Gauhati High Court
Md. Mahboob Ahmed Laskar vs Abdul Hoque Choudhury on 9 March, 2017
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
1) M.A.C. APPEAL NO. 242/2010
New India Assurance Company Ltd.
.....Appellant
-Vs-
Md. Mahboob alam Laskar @
Mahboob Hussain Laskar & others
....Respondents
For the appellant : Mr. R. Goswami, Adv.
For the respondents : Mr. K.K. Bhatta,
Mr. A.M. Barbhuiya,
Mr. N. Debnath, Advs. for respondents
2) M.A.C. APPEAL NO. 54/2010
Mahboob Hussain Laskar & others
.....Appellant
-Vs-
Abdul Haque Choudhury & others
....Respondents
For the appellant : Mr. A.M. Barbhuiya,
For the respondents : Mr. K.K. Bhatta,
Mr. N. Debnath,
Mr. R. Goswami, Advs. for respondents
BEFORE
HON'BLE MR. JUSTICE KALYAN RAI SURANA
Date of hearing : 02-03-2017
Date of Judgment : 09-03-2017
MAC Appeal No. 242/2010 Page 1 of 10
JUDGMENT & ORDER(CAV)
As both the appeals arise from the same judgment and award dated 10.04.2008 passed by the learned Additional District Judge, Cachar in M.A.C. Case No. 1133/06, both of the appeals are taken up for hearing together.
2) The insurer is the appellant in MAC Appeal No. 242/10 challenging the quantum allowed by the impugned award, where the claimant is arrayed as respondent No.1 and the owner and driver of the offending vehicle are arrayed as respondents No.2 and 3 respectively. However, the claimant has also filed a separate appeal, claiming enhancement of award, which has been registered as M.A.C. Appeal No. 54/10. In the said appeal, the owner and driver of the offending vehicle are arrayed as respondents No.1 and 2 and the insurer has been arrayed as respondent No.3. In this judgment, for the sake of convenience, the parties are referred as arrayed in MAC Appeal No. 242/10.
3) Heard Mr. Raju Goswami, Mr. K.K. Bhatta, Mr. A.M. Barbhuiya, and Mr. N. Debnath, learned counsel for the parties.
4) The respondent No.1/claimant, was travelling from Guwahati to Silchar by Tata Indica Car bearing registration No. MZ-01-B-9727. It was claimed that as the said vehicle was driven in a rash and negligent manner, the said vehicle met with an accident when it hit a truck on its back while it was standing on the road near M.M. Hospital at G.S. Road, under Unien P.S. in the state of Meghalaya. It was claimed that having suffered grievous injury, the claimant was immediately shifted to Shillong Hospital, from where he was shifted to Shillong Nazareth Hospital and subsequently he was referred to G.N.R.C. Hospital at Guwahati on being referred. The driver had a valid driving licence and the vehicle was insured with the appellant.
MAC Appeal No. 242/2010 Page 2 of 105) The claimant filed MAC Case No. 1133/06 before the jurisdictional court, claiming a compensation of Rs.11,50,000/- under various heads for the injuries suffered by him and the case was made over for trial before the Court of Additional District Judge (F.T.C.), Cachar. During the trial the appellant took, amongst others, a plea that the vehicle involved in the accident was a statutory Act liability policy under section 147 of the Motor Vehicles Act, 1988 (hereinafter referred to as the "said Act") and, as such, the occupants were required to be compensated by the owner of the car and the appellant could not be made liable for payment of any compensation to the claimant. While the claimant's side examined only the claimant as PW-1, the appellant/insurer examined one witness as DW-1.
6) On the perusal of Ext.1, the same is a Discharge Certificate issued by the G.N.R.C. Hospital, showing that the claimant was treated in the hospital from 22.05.2006 to 04.06.2006 and was suffering from head injury. Ext.2 (series) are various cash memos and bills for medicines. Ext.3 is the journey ticket and Ext.4 is the Accident Information Report dated 29.06.2006 under Form 54. It has been stated in the evidence-on- affidavit of the respondent No.1/claimant that he was a businessman, being the owner cum mechanic of a TV, Radio shop at Algapur and was earning Rs.8,000/- per month, but due to accident he had become completely disabled and unable to do anything and that he had spent a huge sum of money for his treatment and due to financial hardship, he was unable to continue his treatment. The learned counsel for the appellant had pointed out that the respondent No.1/ claimant had made a categorical treatment in cours e of his cross examination that he was in a fit condition when he was discharged from G.N.R.C. Hospital and he had further stated that he had incurred an expenditure of Rs.2,50,000/- for his treatment but he had not submitted cash memos for the said amount.
