Rajasthan High Court - Jodhpur
National Insurance C0 vs Murlidhar & Ors on 24 August, 2016
Author: Arun Bhansali
Bench: Arun Bhansali
1
IN THE HIGH COURT OF JUDICATURE FOR
RAJASTHAN AT JODHPUR
:JUDGMENT:
S.B. CIVIL MISC. APPEAL NO. 492/2002
National Insurance Company Ltd.
Vs.
Murlidhar & Ors.
S.B. CIVIL MISC. APPEAL NO. 487/2002
National Insurance Company Ltd.
Vs.
Smt. Ratni Bai & Ors.
S.B. CIVIL MISC. APPEAL NO. 493/2002
National Insurance Company Ltd.
Vs.
Pradeep @ Chandu & Ors.
Date of Judgment :: 24.8.2016
PRESENT
HON'BLE MR. JUSTICE ARUN BHANSALI
Mr. Sanjeev Johari, for the appellant/s.
Mr. Parikshit Nayak ) for the respondent/s.
Mr. Manish Pitaliya )
Mr. Hari Singh )
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BY THE COURT:
These appeals have been filed by the appellant - Insurance Company aggrieved against the judgment and award dated 22.4.2002 passed by the Motor Accident Claims Tribunal, Chittorgarh ('the Tribunal'), whereby the Tribunal has awarded a sum of 2 Rs.2,00,000/-, Rs.1,74,000/- and Rs.68,000/- respectively to the claimants alongwith interest @ 9% p.a. from the date of their applications.
The applications for compensation were filed by the claimants, inter-alia, with the averments that on 5.4.1998 at about 11:40 p.m., deceased Bheru Lal, claimants Pradeep and Murlidhar, who were travelling in Mini Truck No.RJ-09-G-1406, the vehicle, which was being driven rashly and negligently by Kalu Singh, the driver of the vehicle, went out of control and turned turtle, all the occupants suffered injuries, to which Bheru Lal succumbed.
Various amounts were claimed by the claimants as compensation for the death of Bheru Lal and the injuries suffered by them.
A reply was filed by the owner and driver of the vehicle, inter-alia, indicating that huge amount of compensation has been sought without any basis and that the vehicle in question was insured with the insurance company and therefore, the insurance company was liable to make payment.
The insurance company also filed its reply disputing the amount of compensation sought and 3 indicating that deceased Bheru Lal and two claimants were illegally travelling in the goods vehicle and if any accident takes place, they themselves are responsible, the driver was not in possession of valid driving licence and as the condition of the policy has been violated, the insurance company is not liable for payment of the amount of compensation.
Based on the plea raised by the parties, six issues were framed. On behalf of the claimants, seven witnesses were examined and 152 documents were exhibited. On behalf of the insurance company, NAW-1 Amar Chand Garg was examined.
Based on the evidence of the parties, the Tribunal came to the conclusion that the accident occurred on account of rash and negligent driving of the driver of the truck, which resulted in injuries to the occupants of the truck. Thereafter, the Tribunal determined the amount of compensation as indicated herein-before and while considering the plea raised by the insurance company came to the conclusion that the licence of the driver (Ex.-7) was produced, which was valid.
Qua the plea raised by the insurance company regarding violation of the policy condition, the Tribunal 4 came to the conclusion that the passengers were third party and relying on judgment in the case of New India Assurance Company Limited v. Satpal Singh : (2000) 1 SCC 237, the Tribunal came to the conclusion that the insurance company was liable even if the passengers were gratuitous passengers and passed the award as indicated herein-before.
It is submitted by learned counsel for the appellants that the Tribunal committed error in holding the appellant - insurance company liable for making payment of compensation, inasmuch as, a passenger in the vehicle cannot be termed as third party and the judgment relied on by the Tribunal already stands overruled by the judgment of the Hon'ble Supreme Court in New India Assurance Company Limited v. Asha Rani : (2003) 2 SCC 223 and therefore, the appellant - insurance company is not liable for making payment of compensation and therefore, the appeal deserves to be allowed.
Learned counsel for the respondents-claimants and owner of the vehicle submitted that there is no dispute about the law laid down by the Hon'ble Supreme Court in the case of Asha Rani (supra), however, a bare look at the insurance cover note Ex.-6 5 issued by the insurance company would reveal that the vehicle-in-question was insured by indicating passenger carrying capacity as 'two' + 'two' and the insurance company had specifically charged Rs.100/- as premium for two non-fair paying passengers ('NFPP') and therefore, the insurance company cannot be absolved from the liability to make payment of the amount of compensation.
It was further submitted that in view of the law laid down by the Hon'ble Supreme Court in National Insurance Company Limited v. Anjana Shyam and Ors. : (2007)7 SCC 445, as the premium has been received for two NFPP, the appellant - insurance company would be liable to satisfy the two bigger awards.
I have considered the submissions made by learned counsel for the parties and have perused the material available on record.
So far as the law laid down by the Hon'ble Supreme Court in the case of Asha Rani (supra), which has been relied on by learned counsel for the appellant is concerned, the said judgment has specifically overruled the judgment in the case of Satpal Singh (supra) by holding that the passenger in a goods 6 vehicle cannot be treated or equated with the expression of 'any person' as indicated under Section 147 of the Motor Vehicles Act, 1988 ('the Act'). It was laid down that before amendment made by the Amendment Act of 1994, even the owner of the goods or his authorised representative carried in the vehicle also were not covered under the provisions of Section 147 of the Act. However, the factual position in the present case is not dependant on the law laid down either in the case of Satpal Singh (supra) and / or Asha Rani (supra), inasmuch as, the appellant - insurance company has specifically undertaken the liability of two NFPP by charging a premium of Rs.100/- and it is well settled that it is open for the insurance company to undertake liability beyond statutory requirements on payment of additional premium and as in the present case, the appellant - insurance company has charged additional premium of Rs.100/- to the extent of two NFPP, the insurance company cannot escape its liability. Qua the third passenger obviously the insurance company cannot be held liable.
In view thereof and in view of the law laid down by the Hon'ble Supreme Court in the case of Anjana 7 Shyam (supra) , the appellant - insurance company would be liable to make payment qua the claimant Murlidhar to the extent of Rs.2 lacs alongwith interest as awarded and qua the legal representatives of Bheru Lal i.e. Smt. Ratni Bai and others to the extent of Rs. 1,74,000/- alongwith interest. Qua the third claimant i.e. Pradeep, who has been awarded a sum of Rs. 68,000/-, the appellant - insurance company would not be liable to make payment.
In view of the above discussion, while S.B. Civil Misc. Appeal Nos. 492/2002 and 487/2002 filed by the appellant - insurance company are dismissed. During the pendency of the appeal, the operation of the award dated 22.4.2002 was stayed by this Court, it would be now required of the appellant - insurance company in the case of Murlidhar and Smt. Ratni Bai to make payment of amount of compensation within a period of six weeks from the date of judgment and as considerable time has elapsed from the date the accident took place and the award was passed, the amount instead of being put in Fixed Deposit as ordered by the Tribunal be paid to the claimant / claimants in Saving Bank Account in proportion as 8 determined by the Tribunal.
S.B. Civil Misc. Appeal No.493/2002 filed by the appellant - insurance company is allowed and the award passed by the Tribunal is modified only to the extent that in MACT Case No.253/2001 (Pradeep v. Kalu Singh), the appellant - insurance company would not be liable to make payment of the amount of compensation.
(ARUN BHANSALI), J.
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