Patna High Court - Orders
National Insurance Company Lim vs Laxminia Kuer & Ors on 27 April, 2010
Author: Mungeshwar Sahoo
Bench: Mungeshwar Sahoo
IN THE HIGH COURT OF JUDICATURE AT PATNA
MA No.64 of 2007
NATIONAL INSURANCE COMPANY LTD., represented through Branch Manager, Aurangabad
Branch Maharajganj Road, New Area, Aurangabad, Bihar, Pin-824201 through its Chief Regional
Manager having its Regional Office, 4th Floor, Sone Bhawan, Birchand Paten Path, Patna-800001.
----------Appellant
Versus
1. LAXMINIA KUER, wife of the deceased Ramjee Mahto being the mother and natural
guardian on behalf of and for the benefit of her one minor son and three minor daughters.
2. Munna Mahto, minor son of the deceased Ramjee Mahto.
3. Asha Kumari, minor daughter of the deceased Ramjee Mahto.
4. Sushma Kumari, minor daughter of the deceased Ramjee Mahto.
5. Kusum Kumari, minor daughter of the deceased Ramjee Mahto.
All residents of village Parashia Ramour, P.O. and P.S. Tandwa. Distt. Aurangabad.
6. Sri Ramdeo Singh, s/o Late Mahindra Singh, vill. Ghuranand, P.O. Basdiha, P.S. Tandawa,
Distt. Aurangabad.
-----------
08. 28.04.2010. (1) Heard the learned counsel for the appellant-National Insurance Company Ltd. and heard the learned counsel for the respondents also under Order 41 Rule 11 C.P.C.
(2) This Misc. Appeal is disposed of at the admission stage itself.
(3) This Misc. Appeal has been filed by the National Insurance Company Ltd. against the order dated 02.01.2007 passed by the Addl. District & Sessions Judge, F.T.C. II-cum-M.V. Claim Tribunal, Aurangabad in M.V. Claim Case No.29 of 2005 whereby the learned Court below has directed the appellant to pay Rs.50,000/- under 140 of the M.V. Act.
(4) The learned Counsel for the appellant submitted that the deceased was traveling on a tractor being registration No. BR.- 26/9202 when the tractor was going to bring bricks from Mungia brick kiln for Satan Paswan, therefore, the tractor at the time of 2 accident was not used for agricultural purposes rather it was used for commercial purposes and was carrying labours for loading bricks. The learned counsel submitted that the policy was issued for commercial purposes. As such the Insurance company has no liability to pay any amount. The learned Counsel for the appellant further submitted that the learned Court below has wrongly applied the decision of the Kerala High Court and directed the appellant to pay compensation under Section 140 of the M.V. Act. The learned counsel submitted that the Hon'ble Supreme Court in such cases have held that the Insurance Company is not liable to pay. On the other hand, the learned counsel for the respondents submitted that under Section 140 of M.V. Act, the Tribunal is not required to hold the miny inquiry. The leaned counsel are relied upon decisions reported in 2001 (4) P.L.J.R. 14 (Divisional Manager, New India Assurance Company Vs. Most. Sabila Khatoon) and 1997 (2) P.L.J.R.393 (Oriental Insurance Company Vs. Smt. Shobha Sinha).
(5) From the above submissions of the parties, the point for consideration is as to whether the learned Court below would have under Section 140 M.V. Act directed the Insurance Company to pay the compensation of Rs.50,000/-.
(6) The decisions referred by the learned counsel for the respondent are concerned, it appears that in 2001 (4) P.L.J.R., the contention of the Insurance Company before this Court was that the owner is liable to pay the interim compensation under Section 140 M.V. Act and not the Insurance Company. In view of that facts, this 3 Court held that neither a miny enquiry can be undertaken, nor the defence of the insurer can be taken into consideration. In that case it was not the defence for the Insurance Company that the Insurance Company is not at all liable to pay the compensation because the vehicle in question was not used for the purpose of which Insurance policy was issued. Therefore, this decision is not helpful to the respondent. So far the other decision reported in 1997 (2) P.L.J.R. 393 is concerned, in that case, a pillion rider met an accident and died. In such circumstances, this Court has held that to give relief in terms of Section 140, the Tribunal is not suppose to examine as to who is at fault.
(7) From perusal of the above decisions, it appears that the facts in those cases were entirely different. Moreover, now the Hon'ble Supreme Court in various decisions has considered this point. One of the said decision of the Hon'ble Supreme Court passed in Civil Appeal No.1718 of 2007/S.L.P. (C) No.3900/2006 (Oriental Insurance Company Vs. Natthi Bai is reproduced here :
" Leave granted.
