Jammu & Kashmir High Court
Bajaj Allianz General Ins. Co. Ltd vs Satya Devi And Others on 14 January, 2020
Equivalent citations: AIRONLINE 2020 J AND K 6
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
MA 197/2014
IA 586/2014
Reserved on:26.12.2019
Pronounced on: 14.01.2020
Bajaj Allianz General Ins. Co. Ltd.,
...Appellant
Through:- Mr. Vishnu Gupta Advocate
v/s
Satya Devi and others ... Respondent(s)
Through:- Mr. Amrit Sarin, Advocate &
Mr. Achal Sharma, Advocate
Coram : HON'BLE MR JUSTICE SANJEEV KUMAR, JUDGE
JUDGMENT
1 Bajaj Allianz General Insurance Co. Ltd. (hereinafter referred to as the „insurer‟) is in appeal against the award dated 30.11.2013 passed by the Motor Accidents Claim Tribunal, Udhampur (hereinafter referred to as the „Tribunal‟) in File No. 53/Claim titled „Satya Devi and others vs. Guddi and others.
2 By virtue of the award impugned, the Tribunal has awarded a compensation of Rs.6,27,000/- along with interest @ 6% per annum from the date of the claim petition till the amount is realized. The award impugned is assailed by the insurer primarily on the ground that the deceased was a gratuitous passenger travelling in the offending vehicle and, therefore, the insurer was not liable to indemnify the owner and pay the 2 MA 197/2014 compensation to respondent Nos. 1 to 6 (hereafter referred to as the „claimants‟).
3 Briefly stated, the facts leading to the filing of this appeal, as gatherable from the pleadings of the parties, are:
On 25.06.2009, a Truck bearing registration No. JK02S/1127 (hereinafter referred to as the „offending vehicle‟) which was being driven rashly and negligently by its driver Munshi Ram met with an accident near Samroli (Kud) resulting into death of one Onkar Singh, the husband of claimant No.1, father of claimant Nos. 2 to 5 and son of claimant No.6. In the said accident, the driver of the offending vehicle also lost his life. The claimants having been deprived of their sole breadwinner filed a claim petition before the Tribunal seeking a compensation of Rs.48 lac. It was claimed that the deceased was a shopkeeper and was earning Rs.10,000/- per month. The claim petition was contested by the insurer only, others were proceeded ex parte.
4 On the basis of pleadings of the parties, the Tribunal framed the following issues:
i. Whether the deceased died in the road traffic accident caused on account of the reckless driving of vehicle bearing registration No.1127/JK02S by its driver on 25.06.2009 at Samroli ?
ii. If issue No.1 is proved in affirmative to what amount of compensation the petitioners are entitled to and from whom ?
iii. Whether the deceased was travelling in the offending vehicle as a gratuitous passenger and so liability if any arises on 3 MA 197/2014 account of his death cannot be fastened on the insurance company ?
iv. Whether the offending vehicle was being plied on the road without valid and effective RP, FC and without a valid driving licence ?
5 The claimants, in order to prove their case, produced Ranjit Singh and Satya Devi (one of the claimants) as their witnesses. They also placed on record some documentary evidence to substantiate their claim for compensation. On the other hand, the appellant-insurer produced one Vikas Raina, Legal Manager, Bajaj Allianz General Insurance Company as its witness. It also relied upon some documentary evidence on record. 6 On the basis of the evidence led, the Tribunal found the issue No.1 proved in favour of the claimants and came to the conclusion that the death of the deceased had occurred in the motor vehicular accident caused due to rash and negligent driving of the offending vehicle by its driver on 25.06.2009 at Samroli. On issue No.3, the Tribunal held that the insurer had failed to prove that the offending vehicle was being driven in violation of the terms and conditions of the policy and, therefore, it was not entitled to be absolved of its liability to indemnify the owner. Without rendering any finding as to whether the deceased was a gratuitous passenger or not, the Tribunal held that even in the case of a gratuitous passenger, the insurance company is liable to pay the compensation to the 3 rd party. The Tribunal thereafter proceeded to decide issue No.2 and held the claimants entitled to a compensation of Rs.6,27,000/- along with interest @ 6% per annum. The insurer was directed to pay the compensation to the 3rd party i.e, the 4 MA 197/2014 claimants, but gave liberty to the insurer to recover the said amount from the owner of the offending vehicle (insured).
