Gauhati High Court
National Insurance Co. Ltd vs Khagen Ch. Das And Ors on 23 October, 2018
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
MAC APPEAL NO. 166 OF 2011
National Insurance Company Limited
... Appellant
-Versus-
Shri Khagen Chandra Das & others
..Respondents
BEFORE
HON'BLE MR. JUSTICE KALYAN RAI SURANA
For the appellant : Mr. S.S. Sarma, Sr. Adv.
Mrs. L. Sharma,
Ms. M. Mazumdar, Advs.
For the respondents : None appears
Date of hearing &
judgment : 23.10.2017.
JUDGMENT AND ORDER (ORAL)
Heard Mr. SS Sarma, the learned Senior Counsel assisted by Ms. M. Mazumdar, the learned counsel appearing for the appellant. None appears on call for the respondents.
2) By this appeal under Section 173 of the Motor Vehicle Act, 1988 the appellant has challenged the judgment and order dated 30.06.2011 passed by the learned Member, MACT, Kamrup, Guwahati in MAC Case No.2561/2007.
MAC Appeal No.166 of 2011 Page 1 of 83) The respondent No.1 is the claimant in MAC Case No.2561/2007. In the claim petition, the respondent No.1 projected that on 06.09.2007, while he was standing on the side of the road, a motor cycle bearing Registration No.AS-01-AB-8389 which was driven by the respondent No.3 in a rash and negligent manner, had hit him from behind and as a result he sustained grievous injuries on his person. Hence, the respondent No.1 had filed a case claiming compensation. The respondent No.2 is the owner of the said motor cycle. The appellant, who was the opposite party No.1, by filing their written statement, took the usual plea as to the maintainability, the claim being exaggerated and without any basis and the insurer was not liable to pay any compensation until and unless it was proved that the driver has a valid licence and the conditions of the policy was not violated. By filing additional written statement, the appellant had stated that the respondent No.3, who was driving the motor cycle had a driving licence in respect of Light Motor Vehicle (LMV), which was not for valid driving motor cycle and, as such, denied their liability for violation of the terms and conditions of the policy. The respondents No.2 & 3 had also filed their written statements claiming that the respondent No.3 had a valid licence.
4) On the basis of pleadings, the learned Tribunal framed the following issues for adjudication:
1) Whether claimant's husband, Sri Khagen Chandra Das, sustained injuries in the alleged road accident dated 06.09.2007 involving the vehicle bearing Registration No.AS-
01/AB-8389 and whether the said accident took place due to rash and negligent driving of the driver of the offending vehicle?
MAC Appeal No.166 of 2011 Page 2 of 82) Whether the claimant is entitled to receive any compensation and, if yes, what will be the quantum of compensation and by whom amongst the opposite parties, the said compensation amount will be payable?
5) The respondent No.1 examined himself as the sole witness. The appellant examined the Assistant Officer of the District Transport Office, Kamrup, who had deposed that the driving licence No.NT- 655/07/K in the name of Dipankar Medhi was only for driving LMV, the licencee was not authorized to drive motor cycle and the heavy motor vehicle. He had proved the driving licence register in original as Exhbt.A. The respondents No.2 & 3 did not give any evidence and did not prove the driving licence of respondent No.3.
6) In respect of issue No.1, it was decided in favour of the claimant by holding that the deceased had sustained grievous injuries due to rash and negligent driving of the offending vehicle. In respect of issue No.2, the learned Tribunal had arrived at a finding that the respondent No.2 was authorized to drive only LMV but he was not authorized to drive the motor cycle. It was further held that since the driver in the present case was entitled to drive only LMV, he did not have an effective driving licence for driving motor cycle and, as such, there was certainly a violation of the policy conditions with regard to clause of driver in the policy. It was also held that when there was a violation of terms and conditions of the policy, the insurer can avoid the liability under the policy to indemnify the insurer. However, by holding that the violation of policy condition being a matter between the insured and the insurer, that cannot affect the right of the third party or any other person, who is entitled MAC Appeal No.166 of 2011 Page 3 of 8 to realization the compensation from the insured, directed the award to be paid by the appellant. The appellant was given liberty to recover the said money from the insured/owner of the vehicle by holding that the insurer cannot escape the responsibility to satisfy the compensation so far the claim is concerned. Accordingly, an amount of Rs.2,43,000/- was awarded in favour of the respondent No.1 together with interest @ 6% per annum from the date of filing of the claim petition i.e. 03.12.2007 till payment.