7) The DW-1 on behalf of the insurer exhibited the Insurance certificate as Ext.A and Ext.B was the Terms and Conditions of the Policy. As per entries made in Ext.A, the appellant had realized a sum of Rs.725/- as (i) third party MAC Appeal No. 242/2010 Page 3 of 10 basic liability premium, (ii) compulsory PA to owner-cum- driver (for Rs.2,00,000/-), and (iii) WC of employee. An additional premium of Rs.218/- was also realized under the heading "Loading on TP Premium". In his cross examination, the DW-1 had clearly stated that for third party liability, premium of Rs.725/- was charged and on this head an additional amount of Rs.218/- was charged. However, he had also deposed in his cross examination that in Ext.B nothing is written abut the occupants not covered under the policy.
8) As per the impugned judgment and award passed by the learned Additional District Judge (FTC), Cachar (hereinafter referred to as the "learned trial court"), although he found that the respondent No.1/ claimant had spent an amount of Rs.37,497/-, but accepted the explanation that the claimant could not preserve and submit all the cash memos and awarded a sum of Rs.45,000/- towards treatment of the respondent No.1/ claimant. A further sum of Rs.20,000/- was awarded on account of sustaining the injuries on the basis of a finding that he had undergone treatment for 11/2 months, which appears to be an incorrect finding because as per the evidence tendered by PW-1 he had received treatment from 19.05.2006 to 04.06.2006 (i.e. 17 days with both dates inclusive). The respondent No.1 was also awarded a sum of Rs.6,000/- on account of loss of earning by presuming that a young person of 28 years certainly had some earning and Rs.10,000/- was awarded on account of pain and suffering and a sum of Rs.5,000/- was awarded on account of unforeseen expenses. Thus, the total sum awarded was Rs.86,000/-.
9) The learned counsel for the respondent No.2/owner of the offending vehicle has vehemently argued in support of the impugned judgment and award and also adopts the arguments as advanced by the learned counsel for respondent No.1/claimant. He fully supports the contention that it is the liability of the insurer to satisfy the award. He submits that the appellant has collected extra premium from the respondent No.2. This Court finds that the extra premium was not charged to indemnify for injury to passengers, but it was a loading on the third party risk coverage.
MAC Appeal No. 242/2010 Page 4 of 1010) On re-appreciation of the evidence on record, this court is of the view that although the expenses on treatment was Rs.37,497/-, the award of Rs.45,000/- on account of expenses on treatment was at the higher side, but it was not incorrect for the learned trial court to award a slightly higher compensation under this head on accepting the explanation that the respondent No.1 could not produce all bills and vouchers. The learned counsel for the respondent No.1 has argued that there can be no doubt that for head injury, as reflected in discharge certificate (Ext.1), the expenses in one of the 2-3 most expensive private hospitals in Guwahati for 19 days, one must have spent much more than Rs.37,497/- and, as such, this court is of the view that the award insofar as it relates to award of Rs.45,000/- on account of expenses and Rs.44,000/- on other heads, aggregating to a total award of Rs.89,000/- requires no interference. Moreover, in view of the admission in the cross examination by the PW-1 that he was fit when he was discharged, this court does not find any material to enhance the award in favour of the respondent No.1/ claimant. The award passed by the learned trial court is found sustainable and the same is upheld. Resultantly, the MAC Appeal No. 54/2008 by the respondent No.1/ claimant is dismissed.