7 Mr. Vishnu Gupta, learned counsel appearing for the insurer vehemently submits that in view of the settled legal position, in the case of death of a gratuitous passenger in the motor vehicular accident, particularly while travelling in the transport/goods vehicle, the insurance company is not liable to indemnify the insured. He submits that the goods vehicle is not permitted to carry passengers gratuitously or for payment and in case the goods vehicle carries passenger not permitted by law, the insurer cannot be fastened the liability to pay compensation to the next of kin of such passenger, who may suffer injury or die in the accident caused by such vehicle. He relies upon several judgments of the Hon‟ble Supreme Court to hammer his point.
8 Per contra, learned counsel appearing for the claimants vehemently contend that the legal position on the point is now well settled. It is submitted that the Hon‟ble Supreme Court has time and again reiterated that even in a case of injury or death of a gratuitous passenger travelling in the goods vehicle, the insurance company is not absolved of its statutory obligation to pay the compensation to the 3rd party. However, insurance company may recover the amount of compensation paid from the owner of the offending vehicle (insured). They, therefore, submit that the Tribunal committed no illegality in directing the insurer to pay the compensation to the claimants and then recover the same from the insured who may be guilty of committing breach of fundamental terms and conditions of the policy. 5 MA 197/2014 9 There are arguments and counter arguments addressed on the quantum of compensation payable to the claimants in the light of the evidence on record.
10 Having heard learned counsel for the parties and perused the record, I am of the view that the plea of learned counsel appearing for the appellant-insurer that, in the given facts and circumstances of the case, the insurer is not liable to pay compensation for the death of the deceased, a gratuitous passenger in the goods vehicle (insured vehicle), is not tenable in view of the law laid down by the Hon‟ble Supreme Court. 11 Although learned counsel for the claimants relying upon the statement of wife of the deceased Satya Devi and her witness Ranjit Singh, submits that the deceased was not travelling in the offending vehicle as a gratuitous passenger, but was travelling as owner of the goods i.e vegetables loaded in the Truck aforesaid, yet, from the reading of claim petition along with copy of the FIR and challan placed on record, the said plea is not substantiated . The said plea has been sought to be introduced during the course of evidence so as to fastened the liability on the insurance company to pay the compensation. There was a clear attempt by the claimants to demonstrate before the Tribunal that the deceased was not a gratuitous passenger, but owner of the goods carried in the offending vehicle and, therefore, covered by the policy of insurance as also in terms of Section 147 of the Motor Vehicles Act, 1988 as amended in the year 1994. 12 For the aforesaid reason, I am inclined to accept the contention of the insurer that the deceased, at the time of the accident, was travelling in the offending vehicle as a gratuitous passenger. There is no evidence on record 6 MA 197/2014 to show that the vehicle was loaded with the goods (vegetables) nor the same is discernible from the challan that any goods were ever seized from the place of occurrence. Be that as it is, the issue which begs determination in this case is; whether in a case of injury or death of a gratuitous passenger travelling in the goods vehicle insured with the insurance company, the insurer is liable to pay the compensation to the 3 rd party with right to recover the same from the insurer. The issue aforesaid came up for consideration before the Supreme Court in a three-Judge Bench in the case of New India Assurance Co. Ltd vs Asha Rani & Ors, (2003) 2 SCC 223. Taking note of the Motor Vehicles (Amendment Act) 1994 whereby Section 147 was amended and it was made mandatory for the insurance company to issue a policy of insurance against any liability which may be incurred by the insurer in respect of the death of or bodily injury to any person „including the owner of the goods or his authorized representative carried in the vehicle', the Hon‟ble Supreme Court held that the judgment rendered in the case of New India Assurance Company Ltd. vs. Satpal Singh and Ors. (2000) 1 SCC 237 did not lay down the correct law and concluded in paragraph 25 and 26 as under:
"25.Section 147 of the 1988 Act, inter alia, prescribes compulsory coverage against the death of or bodily injury to any passenger of "public service vehicle". Proviso appended thereto categorically states that compulsory coverage in respect of drivers and conductors of public service vehicle and employees carried in a goods vehicle would be limited to the liability under the Workmen's Compensation Act. It does not speak of any passenger in a "goods vehicle".7 MA 197/2014
26. In view of the changes in the relevant provisions in the 1988 Act vis-à-vis the 1939 Act, we are of the opinion that the meaning of the words " any person" must also be attributed having regard to the context in which they have been used i.e "a third party". Keeping in view the provisions of the 1988 Act, we are of the opinion that as the provisions thereof do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods vehicle, the insurers would not be liable therefor".