7) The learned senior counsel for the appellant has submitted that it was a specific finding of the learned Tribunal that the respondent No.2, who was driving the motor cycle did not have a valid licence to drive that class of vehicle, there was no justification to direct the insurer/appellant to satisfy the award and then go for recovery of the amount. In view of the further categorical finding that the motor cycle was being driven in violation of the policy condition, it is further submitted that if there is a violation of the policy condition, the appellant cannot be saddled with any liability and it was for the same reason the learned Tribunal has affixed the liability only on the owner of the vehicle i.e. respondent No.2, therefore, the learned Tribunal had committed error in issuing a direction to the appellant to satisfy the award and then go for recovery of the amount. The learned senior counsel for the appellant has also relied on the case of National Insurance Company Ltd. Vs. Parvathneni, (2009) 8 SCC 785, by which the said case was referred to the Hon'ble the Chief Justice, Supreme Court of India, for considering constitution of a larger Bench for considering whether the court, inter alia, can compel the insurer to pay even if there was no liability.
MAC Appeal No.166 of 2011 Page 4 of 88) Having considered the submissions made by the learned Senior Counsel for the appellant, the only point which is required to be decided herein is whether under the facts and circumstances of the case, the learned Tribunal was justified to direct the appellant to satisfy the award and then go for recovery of the compensation from the insured.
9) It is seen that the learned Tribunal had relied on the provisions of Section 149 of the Motor Vehicle Act for the purpose of ordering the appellant for payment of the award and then to realize the amount from the insured. In this connection, nothing has been placed before this Court to show that even if the offending vehicle was driven in violation of the terms of the insurance policy i.e. without holding a valid licence to drive the motor cycle, the appellant would still be liable to satisfy the compensation award.
10) In the present case in hand, the claim petition was filed under Section 166 of the Motor Vehicle Act. It is further seen that the respondent No.2 did not take care to satisfy herself as to whether the respondent No.3, who was allowed to drive the motor cycle, had a valid driving licence enabling the respondent No.3 to drive the motor cycle. In the present case, as the respondent No.3 did not hold a valid licence to drive the motor cycle class of vehicle, the liability was fastened by the learned Tribunal on the owner of the vehicle. Therefore, this is not a case where the respondent No.3, as a driver of the motor cycle was driving the motor cycle under any mis-conception of having licence for the same class of vehicle or the endorsement to drive the motor cycle was fake which could not be detected by exercise of due prudence by the respondent No.2. This Court is constrained to hold that this is not a fit case for passing on MAC Appeal No.166 of 2011 Page 5 of 8 the liability to satisfy the award on the appellant with liberty to recover the amount from the owner.
11) This Court in MAC Appeal No.242/2010 (New India Assurance Company Limited Vs. Md. Mahboob Alom Laskar @ Mahboob Hussain Laskar and others) by the judgment and order dated 09.03.2017 in paragraphs -11, 17 & 18 held as follows:
"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."
............................
"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. MAC Appeal No.166 of 2011 Page 6 of 8 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 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)."
12) In view of the discussion above, this Court finds as the offending vehicle i.e. motor cycle was driven in violation of the terms of the insurance policy. The respondent No.3 did not have a valid driving licence to drive the motor cycle, which constitutes a different class of vehicle than the LMV, for which the respondent No.3 had a valid licence. Therefore, this Court is inclined to interfere with only that part of the impugned judgment and award dated 30.06.2011, passed by the learned Member, MACT, Kamrup, Guwahati in MAC MAC Appeal No.166 of 2011 Page 7 of 8 Case No.2561/2007, wherein the appellant was directed to satisfy the award and to recover the same from the respondent No.2/owner of the motor cycle bearing registration No. AS -01-AB-8389. Without interfering with the quantum of the award, the impugned judgment and award is modified with the extent that the respondent No.1 will be at liberty to enforce the award against the respondents No.2 & 3. Accordingly, the appellant is absolved from its liability to satisfy the award.
13) This appeal stands allowed and the impugned judgment and award dated 30.06.2011 passed by the learned Member, MACT, Kamrup, Guwahati in MAC Case No.2561/2007 stands modified to the extent as indicated above.
14) Parties are left to bear their own cost. 15) Let the LCR be returned forthwith. 16) On receipt of the record, the learned Tribunal shall do the
needful for enforcement of the award against the respondents No.2 & 3 in accordance with law.
17) Registry may refund the statutory deposit, if any, back to the appellant.
JUDGE MKS/ MAC Appeal No.166 of 2011 Page 8 of 8