the license was a fake one, renewal cannot cure the inherently fatality.
3. In case of third-party risks the insurer has to indemnify the amount and if so advised, to recover the same from the insured.
4. The concept of purposive interpretation has no application to cases relatable to Section 149 of the Act."
3. United India Insurance Company Limited Vs. Smt.Hudi (SB Civil Misc. Appeal No.765/2010) decided on 03.12.2013 :-
S.B.Civil Misc. Appeal No.595/2000 National Insurance Co. Ltd. Vs. Smt.Sahidan Bano & Ors.
Order dated 18.08.2015 10 of 15 " Coming to the issue of non-coverage of risk of passenger on account of the policy issued by the appellant being 'act only' policy, a look at the policy (Exhibit-A/1) would reveal that the said policy clearly indicates 'Private Car Policy A Liability Only' and nowhere any additional premium covering risk of passenger has been recovered by the appellant Insurance Company. The law on the issue regarding coverage of risk in case of passengers in a 'act only' policy stands settled in the case of United India Insurance Co. Ltd., Shimla v. Tilak Singh & Ors. : (2006) 4 SCC 404, wherein, the Hon'ble Supreme Court held that where the 6 policy is a statutory policy or an act only policy, a gratuitous passenger in a private vehicle would not be covered for any bodily injury or death under the policy of insurance. Recently in the case of National Insurance Company Limited v. Balakrishnan & Anr. :
(2013) 1 SCC 731 the Hon'ble Supreme Court distinguished comprehensive/package policy from the 'act policy' and relying on the circular issued by the Insurance Regulatory and Development Authority (IRDA) held that act only policy cannot cover risk of an occupant in a car, but in a comprehensive/package policy, the liability would be covered. In view of the law laid down by the Hon'ble Supreme Court and the fact that in the present case the policy (Exhibit-A/1) is only an act policy and the deceased even according to the case of the claimants was a gratuitous passenger in the jeep, which was a private vehicle, the finding on issue No.3 is reversed and it is held that the Insurance Company is not liable for payment of compensation. Consequently, the appeal is allowed. The award dated 12.04.2010 passed by the Tribunal is modified to the extent that appellant (non-
S.B.Civil Misc. Appeal No.595/2000 National Insurance Co. Ltd. Vs. Smt.Sahidan Bano & Ors.
Order dated 18.08.2015 11 of 15 claimant No.3) United India Insurance Company Limited shall not be liable to make payment of the amount of compensation and the application filed by the claimants as against the appellant Insurance Company shall stand dismissed. No costs.
Sd/-
(ARUN BHANSALI), J."
4. United India Insurance Co. Ltd. Vs. Smt.Garol Bai & Ors., 2010 R.A.R. 118 (Raj.) :-
"7. In view of this, obviously the said premium could not cover the risk of passengers travelling in the said jeep in the present Act only policy on payment of hire charges and, therefore, the liability to pay compensation for the deceased passenger Suresh cannot be fixed on the insurance company.
8. Accordingly, this appeal of the insurance company deserves to be allowed on this ground and the same is accordingly allowed. The amount already deposited / paid by the appellant insurance company shall be recoverable from the owner of the said vehicle insured with the insurance company. The claimants shall also be free to recover their amount from owner and not from the insurance company. The appellant-insurance company may take appropriate proceedings before the learned Tribunal for recovery of the amount already paid or deposited by it from the owner of the vehicle.
9. The appeal is accordingly allowed. No order as to costs."
5. ICICI Lombard General Insurance Co. Ltd. Vs. Kesa & Ors., 2012 R.A.R. 38 (Raj.) :-
"6. A perusal of the impugned judgment reveals that after due consideration of the evidence on record, the tribunal S.B.Civil Misc. Appeal No.595/2000 National Insurance Co. Ltd. Vs. Smt.Sahidan Bano & Ors.
Order dated 18.08.2015 12 of 15 has arrived at a categorical finding that the vehicle was insured as private car under "Act Only Policy" and no premium was charged by the insurance company is as to cover the risk of occupants of the vehicle and therefore, it is not liable to pay the compensation. However, the tribunal opined that allowing gratuitous passengers or a fare paying passengers in a private vehicle used as taxi amounts to breach of policy condition and therefore, the insurance company is liable to satisfy the award and then to recover the same from the owner of the vehicle.