11) Therefore, the only question that remains to be answered in MAC Appeal No. 242/10 is whether the judgment and award, insofar as it relates to issuance of a direction to the appellant/ insurer to satisfy the award with liberty to recover the amount from the owner of the offending vehicle. In this regard, while the learned counsel for the appellant had referred to the case of (i) New India Assurance Co. Ltd. V. Asha Rani, (2003) 2 SCC 223, (ii) National Insurance Co. Ltd. V. Bommithi Subbhayamma & others, (2005) 12 SCC 243 (iii) National Insurance Co. Ltd. V. Kaushalya Devi, (2008) 8 SCC 246, and (iv) National Insurance Co. Ltd. V. Parvathneni & another, (2009) 8 SCC 785, the learned counsel for the respondent No.1/ claimant has relied on the case of United India Insurance Co. Ltd. V. K.M. Poonam and others, (2015) 15 SCC 297.
MAC Appeal No. 242/2010 Page 5 of 1012) In the case of Asha Rani (supra), the 3 Judge Bench of the Hon'ble Apex Court has held in para 28 as follows:-
"28. An owner of a passenger carrying vehicle must pay premium for covering the risks of the passengers. If a liability other than the limited liability provided for under the Act is to be enhanced under an insurance policy, additional premium is required to be paid. But if the ratio of this Court's decision in New India Assurance Company v. Satpal Singh & Ors. [(2000) 1 SCC 237] is taken to its logical conclusion, although for such passengers, the owner of a goods carriage need not take out an insurance policy, they would be deemed to have been covered under the policy wherefor even no premium is required to be paid.
29. We may consider the matter from another angle. Section 149 (2) of the 1988 Act enables the insurers to raise defences against the claim of the claimants. In terms of clause (c) of sub section 2 of Section 149 of the Act one of the defences which is available to the insurer is that the vehicle in question has been used for a purpose not allowed by the permit under which the vehicle was used. Such a statutory defence available to the insurer would be obliterated in view of the decision of this Court in Satpal Singh's case (supra).
30. For the foregoing reasons, I am in respectful agreement with My Lord the Chief Justice of India that the decision of this Court in New India Assurance Company v. Satpal Singh & Ors. [(2000) 1 SCC 237] has not laid down the law correctly and should be overruled."
13) In National Insurance Co. Ltd. V. Bommithi Subbhayamma & others (supra), the 2 Judge Bench of the Hon'ble Supreme Court has, in paragraph 11, held as follows:-
"11. In view of the aforementioned authoritative pronouncements of this Court, the impugned judgment of the High Court cannot be sustained which is set aside accordingly. This Appeal is allowed. We, however, make it MAC Appeal No. 242/2010 Page 6 of 10 clear that claimants-respondents will be entitled to recover the amount of compensation granted in their favour by the Motor Vehicle Accidents Claims Tribunal from the owner of the vehicle. No costs."
14) In the case of National Insurance Co. Ltd. V. Kaushalya Devi, (supra), the 2 Judge Bench of the Hon'ble Supreme Court, in paragraph 13, has held as under:-
"13. In view of the findings arrived at by the High Court, it must be held that the owner alone was liable to pay compensation to the first respondent herein for causing death of her son by rash and negligent driving on the part of the driver of the truck. The High Court's judgment must be sustained on this ground."
15) In the case of National Insurance Co. Ltd. V. Parvathneni & another, (2009) 8 SCC 785, the Hon'ble Supreme Court, in paragraph 5, 6 and 7 thereof, stated as follows:-
"5. If the insurance company has no liability to pay at all, then, in our opinion, it can not be compelled by order of the Court in exercise of its jurisdiction under Article 142 of the Constitution of India to pay the compensation amount and later on recover it from the owner of the vehicle. In our view, Article 142 of the Constitution of India does not cover such type of cases.
6. When a person has no liability to pay at all how can it be compelled to pay? It may take years for the insurance company to recover the amount from the owner of the vehicle, and it is also possible that for some reason the recovery may not be possible at all.
7. Hence, we direct that the papers of this case be placed before Hon'ble the Chief Justice of India for constituting a larger bench to decide the following questions:
"(1) If an Insurance Company can prove that it does not have any liability to pay any amount in law to the claimants under the Motor Vehicles Act or any other enactment, can the Court yet compel it to MAC Appeal No. 242/2010 Page 7 of 10 pay the amount in question giving it liberty to later on recover the same from the owner of the vehcile.
(2) Can such a direction be given under Article 142 of the Constitution, and what is the scope of Article 142?"
