Madhya Pradesh High Court
Smt. Usha Baghel And Ors. vs United India Insurance Company Limited ... on 19 September, 2007
Equivalent citations: 2007(4)MPHT180
Bench: Chief Justice, Abhay Sapre
ORDER A.K. Patnaik, C.J.
1. This is a reference made by order dated 16.7.2007 passed by a Division Bench of this Court in M.A. No. 1576 of 2004.
2. The facts which are necessary to answer this reference are that when Nand Kishore was driving auto-rickshaw he owned, the auto- rickshaw turned turtle and he sustained injuries. He was taken to Nagpur for treatment where he died on 30.12.2003. The auto-rickshaw was financed by District Antvavyasayi Sahakari Vikas Samiti Maryadit, Seoni, and was insured with the United India Insurance Company Limited. The appellants claimed compensation of Rs. 18,16,000/-on account of death of Nand Kishore. The insurer denied its liability for the compensation. The Claims Tribunal determined the compensation of Rs. 4,41,500/-but held in the award that since additional premium was not paid to the insurer to cover the risk of the owner, the insurer was not liable to pay compensation. Aggrieved by the award dated 24.12.2004 passed by Tribunal the appellants filed the appeal M.A. No. 1576 of 2004.
3. Before the Division Bench of this Court hearing the appeal, the learned Counsel for the appellants submitted that the risk of driver- cum-owner was covered by the insurance policy and the counsel for the appellants relied upon the following clause in the insurance policy:
Persons or classes of persons entitled to drive any person including insured provided that person driving holds an effective driving licence at the time of the accident and is not disqualified from holding or obtaining such a licence, provided also that the person holding an effective learner's licence may also drive the vehicle when not used for the transport of passengers/goods at the time of the accident and that such a person satisfies the requirements of Rule 3 of the Central Motor Vehicle Rules, 1989.
4. Learned Counsel for the appellants submitted before the Division Bench that in Smt. Sukhbeer Kaur and Ors. v. National Insurance Company Limited, Indore 2006 (3) T.A.C. 1022 (M.P.), a Division Bench of this Court interpreted a clause in the insurance policy identical to the clause quoted above and held that the risk of insured/owner of the vehicle is also covered by the policy in question and in the event of any accident arising out of use of the vehicle the owner or his legal representatives (as the case may be) is entitled to claim compensation for the injury or death, as the case may be, arising out of the accident in relation to the use of vehicle in question.
5. The Division Bench hearing the appeal passed in the order dated 16.7.2007 referreing the following question to us:
Whether merely by the aforesaid condition of the policy enabling the owner to drive the vehicle, risk of the owner/insured was covered by the policy when no separate premium was paid so as to cover owner's risk.
In the order dated 16.7.2007, the Division Bench also observed that there were other decisions of this Court in Hemlata Sahu and Ors. v. Ramadhar and Anr. , virendra Singh Rajpoot and Ors. v. New India Insurance Company Limited 2007 (1) MPHT 63 (DB) and of the Supreme Court in Dhanraj v. New India Assurance Co. Ltd. and New India Assurance Company Ltd. v. Meera Bai and Ors. (2006) 9 SCC 174 which were in conflict with the view taken by the Division Bench of this Court in Smt. Sukhbeer Kuar and Ors. v. National Insurance Co. Ltd. Indore (supra).
6. We have heard Ms. Aparna Nakra, learned Counsel for the appellants, Mr. Ashok Kumar Ben, learned Counsel for respondent No. 1, Mr. Hemant Namdeo, learned Counsel for respondent No. 2 and Mr. Sanjay Agrawal, Advocate/Amicus Curiae.
7. We find that in the two decisions of the Division Bench of this Court in Hemlata Sahu and Ors. v. Ramadhar and Anr. (supra) and Virendra Singh Rajpoot and Ors. v. New India Insurance Co. Ltd. (supra) as well as the two decisions of the Supreme Court in Dhanraj v. New India Assurance Co. Ltd. (supra) and New India Assurance Company Ltd. v. Meera Bai and Ors. (supra), the clause in the insurance policy relied upon by the learned Counsel for the appellants and quoted in paragraph 3 above did not arise for consideration before the Court. It is only in the Division Bench decision of this Court in Smt. Sukhbeer Kaur and Ors. v. National Insurance Company Limited, Indore (supra) that a clause identical to the one relied upon by the appellants and quoted above was interpreted to cover the risk of the deceased owner of the vehicle in the event of any accident arising out of use of the vehicle so as to entitle the insured himself or his legal representatives to claim compensation for injury or death caused by an accident involving the vehicle.
8. With great respect, we differ from the view taken by the Division Bench in Smt. Sukhbeer Kaur and Ors. v. National Insurance Company Ltd., Indore (supra). A plain reading of the clause relied upon by the appellants and quoted in paragraph 3 above, it is clear that the clause only specifies the persons or classes of persons entitled to drive the vehicle which is insured and it says that any person including the insured can drive the insured vehicle provided such person driving the vehicle holds an effective driving licence and is not disqualified from holding or obtaining such licence and further that the person holding an effective learner's licence may also drive the vehicle when not used for transport of goods at the time of accident and such a person satisfies the requirements of Rule 3 of the Central Motor Vehicles Rules, 1989. Such a clause by itself does not cover the risk of the owner/insured and hence by virtue of this clause, the owner or the insured cannot claim compensation from the insurer for personal injuries suffered by him nor can the legal representatives of the owner/insured claim compensation for death of the owner/insured.
9. We accordingly answer the question referred to us by the Division Bench in the order dated 16.7.2007 in the present appeal by saying that merely by a clause in the policy enabling the owner of the vehicle to drive the vehicle, the risk of the owner/insured was not covered by the policy of insurance, unless additional premium was paid so as to cover the risk of owner/owner driving the vehicle. We may hasten to add that it is open for the appellants to establish before the Division Bench that by virtue of some other clause or condition in the insurance policy, the claimants are entitled to compensation for the death of owner or insured. The case will now be placed before the Division Bench for disposal on merits in accordance with law.