The deceased was traveling, on a tractor. He was sitting on one of its mudguards. It overturned resulting in the accident.
Indisputably, the tractor was to be used only for agriculture purposes and not for carrying any passenger.
Question in regard to liability of the Insurance Company, vis-à-vis, the passenger traveling in a tractor which is not used for agriculture purpose came up for consideration before this Court in National Insurance Co. Ltd. Vs. Chinnamma & Ors.-2004 (8) SCC 697, wherein it was categorically held as under :
"14.An insurance for an owner of the goods or his authorized representative traveling in a vehicle became compulsory only with effect from 14.11.1994, i.e. from the date of coming into force of amending Act 54 of 1994."
The said legal principle is reiterated in relation to gratuitous passenger in National Insurance Co. Ltd. Vs. Bomnitha Subbhayamma & Ors. 2005 (12) SCC 243. Yet again in New India 4 Assurance Co. Ltd. Vs. Vedwati & Ors. - 2007(3) SCALE 397, a Division Bench of this Court has clearly held that the liability of the insurer would be limited to a third party and not to a gratuitous passenger.
Mr. Prakash Srivastava, learned counsel appearing for the respondent, however, submits that the Insurance Policy would show that one passenger could travel in a tractor. The passenger referred to the Insurance cover evidently would mean the driver of the tractor and not any passenger who can travel on the mudguard of the tractor. There would not be any seat for a passenger on the tractor, which was to be used for agriculture purpose.
Further contention of Mr. Srivastava that in view of the Motor Vehicles Amendment Act, 1994 „any other person‟ would also be covered under the insurance policy is not correct as the said contention has also been squarely dealt by this Court in National Insurance Co. Ltd. Vs. Baljit Kaur & Ors. (2004)2 SCC 1.
For the aforesaid reasons, the impugned judgment cannot be sustained and it is set aside accordingly. The appeals are allowed."
(8) In another decision reported in Supreme Court on Accident Claims page 19, National Insurance Company Vs. Bommithi Subbhayamma, the Hon'ble Supreme Court has held that the Insurance Company is not statutory liable for payment of compensation to gratuitous passengers traveling in goods vehicle. In a decision reported in 2008 (1) P.L.J.R. 127 (S.C.) (United India Insurance Vs. Serjerao & Ors), the Hon'ble Supreme Court at paragraph 6 & 7 held as follows :
"6. So far as the question of maintainability aspect is concerned, the issue is concluded by a judgment of this Court in Smt. Yallwwa & Ors Vs. National Insurance Co. Ltd., and Anr. (2007 (8) SCALE 77).
7. In paragraphs 16 to 19 of the judgment, it was observed as follows :
"16. The question which is required to be considered is what would be the meaning of the term „award‟ when such a contention is raised. Although in a given situation having regard to the liability of the owner of the vehicle, a claim Tribunal need not go into the question as to whether the owner of the vehicle in question was at fault or not, but determination of the liability of the insurance company, in our opinion, stands on a different footing. When a statutory liability has been imposed upon the owner, in our opinion, the same cannot extend the liability of an insurer to indemnify the owner, although in terms of the insurance policy or 5 under the Act, it would not be liable therefore.
17. In a given case, the statutory liability of an insurance company, therefore, either may be nil or a sum lower than the amount specified under Section 140 of the Act. Thus, when a separate application is filed in terms of Section 140 of the Act, in terms of Section 168 thereof, an insurer has to be given a notice in which event , it goes without saying, it would be open to the insurance company to plead and prove that it is not liable at all.
18. Furthermore, it is not in dispute that there can be more than one award particularly when a sum paid may have to be adjusted from the final award. Keeping in view the provisions of Section 168 of the Act, there cannot be any doubt whatsoever that an award for enforcing the right under Section 140 of the Act is also required to be passed under Section 168 only after the parties concerned have filed their pleadings and have been given a reasonable opportunity of being heard. A claims Tribunal, thus, must be satisfied that the conditions precedent specified in Section 140 of the Act have been substantiated, which is the basis for making an award.
19. Furthermore, evidently, the amount directed to be paid even in terms of Chapter-X of the Act must as of necessity, in the event of non-compliance of directions has to be recovered in terms of Section 174 of the Act. There is no other provision in the Act which takes care of such a situation. We, therefore, are of the opinion that even when objections are raised by the insurance company in regard to its liability, the Tribunal is required to render a decision upon the issue, which would attain finality and, thus, the same would be an award within the meaning of Section 173 of the Act."
