Patna High Court - Orders
United India Insurance Company vs Munarik Rai &Amp; Ors. on 14 July, 2010
Author: Akhilesh Chandra
Bench: Akhilesh Chandra
IN THE HIGH COURT OF JUDICATURE AT PATNA
MA No.537 of 2009
UNITED INDIA INSURANCE COMPANY LIMITED, Laxmi Apartment, 2nd floor, Frazer
Road, Patna - 1, through the Manager and Constituted attorney, Regional Office, United
India Insurance Co. Ltd. Chanakya Commercial Complex, R‟Block, Patna.
-------------------Opp.Party no. 3/Appellant.
Versus
1. MUNARIK RAI, S/o - Late Ram Tahal Rai
2, Sunaina Devi, W/o - Munarik Rai
Both resident of Mohalla, Didarganj, P.S. - Malsalami, District - Patna.
-------- Claimant/Respondents.
3. Jai Prakash, S/o - Sri Satya Narain Prasad, resident of village Naya Gaon, P.O. -
Gulzarbagh, P.S. - Alanganj, District - Patna (owner of truck no. BR-21A-9125).
----------- Opp. Party no.1/Respondent.
4. Ramesh Kumar, S/o - Late Ram Lakhan Sharma Resident of village - Dehri, P.S.
- Punpun, district - Patna, (Driver of truck no. BR-21A- 9125).
-------------- Opp. Party no.2/Respondent.
-------
08. 14.07.2010Heard learned counsels representing the parties who also gave their consent to hear and disposed of this appeal at the admission stage itself.
2. The appellant is the Insurance Company which has been directed by the Motor Accident Claims Tribunal (hereinafter referred to „M.A.C.T.") to pay a sum of Rs. 50,000/- with 6% interest from the date of filing of the claim vide case no. 445/2008 under section 140 of the Motor Vehicles Act (in short "M.V.A.") by the two claimants respondents 1 and 2 seeking compensation against death of their son namely, Uma Shankar Yadav.
3. It is undisputed that on death of deceased Uma Shankar Yadav, Gandhi Maidan P.S. Case No. 153/2006 was registered against unknown persons on basis of fardbeyan of one Nasiblal Yadav cousin of the deceased for the offences -2- under section 302 of the Indian Penal Code, but, after investigation police finally submitted charge sheet under section 304A of the Indian Penal Code finding negligent and rash driving of the driver respondent no.4, of the Truck bearing no. BR21A - 9125 owned by respondent no.3.
4. This is also undisputed that the truck was carrying stone chips and the deceased also traveled therein just to unload stone chips and he slept on the front side of the aforesaid truck. The truck started its journey at 12.30 A.M. but, subsequently, the informant who was also accompanying and slept on the aforesaid stone chips itself found the truck standing beneath the over-bridge of Chiraiyatand and both the driver and Khalashi of the truck was not present. He further noticed cut injury by sharp cutting weapon on the neck of the deceased, blood was also oozing.
5. The one and only ground assailing finding of the court below fixing liability upon the insurance company, the appellant, to pay the compensation under section 140 of the Act is that the truck in question though was under valid and operative insurance of the appellant but it was not covering the risk and liability as per terms of the policy of the persons beyond employment of owner of the vehicle such as driver and Khalashi, whereas the deceased was nothing more than gratuitous passenger and unless any premium is paid to cover liability against such passengers, the insurance company is not -3- at all liable to make compensation.
6. Learned counsel for the appellant referring the provision as contemplated under Section 147(2) of the M.V.A. and various decision of the Apex Court as well as of this court submitted that since the issue of no liability against the insurance company has already been raised. It was incumbent upon the court below to give specific finding on this issue, but, instead of doing so, the appellant has been directed to make payment to the claimants. Simultaneously, it is submitted that there is no dispute that the claimants are entitled for the compensation, but not from the insurer appellant but only from the owner of the vehicle itself.
7. On the other hand, learned counsel representing the owner respondent simply submitted that in a case like present filed only under section 140 of the Act i.e. on the basis of no fault claim. It is only to be seen whether the vehicle in question involved is insured and once this is prima facie established that vehicle is under valid coverage of the insurance, its entire liability of the insurer to make payment any other controversy as regard to terms and conditions and enter se liability between the owner and insurer shall be determined in a different proceeding.
8. The relevant portion of section 147 of the M.V.A. which reads as such:
" 147. Requirements of policies and limits of -4- liability - (1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which -
(a) is issued by a person who is an authorized insurer; or
(b) insurer the person or classes of persons specified in the policy to the extent specified in sub-section (2) -
(i) against any liability which may be incurred by him in respect of the death of or bodily [injury to any person, including owner of the goods or his authorized representative carried in the vehicle] or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place;
(ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place:
9. From the impugned order it is clear that the insurance certificate/policy produced before the tribunal does not indicate any extra liability of the insurer except the risk of owner and person under his employment. Undisputedly the deceased who was on the truck just to unload the stone chips, was neither the driver of the vehicle nor Khalashi under employment of the -5- owner of the vehicle and also there is no assertion prima facie showing that the deceased was engaged by the owner of the stone chips rather as it is prima facie evident. He was nothing but a casual labour and boarded in the truck as gratuitous passenger just to unload the stone chips under expectation of payment of remuneration for the same.
