Karnataka High Court
United India Insurance Company ... vs Siddanna Nimbanna Jawali And Another on 9 January, 2001
Equivalent citations: 2001ACJ1774, ILR2001KAR1670, 2001(3)KARLJ240, 2001 AIR - KANT. H. C. R. 966, 2001 AIHC 2575, (2001) 2 CIVILCOURTC 664, (2001) 3 KANT LJ 240, (2001) 2 TAC 546, (2002) 3 RECCIVR 665, (2001) 3 ACJ 1774, (2001) 3 CIVLJ 64
Author: R. Gururajan
Bench: R. Gururajan
JUDGMENT
1. This appeal is filed by the insurance company questioning the judgment of the First Additional District Judge in MVC No. 5237 of 2000. The facts in brief are as under:
The first respondent-insured obtained an insurance policy in respect of his car bearing No. KA 33 M 4578. The first respondent filed a claim petition in MVC No. 525 of 1997 claiming compensation for the injuries sustained by him in an accident occurred on 9-8-1997 involving his own car. The said matter was contested. The Tribunal allowed the claim petition and directed the driver and the insurance company to pay compensation of Rs. 2,49,000/- jointly and severally to the appellant/petitioner and an interest of 6% is also granted. This judgment is challenged in this appeal.
2. The only contention urged by the Counsel for the insurance company is that a legal error has been committed by the Tribunal in granting compensation to the owner on account of the negligence of his driver. According to him, the policy does not cover a case like this. The policy covers only third parties risk and not the insured. The insured cannot be put on par with the third party. Per contra, learned Counsel for the respondent contends that a careful reading of the policy would show that the insured is also covered under the policy.
3.1 have heard the learned Counsel for the parties and gone through the impugned order. In the impugned order, the Tribunal has noticed that the owner of the vehicle is not debarred from travelling in his own car. If some unfortunate event happens the owner cannot be denied the compensation. In this view of the matter, the Tribunal has fastened the liability on the insurance company. To understand the policy one has to refer to the very policy itself. The said policy provides for certain terms, exceptions and conditions. Section 1 deals with loss or damage. Section 2 deals with liability to third parties. General exceptions and Bonus Ma-lus clause is also provided. The endorsements in IMT 5 deal with accidents to unnamed passengers other than the insured and his paid driver or cleaner. Clause 1 of Section 2 no doubt deals with death or bodily injury to any person including occupants carrier' in the motor car. It is the argument of the respondent that the owner is also an occupant of the motor car and therefore he is entitled for compensation. The said argument though at the first blus.h is very attractive but on deeper consideration it cannot he accepted for the simple reason thai Section 2 deals with liability to third parties and third parties cannot be said to include the owner as well. The word 'occupant' is referable to the third party. Moreover the endorsement IMT 5 categorically states that in consideration of the payment of an additional premium it is hereby understood and agreed that the company undertakes to pay compensation on the scale provided below for bodily injury as hereinafter defined sustained by any passenger other than the insured and/or his paid driver, attendant or cleaner and/or a person in the employment of the insured coming within the scope of the Workmen's Compensation Act. Even otherwise, the policy is between the insured and the insurance company, unless and otherwise a specific clause is provided for coverage of the insured also nothing can be read into a policy thereby widening the very conditions and applicability of the policy. Therefore from the reading of the very policy it is clear to me thai the insured owner cannot said to be a person covered by this policy. In these circumstances, I am of the view that the finding of the learned Judge is unsustainable.
4. Learned Counsel for the parties have referred to the various decisions in support of their arguments.
Learned Counsel for the appellant relies on a judgment in Minu. B. Mehta and Another v Balkriskna Ramchandra Nayan and Another , wherein the Supreme Court has noticed the objects of Section 95 particularly with reference to the liability of the owner or the insurance company. The Supremo Court in para 21 states as under:
The liability of the owner of the car to compensate the victim in a car accident due to the negligent driving of his servant is based on the Law of Tort. Regarding the negligence of the servant the owner is made liable on the basis of vicarious liability. Before the master could be made liable it is necessary to prove that the servant was acting during the course of his employment and that he was negligent".