13 From the aforesaid, it is, thus, clear that the Supreme Court authoritatively held that the words „any person‟ should be attributed the meaning having regard to the context in which they have been used i.e, the 3rd party. It is, thus, concluded that the provisions of Section 147 did not enjoin any statutory liability on the insured to get his goods vehicle insured for any passenger travelling in it and if that be the position, in the absence of a contract to the contrary, the insurer would not be liable therefor. 14 The issue as to whether an insurance policy in respect of goods vehicle would also cover a gratuitous passenger in view of the legislative amendment effected to Section 147 of the Motor Vehicles Act, 1988 in the year 1994, fell for consideration before another three-Judge Bench of the Supreme Court in the case of National Insurance Co. Ltd vs. Baljit Kaur and others, 2004 ACJ 428. The Supreme Court, after surveying the entire law on the issue, reaffirmed the law laid down by the earlier three-judge Bench in the case of Asha Rani (supra) . The Bench, however, clarified that the legal position enumerated in Asha Rani‟s case (supra) shall have the prospective effect. However, in the case of Baljit Kaur (supra), the Supreme 8 MA 197/2014 Court directed the insurer to satisfy the award by making compensation to the claimants with a right to recover the same from the insured. 15 For facility of reference, what is contained in paragraph 21 of Judgment rendered in the case of Baljeet Kaur (supra) is noteworthy and is reproduced hereunder:
"21. The upshot of the aforementioned discussions is that instead and in place of the insurer the owner of the vehicle shall be liable to satisfy the decree. The question, however, would be as to whether keeping in view the fact that the law was not clear so long such a direction would be fair and equitable. We do not think so. We, therefore, clarify the legal position which shall have prospective effect. The Tribunal as also the High Court had proceeded in terms of the decisions of this Court in Satpal Singh (supra). The said decision has been overruled only in Asha Rani (supra). We, therefore, are of the opinion that the interest of justice will be sub- served if the appellant herein is directed to satisfy the awarded amount in favour of the claimant if not already satisfied and recover the same from the owner of the vehicle. For the purpose of such recovery, it would not be necessary for the insurer to file a separate suit but it may initiate a proceeding before the executing court as if the dispute between the insurer and the owner was the subject matter of determination before the tribunal and the issue is decided against the owner and in favour of the insurer. We have issued the aforementioned directions having regard to the scope and purport of Section 168 of the Motor Vehicles Act, 1988 in terms whereof it is not only entitled to determine the amount of claim as put forth by the claimant for recovery thereof from the insurer, owner or driver of the vehicle jointly or severally but also the dispute between the insurer on the one hand and the 9 MA 197/2014 owner or driver of the vehicle involved in the accident inasmuch as can be resolved by the tribunal in such a proceeding".
16 In view of the aforesaid authoritative pronouncement, there appears to be no ambiguity in the law laid down on the issue. Unless there is a contract to the contrary, insurer is not statutory liable to issue a policy providing for covering the risk of a gratuitous passenger travelling in the goods vehicle. It is, thus, clear that neither prior to nor after the amendment to Section 147 in the year 1994, the gratuitous passenger was covered statutorily by the policy of the insurance. It also transpires from several judgments of the Supreme Court as also some of the High Courts that though, the Courts have not been holding the insurer liable under the policy of insurance to indemnify the owner in the case of a bodily injury or death of a gratuitous passenger travelling in the goods vehicle, yet, invariably the Courts, in the interest of justice, and keeping in view the laudable object of the Motor Vehicles Act, has been directing the insurer to pay the compensation to the third party with right to recover the same from the insured. Much has been debated by the learned counsel appearing for the parties about the source of directions issued by the Supreme Court providing for „pay and recover‟ in such cases.