7. In Baljit Kaur's case (supra), the Hon'ble Supreme Court opined that the provisions of Section 147 of the Act does not mandate to cover the class of cases where gratuitous passengers for whom no insurance policy was envisaged and for whom no insurance premium was paid. The court observed that the liability of owner of the vehicle to insure it compulsorily by virtue of the amendment introduced in Section 147 included only the owner of the goods his authorised representative carried in the vehicle besides the third parties and thus, in absence of the policy issued covering of the risk of the passengers who are gratuitous or otherwise, no liability can be fastened upon the insurance company. The directions to the insurance company to satisfy the award and then to recover from the owner of the vehicle were issued keeping in view that the law was not clear in this regard so far.
8. But then, now the law having been settled by the Hon'ble Surpeme Court in Baljit Kaur's case (Supra), in absence of any policy isued covering the risk of occupants of vehicle, the tribunal was not justified in directing the appellant-insurance company to pay the compensation and S.B.Civil Misc. Appeal No.595/2000 National Insurance Co. Ltd. Vs. Smt.Sahidan Bano & Ors.
Order dated 18.08.2015 13 of 15 then to recover from the owner of the vehicle.
9. In this view of the matter, the appeal deserves to be allowed. The impugned judgment and award to the extent it directs the appellant-insurance company to pay the compensation to the claimants and then to recover from the owner of the vehicle is set aside. The claim petition preferred by the respondents/claimants as against the appellant-insurance company shall stand dismissed. No order as to costs."
8. Learned counsel for the appellant-Insurance Company, Mr.Jagdish Vyas therefore, submitted that the findings of the learned Tribunal upon payment in the impugned order dated 08.03.2006 deserves to be set aside, to the extent it directs the appellant- Insurance Company to pay and recover by misapplying the judgment of the Hon'ble Supreme Court in the case of Swarna Singh (supra), though the findings of fact to the extent of the deceased being a fare paying passenger in the vehicle for private use, namely, Jeep No.DL 4 CD 0771, covered under the "ACT ONLY POLICY", are correct and deserve to be sustained.
9. Learned counsel for the respondents-claimants, Mr.M.S.Soni for Mr.Rajesh Panwar however, supported the impugned directions of the learned Tribunal to pay and recover.
10. I have heard the learned counsels for the parties and perused the record and the judgments cited at the Bar.
S.B.Civil Misc. Appeal No.595/2000 National Insurance Co. Ltd. Vs. Smt.Sahidan Bano & Ors.
Order dated 18.08.2015 14 of 15
11. In view of the settled legal position, as aforesaid, it remains no longer res integra that the impugned direction of the learned Tribunal in the impugned order dated 08.03.2006 to the appellant-Insurance Company to pay and recover, cannot be sustained. The insurance cover in question was admittedly, "ACT ONLY POLICY" and did not cover the risk of fare paying passenger, like deceased Kursheed @ Khursheed, who admittedly hired the Jeep alongwith 4-5 persons for Rs.200/- on the fateful day of accident on 15/16.12.1998. He therefore, could not be said to be a 'third party' covered by the said policy in question, as rightly found by the learned Tribunal in the order dated 08.03.2006. The learned Tribunal has however, fallen into error in applying the judgment in the case of Swaran Singh (supra), in which the direction to pay and recover is given only for the compensation awarded to a third party and this decision was clarified by the Hon'ble Supreme Court in the later decision in the case of Meena Variyal (supra) vide aforesaid quoted portions. Therefore, the impugned direction in the order dated 08.03.206 deserves to be set aside. The owner and driver of the Jeep will however, continue to be liable to pay the compensation payable to the legal representatives of the deceased Kursheed @ Khursheed. Nobody has represented them before this Court, despite service.
S.B.Civil Misc. Appeal No.595/2000 National Insurance Co. Ltd. Vs. Smt.Sahidan Bano & Ors.
Order dated 18.08.2015 15 of 15
12. Accordingly, this appeal of the Insurance Company is allowed and issue No.4 is decided in favour of the appellant- Insurance Company, while holding that the appellant-Insurance Company would not be liable to pay the amount of compensation determined by the learned Tribunal for the death of Kursheed @ Khursheed in the said accident. The amount, if any, already paid by the Insurance Company in the present case, will also be recoverable from the owner/driver of the vehicle and the Insurance Company would be free to proceed to recover the same in accordance with law. No costs. Copy of this order may be sent to the concerned parties as well as the learned Tribunal below forthwith.
(Dr. VINEET KOTHARI), J.
Skant/- I.No.4(M)