10. He also cannot be turned as third party against whom vehicle in question dashed rather he was as stated on the truck itself.
11. Such issue had earlier come before this court in a case of United India Insurance Co. v. Satiya Devi @ Sundri Devi and others reported in 2008(3) BBCJ 280; and it has been held that in absence of coverage of insurance to such persons insurer is not liable to compensate similar is the view taken by this court in another case wherein payment was made (United India Insurance Co. Ltd. v. Sahnaj Khatoon and others reported in 2010(2) PLJR 884. In both the cases it appears that matter involves arrived after final adjudication in a proceeding initiated under section 166 of the M. V. A.
12. Apart from above two decisions of this court from the decision of the Apex Court in a case of Oriental Insurance Co. Ltd. v. Brij Mohan and others reported in 2007(7) SCC 56; and subsequently in United India Insurance Co. Ltd. v. Serjerao and Ors. reported in 2008(1) PLJR SC 127; and the Apex Court while considering the provisions of law are arrived at -6- the conclusion that unless this coverage of insurance for the persons other than covered under section 147(2) of the Act, the insurer is liable to make payment. In para 8 of the later decision relying upon former case the Apex Court has held as such:
" 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 & 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 matter afresh in the light of what has been stated by this court in Smt. Yallwwa‟s case (supra) & Brij Mohan‟s case (supra)".
13. No doubt, in a case of New India Assurance Co. Ltd. v. Satpal Singh and others reported in 2000(1) SCC 237, Apex Court was of the view that insurer was liable to make such payment, but, this decision appears to have been overruled by the Supreme Court in a case of New India Assurance Co. Ltd. vs. Asha Rani and others reported in 2003(2) SCC 223.
14. On the basis of aforesaid decisions there is no -7- doubt about the legal position that insurer is liable only to the extent of terms and conditions as envisaged in the policy/certificate of insurance.
15. But, at the same time, it is also to be considered that the legislature has enacted the act and made provision for compensation to the victim or his heirs taking into consideration the miseries faced by them this is why such provisions are commonly termed as beneficial legislation
16. Under section 149 of the M.V.A., there are provisions that in case of the claim of the sufferers is not covered under the terms and conditions of the policy the insurer in the event of insurer being otherwise valid cannot be ignored to compensate the sufferers who are in fact in urgent needs, of course, it has a right to recover the amount so paid from its counter part to the agreement i.e. owner of the vehicle.
17. The relevant provision of law referred to above read a such:
Section 149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks : -
(1) * * * *
(2) * * * *
(3) * * * *
"149. (4). Where a certificate of insurance has been issued under sub-section (3) of section 147 to the person by whom a policy has been effected, so much of the policy as purports to restrict the insurance of the persons insured -8- thereby by reference to any condition other than those in clause (b) of sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under clause (b) of sub-section (1) of section 147, be of no effect:
Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from that person.
(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured by a policy exceeds the amount for which the insurer would apart from the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person."
(6) * * * *
18. In the case of Oriental Insurance Co. Ltd. v.
Brij Mohan and others reported in 2007(7) 56; The Apex Court in para 15 referring its earlier decisions in National Insurance Co. Ltd. v. Kusum Rai reported in 2006(4) SCC 250; No doubt as said in exercise of jurisdiction under Article 136 of the -9- constitution passed the following order:
15. In National Insurance Co. Ltd. v. Kusum Rai this court observed: (SCC p.257, para 19) "19. Thus, although we are of the opinion that the appellant was not liable to pay the claimed amount as the driver was not possessing a valid licence and the High Court was in error in holding otherwise, we decline to interfere with the impugned award, in the peculiar facts and circumstances of the case, in exercise of our jurisdiction under Article 136 of the Constitution but we direct that the appellant may recover the amount from the owner in the same manner as was directed in Nanjappan."
19. Similar view has also been taken by the Apex Court in a case referred earlier National Insurance Co. Ltd. v.
Baljit Kaur and others reported in 2004(2) PLJR 59, wherein in para 21 it has been held:
We, therefore, are of the opinion that the interest of justice will be subserved 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
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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 of driver of the vehicle jointly or severally but also the dispute between the insurer on the one hand and the owner or driver of the vehicle involved in the accident inasmuch as can be resolved by the tribunal in such a proceeding."
20. Learned counsel for the appellant further placing reliance upon the decision of the Apex Court in a case of National Insurance Co. Ltd. v. Parvathneni reported in 2010(1) PLJR 76(SC); submitted that in the event of insurer being held not liable to make any payment cannot be compelled to pay the award amount with a right to recover from the owner.