(9) In the said decision at paragraph 8, the Hon'ble Supreme Court has held as follows :
"8. So far as the question of liability regarding labourers traveling in trollies is concerned, the matter was considered by this Court in Oriental Insurance Company Ltd. Vs. Brij Mohan and Ors. (2007 (7) SCALE 753) and it was held that the Insurance Company has no liability. In view of the aforesaid two decisions of this Court, we set aside the impugned order in each case and remit the matters to the High Court to consider the matters afresh in the light of what has been stated by this Court in Smt. Yallwwa‟s case (supra) and Brij Mohan‟s case (supra)."
(10) In view of the above settled principal of law, in my opinion, the present case is squarely covered by the decision of the Hon'ble Supreme Court as referred to above. Therefore, it emerges from the above facts that when objections are raised by Insurance 6 Company in regard to its liability, the Tribunal is required to render a decision upon the issue. In the present case, the Insurance Company specifically raised the objection that the tractor was insured only for the purpose of agriculture and it was not insured for commercial purposes. In the decision referred to above in Natthi Bai, the Hon'ble Supreme Court has held that the passenger referred to in the Insurance cover evidently would mean the driver of the tractor and not any passenger who can travel on the mudguard of the tractor. There would not be any seat for the passenger on the tractor which was to be used for agriculture purposes.
(11) In a decision reported in 2004 (8) Supreme Court cases pages 697 (National Insurance Company Ltd. Vs. V. Channamma and Ors. The Hon'ble Supreme Court has held that a tractor is not even a goods carriage as defined in Section 2 (14). The tractor has been defined in Section 2 (44). At paragraph 16, the Hon'ble Supreme Court has held that the trailer attached to the tractor thus necessarily is required to be used for agricultural purposes. On this ground, the Appeal of the Insurance Company was allowed.
(12) In the present case, it is admitted fact that the tractor in question was not used for agricultural purposes. In similarly situated case, the Hon'ble Supreme Court in a decision reported in 2007 (3) S.C.A.L.E 397 has held that the inevitable conclusion, therefore, is that provisions of the Act do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger traveling in a goods carriage and the insurer would have no liability. 7 It appears that in this case also, the deceased was traveling on a tractor.
(13) In view of the above discussion of the case laws, it appears that the Hon'ble Supreme Court in the decision reported in 2007 (8) S.C.A.L.E. 77 and 2008 (1) P.L.J.R. 127 (S.C.) referred to above have held that in case of order under Section 140 of the M.V. Act also, the Tribunal is required to render a decision upon the issue raised by the Insurance Company.
According to the Hon'ble Supreme Court, the Tribunal need not to go into the question as to whether the owner of the vehicle in question was at fault or not but determination of the liability of the Insurance Company stands on a different footing. When a statutory liability has been imposed upon the owner, the same cannot extend the liability of an insurer to indemnify the owner, although in terms of the insurance policy or under the Act, it could not be liable therefor. It appears that in both the above decisions, the Hon'ble Supreme Court was deciding the matter regarding order passed under Section 140 of the M.V. Act. In the present case at our hand, the Tribunal has not decided at all as to whether the Insurance company is liable at all in terms of the insurance policy. In view of these settled principal as laid down by the Hon'ble Supreme Court, I find no force in the submission of the learned counsel for the respondents that the Tribunal is not required to decided this point as to whether the Insurance company is statutorily liable to pay in terms of insurance policy. If the insurance company is statutorily not liable 8 to pay in terms of policy or under the Act, the Court has no jurisdiction to direct him to pay the amount. In my opinion, therefore, these decisions squarely covers and are complete answer to the submission of the learned counsel for the respondents. Admittedly, in the present case at our hand, the learned Court below has not decided as to whether the Insurance Company is statutorily liable in terms of the Insurance policy or not. In view of my above discussion, I find that Insurance company is not liable to pay the interim compensation as directed by the impugned order.
(14) For the reasons stated above, the impugned order is unsustainable in the eye of law. In the result, this Appeal is allowed. The impugned order is set aside. The owner-respondent is directed to pay the interim compensation to the claimants.
(15) The statutory amount of Rs.25,000/- be returned to the appellant.
(Mungeshwar Sahoo, J.) Patna High Court, Patna Dated 28 th April, 2010 AFR/ Sanjeev