16) As stated hereinbefore, the learned counsel for the respondent No.1/ claimant had relied on the case of United India Insurance Company Limited V. K.M. Poonam and others, (2015) 15 SCC 297 (para 21-40), the 2 Judge Bench of the Hon'ble Supreme Court in para 39 and 40 has court has held as follows:-
"39. The number of persons to be compensated being in excess of the number of persons who could validly be carried in the vehicle, the question which arises is one of apportionment of the amounts to be paid. Since there can be no pick and choose method to identify the five passengers, excluding the driver, in respect of whom compensation would be payable by the Insurance Company, to meet the ends of justice we may apply the procedure adopted in Baljit Kaur's case (supra) and direct that the Insurance Company should deposit the total amount of compensation awarded to all the claimants and the amounts so deposited be disbursed to the claimants in respect to their claims, with liberty to the Insurance Company to recover the amounts paid by it over and above the compensation amounts payable in respect of the persons covered by the Insurance Policy from the owner of the vehicle, as was directed in Baljit Kaur's case.
40. In other words, the Appellant Insurance Company shall deposit with the Tribunal the total amount of the amounts awarded in favour of the awardees within two months from the date of this order and the same is to be utilized to satisfy the claims of those claimants not covered by the Insurance Policy along with the persons so covered. The Insurance Company will be entitled to recover the amounts paid by it, in excess of its liability, from the owner of the vehicle, by putting the decree into execution. For the aforesaid purpose, the total amount of the six Awards which are the highest shall be construed as the liability of the Insurance Company. After deducting the said amount from the total amount of all the Awards deposited in terms of this order, the Insurance Company will be entitled to recover the balance MAC Appeal No. 242/2010 Page 8 of 10 amount from the owner of the vehicle as if it is an amount decreed by the Tribunal in favour of the Insurance Company. The Insurance Company will not be required to file a separate suit in this regard in order to recover the amounts paid in excess of its liability from the owner of the vehicle."
17) It is seen than in the said case, the insurance policy of the owner of the vehicle covered six occupants of the vehicle in question, including the driver, the liability of the insurer was held to be confined to six persons only, notwithstanding larger number of persons carried in the vehicle. But, it was held that there cannot be pick and choose method to identify five passengers, the Hon'ble Supreme Court had ordered the insurer to deposit compensation for all victims and then to recover the excess amount from the owner. In light of above, for the said limited purpose, the excess passengers were treated as third parties in the case of United India Insurance Co. Ltd. V. K.M. Poonam & Ors (supra). However, in light of the language used by the Hon'ble Supreme Court of India in the case of National Insurance Co. Ltd. V. Parvathneni (supra), while referring the matter to be placed before a larger Bench, it is apparent that such orders for pay and recovery are being passed in some cases by the Hon'ble Supreme Court by invoking powers under Article 142 of the Constitution of India. This Court is of the view that such powers is reserved to the Hon'ble Supreme Court to order the insurer to make payment and then to recover and such orders ought not to be passed by this court in exercise of appellate powers under section 173 of the Motor Vehicles Act, 1988. Hence, the prayer made by the learned counsel for the respondent No.1/ claimant to uphold/maintain the judgment and award and to direct the appellant to deposit the compensation as awarded by the learned trial court and then to recover the same from the owner is refused.
18) The impugned judgment and award dated 10.4.2008 passed by the learned Additional District Judge, FTC, Cachar, Silchar in MAC Case No.1133/06, only to the extent of that part of the order directing the appellant to pay the awarded sum to the claimant first and to realize the same from the owner of the offending vehicle if it thinks fit and proper, is modified and/or set aside. The MAC Appeal No. 242/2010 Page 9 of 10 claimant may take steps to realize the awarded sum and interest thereon in terms of the award from the owner of the Tata Indica Car No. MZ-01-B-9723 (i.e. respondent No.2 herein).
19) Accordingly, the appeal filed by the insurer i.e. MAC Appeal No. 242/10 is allowed and the award dated 10.4.2008 passed by the learned Additional District Judge, FTC, Cachar, Silchar in MAC Case No.1133/06 stands modified to the extent as indicated above and the appeal by the claimant i.e. MAC Appeal No. 54/10 is dismissed. There shall be no order as to cost.
20) The Registry shall return back the trial court record.
JUDGE Mks/ MAC Appeal No. 242/2010 Page 10 of 10