21. No doubt the Apex Court in the above case on consideration of some other aspects as to in some cases the recovery by insurer may take years or in some cases it could not be possible to recover the amount from owner so whether the
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insurer can be compelled to make such payment with a liberty as directed by the Apex Court in different cases such as:
National Insurance Co. Ltd. vs. Yellamma & Another, (2008)7 SCC 526, Samundra Devi vs. Narendra Kaur, (2008)9 SCC 100 (vide para 16), Oriental Insurance Co. vs. Brij Mohan, (2007)7 SCC 56 9(vide para 13), New India Insurance Co. vs. Darshan Devi (2008)7 416 (vide para
21), etc.] and referred the matter before Hon‟ble Chief Justice of India for constituting a larger Bench to decide the issue and undisputedly till today there is no other decision on this issue.
22. It may not be out of place to examine the law as laid down under Sections 140 and 141 of M.V.A., the relevant portion of which reads as such:
"140. Liability to pay compensation in certain cases on the principle of no fault:-
(1) * * * * * * (2) The amount of compensation which shall be payable under sub-section (1) in respect of the death of any person shall be a fixed sum of [fifty thousand rupees] and the amount of compensation payable under that sub-section in respect of the permanent disablement of any person shall be a fixed sum of [twenty-five thousand rupees].
(3) * * * *
(4) * * * *
(5) * * * *
141. Provisions as to other right to
claim compensation for death or permanent disablement - (1) The right to claim compensation under section 140 in respect of death or permanent disablement of any person shall be in addition to [any other right, except the right to claim under the scheme referred to in section 163A (such other right hereafter] in this section referred to as the right on the principle of fault) to claim compensation in
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respect thereof under any other provision of this Act or of any other law for the time being in force].
(2) A claim for compensation under section 140 in respect of death or permanent disablement of any person shall be disposed of as expeditiously as possible and where compensation is claimed in respect of such death or permanent disablement under section 140 and also in pursuance of any right on the principle of fault, the claim for compensation under section 140 shall be disposed of as aforesaid in the first place.
(3) notwithstanding anything contained in sub-section (1), where in respect of the death or permanent disablement of any person, the person liable to pay compensation under section 140 is also liable to pay compensation in accordance with the right on the principle of fault, the person so liable shall pay the first mentioned compensation and -
(a) if the amount of the first mentioned compensation is less than the amount of the second-mentioned compensation, he shall be liable to pay (in addition to the first-mentioned compensation) only so much of the second-mentioned compensation as is equal to the amount by which it exceeds the first mentioned compensation;
(b) if the amount of the first-
mentioned compensation is equal to or more than the amount of the second-mentioned compensation, he shall not be liable to pay the second-mentioned compensation."
23. The very purpose of the legislature while making the provision of payment of fixed amount by way of ad interim compensation to the affected persons that too on priority and no fault basis, appears to be, only for meeting their urgent needs, without going into much technicalities. This is why such claim needs to be disposed of expeditiously.
24. In order to maintain the claim of ad interim
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compensation the claimant has to prima facie satisfy the claim tribunal regarding their claim by annexing the documents as required under rule 246 of M.V. Rules, which reads as such :
"246. Procedure regarding compensation on the principle of no fault: - Notwithstanding anything contained in rules 226, 245 and 247 in the case of a claim for compensation under Chapter X of the Act, the procedures shall be as follows, namely : -
(1) * * * * * (2) The application shall be accompanied by a fee of [ten thousand rupees] in the form of Court fee stamps and the following documents, namely:-
(i) First Information Report;
(ii) Injury Certificate or post mortem report in case of death;
(iii) Heirship certificate in case of death;
(iv) Certificate from the registering authority regarding ownership of the vehicles involved in the accident;
(v) particulars of insurance of the vehicle involved in the accident.
(3) * * * * *
|
|
(13) * * * * *
25. It is true that when in response the claim application owner of the vehicle involved and insurer both entered in to appearance raised issue shifting the liability upon each other, referring terms and conditions of the policy, so far it can be decided without causing any delay and only by examining the rival pleading, the document referred to above, including insurance certificate the claim tribunal should decide the point even at the stage of proceeding under section 140 of the Act, and fix the liability of owner and insurer inter se.
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26. But at the same time taking sufferings of claimant and spirit of enactment as referred to quick and early payment to suffering, in spite of no or lesser liability the insurer may be directed for making payment to the claimants subject to right of recovery from the owner in view of S.149 of the Act.
27. Thus, in view of the facts and circumstances as discussed above, subject to the provisions as contemplated under section 149 of the M.V.A., the appellant is directed to indemnify the liability of respondent no.3, the owner of vehicle, and pay the amount under award to the claimants within a month. The appellant may recover the amount so paid, from the owner with interest. However, this will not affect the right of the owner respondent no.3, to avoid further encumbrance and discharge his liability by making early payment against award through demand draft before the court below.
28. The impugned order to the extent of direction and liberty given stands modified. The appeal stands disposed of with such modification at the admission stage itself. Subject to satisfaction of award the statutory amount of Rs. 25,000/- deposited in this appeal shall be returned to the appellant. Rajeev/ (Akhilesh Chandra, J.)