Again in para 23 it is observed as under:
"Under Section 95(l)(b)(i) of the Act, it is required that policy of insurance must be a policy which insures the person against any liability which may be incurred by him in respect of death or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place. It may be noted that what is intended by the policy of insurance is insuring a person against any liability which may be incurred by him. The insurance policy is only to cover the liability of a person which he might have incurred in respect of death or bodily injury. The accident to which the owner or the person insuring is liable is to the extent of his liability in respect of death or bodily injury and that the liability is covered by the insurance. It is therefore obvious that if the owner has not incurred any liability in respect of death or bodily injury to any person there is no liability and it is not intended to be covered by the insurance. The liability contemplated arises under the law of negligence and under the principle of vicarious liability. The provisions as they stand do not make the owner or the insurance company liable for any bodily injury caused to a third party arising out of the vehicle unless the liability can be fastened on him. It is significant to note that under sub-clause (ii) of Section 95(l)(b) of the Act, the policy of insurance must insure a person against the death or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place. Under Section 95(l)(b) clause (ii) of the Act the liability of the person arises when bodily injury to any passenger is caused by or use of the vehicle in a public place. So far as the bodily injury caused to a passenger is concerned it need not be due to any act or liability incurred by the person. It may be noted that the provisions of Section 95 are similar to Section 36(1) of the English Road Traffic Act, 1930, the relevant portion of which is to the effect that a policy of insurance must be policy which insures a person in respect of any liability which may be incurred by him in respect of death or bodily injury to any person caused by or arising out of the use of the vehicle on road. The expression "liability which may be incurred by him" is meant as covering any liability arising out of the use of the vehicle. It will thus be seen that the person must be under a liability and that liability alone is covered by the insurance policy.
In the case of Oriental Insurance Company Limited v Sunita Rathi and Others, the Supreme Court has ruled that the liability of the insurer arises only when the liability of the insured has been upheld for the purpose of indemnifying the insured under the contract of insurance.
5. Learned Counsel for the respondent relies on a judgment of the Punjab and Haryana High Court in the case of Kushum Sood v United India Insurance Company Limited , In the said case the insured was travelling in a vehicle which was used as a taxi. He was an occupant in the taxi. In those set of facts, the Court has granted the compensation. Hence, the said judgment is wholly not applicable to the facts of this case.
6. The next judgment relied on by the learned Counsel for the respondent is in the case of National Insurance Company Limited v Smt. Deepa Pant and Others. The facts in the said case would show that one Chan-drashekar Pant was posted as Divisional Logging Manager in the Forest Corporation. He met with an accident and died. A claim petition was filed and the same was allowed. The Court noticed the condition in the policy that the occupants may not be carried for hire or reward and held that the deceased was the insured and he did not fall in any of the categories of persons mentioned in the condition. The conditions in the case on hand are different. Hence, the said judgment is also not applicable. Learned Counsel for the respondent also relies on a judgment in the case of Ashok v Smt. Narmadabai. That was a case dealing with regard to a pillion rider. The Court after noticing the comprehensive nature of the policy ordered compensation. Therefore the said judgment is also not applicable to the case on hand.
7. In the light of the clear pronouncement of law by the Supreme Court in the case of Minu B. Mehta, supra, and in the light of the policy it is clear to me that the owner of the vehicle cannot file a claim petition against the insurance company for the accident caused by his own driver and claim compensation. In my view what the Tribunal has done is nothing but introducing a clause which is not there in the policy and which cannot be done by the Tribunal. The Tribunal cannot create a new contract and any such creation is without jurisdiction. In the circumstances this appeal is accepted. The impugned award insofar as fastening the liability on the insurance company is set aside. No costs.