17 Mr. Gupta learned counsel appearing for the insurer argues that the source of directions issued by the Supreme Court lies in Article 142 of the Constitution and the power akin to the power which is vested in the Supreme Court under Article 142 of Constitution is not available to the High Courts hearing the appeals under the Motor Vehicles Act. The argument has been countered by learned counsel for the respondents by submitting that in the 10 MA 197/2014 larger interest of justice and keeping in view the beneficial nature of the legislation i.e., the Motor Vehicles Act, this Court is not powerless to issue similar directions if the same are required to further object of the legislation. 18 I have given my thoughtful consideration to the aforesaid aspect of the matter. Though, I am of the view that the jurisdiction which is vested in the Supreme Court by virtue of Article 142 of the Constitution is unique and vests only in the Supreme Court, the High Courts, hearing the appeals, under the Motor Vehicle Act are not conferred similar jurisdiction to pass orders that may be required to do substantial justice between the parties, but the latest judgment of the Supreme Court in the case of Manuara Khatun & Ors vs Rajesh Kumar Singh, (2017) 4 SCC 796 clears the mist surrounding the issue to some extent. In the aforesaid judgment, the Supreme Court in paragraphs 13 and 14 has held thus:
"13 The only question, which arises for consideration in these appeals, is whether the appellants are entitled for an order against the Insurer of the offending vehicle, i.e., (respondent No. 3) to pay the awarded sum to the appellants and then to recover the said amount from the insured (owner of the offending vehicle-Tata Sumo)-respondent No.1 in the same proceedings.
14 The aforesaid question, in our opinion, remains no more res integra. As we notice, it was subject matter of several decisions of this Court rendered by three Judge Bench and two Judge Bench in past, viz., National Insurance Co. Ltd. vs. Baljit Kaur & Ors., (2004) 2 SCC 1, National Insurance Co. Ltd. vs. Challa Upendra Rao & Ors., (2004) 8 SCC 517, National Insurance Co. Ltd. vs. Kaushalaya Devi & Ors., (2008) 8 SCC 246, National Insurance Co. Ltd. vs. Roshan Lal, [Order dated 19.1.2007 in SLP(c) No. 5699 of 2006], 11 MA 197/2014 and National Insurance Co. Ltd. vs. Parvathneni & Anr., (2009) 8 SCC 785"
19 Placing strong reliance upon its earlier judgment in the case of National Insurance Co. Ltd. v. Saju P. Paul, (2013) 2 SCC 41, the Supreme Court in the case of Manuara Khatun and others (supra) clearly held that the Courts, keeping in view the benevolent object of the Act and taking note of other relevant factors arising in the case, would be well within its powers to direct the insurance company to pay awarded sum to the claimants and then to recover the said sum from the insured in the same proceedings by applying the principle of "pay and recover". 20 The facts of the case in hand are almost identical to the facts of the cases in which the Supreme Court applied the principal of "pay and recover". Additionally, in the instant case, the claimants have placed on record some evidence, though same is not substantiated by the FIR and the challan, which even make the defence projected by the insurer that the deceased was a gratuitous passenger in serious doubt. The deceased, on the date of accident, left behind wife, mother and four children, out of which, two were even minor.
21 Having regard to the facts and circumstances of the case and the law laid down by the Supreme Court in the similar cases, I am of the view that this is a fit case where direction should go to the insurer to pay the compensation to the claimants and then recover the same from the insured. Such direction would be in consonance with the laudable object sought to be achieved by the benevolent provision i.e., Section 166 and other concomitant provisions of the Motor Vehicle Act. Regarding quantum of compensation, 12 MA 197/2014 despite vehemence of learned counsel for the insurer, I could not find that the amount awarded is, by any stretch of reasoning, on higher side. In the premise, this appeal, being devoid of merit, stands dismissed. 22 The awarded amount, if deposited in the Registry of this Court, shall be released in favour of the claimants as per the terms and conditions of the award and after proper verification.
(SANJEEV KUMAR) JUDGE Jammu 14.01.2020 Sanjeev Whether the order is speaking: Yes/No Whether the order is reportable: Yes