Jharkhand High Court
State Of Jharkhand Through The Deputy, ... vs Gray Hound Transport Company (Pvt.) ... on 19 February, 2002
Equivalent citations: AIR 2002 JHARKHAND 77, 2002 AIR - JHAR. H. C. R. 454, (2002) 1 JCR 372 (JHA), (2002) 1 JLJR 737
Author: Vishnudeo Narayan
Bench: Vishnudeo Narayan
JUDGMENT
The Court
1. This appeal under Clause 10 of the Letters Patent is directed against the judgment dated 26th Sept. 2001 passed by a learned Single Judge of this Court in C.W.J.C. No. 597 of 2000R where by, after allowing the Writ Petition filed by the respondent-writ petitioners, the learned Single Judge issued a mandamus to the appellant-State directing it to pay compensation to the respondent-writ petitioner on account of the loss suffered by him owing to the fact that his vehicle had been destroyed.
2. The facts lie in a very narrow com pass. The respondent-writ petitioner at the relevant time was the owner of a vehicle bear ing registration No. 20G-5275. This vehicle was requisitioned by the appellant in term of Section 160 of the Representation of People Act, 1951 at Khelari in the district of Ranchi because it was required for the Parliamentary Elections of 1999. On 16th September. 1999.
this vehicle was sent to Palamau and was in the custody and possession of the Deputy Commissioner-cum-Returning Officer.
Palamau. On 18.9.999 while the vehicle was on election duty and admittedly it was in the custody and possession of the appellants, be cause of some explosion caused by the extremists/terrorists, it was completely destroyed. Since the writ-petitioner respon dent failed to receive any compensation from the appellants, he moved this Court by filling C.W.J.C. 597/2000R and as noticed, the writ application was allowed vide the judgment under challenge in this Appeal.
3. Section 160 of the Representation of People Act, 1951 empowers the State Government to requisition any vehicle if it appears to a State Government that in connection with an election held within the State any such vehicle is needed or is likely to be needed for the purpose of transport of ballot boxes or transport of the members of the Police Force or such other like purposes. Sections 161 of 1951 Act relating to the payment of compensation requires that whenever in pursuance of an order of requisition passed by the State Government, the State Government requisitions any vehicle, it shall pay to the owner thereof by way of compensation the amount which shall be determined by the State Government the basis of the fares or rates prevailing in the locality for the hire of such vehicle. For ready reference, we reproduce herein below the relevant extracts of these two Sections :
The relevant extract of Section 160 reads thus :
160. Requisition of premises, vehicles etc. for election purposes. (1) If it appears to the State Government that in connection with an election held within the State-
(a) any premises are needed or are likely to be needed for the purposes of being used as a polling Station or for the storage of ballot boxes after a poll has been taken, or
(b) any vehicle, vessel or animal is needed or is likely to be needed for the purpose of transport of ballot boxes to or from any polling station or transport of members of the police force for maintaining order during the conduct of such election, or transport of any officer or other person for performance of any duties in connection with such election...,"
Section 161 : Payment of compensation.--(1) (2) Whenever in pursuance of Section 160 the State Government requisitions any vehicle, vessel or animal there shall be paid to the owner thereof compensation the amount of which shall be determined by the State Government on the basis of the fares or rates prevailing in the locality for the hire of such vehicle vessel or animal :
Provided that where the owner of such vehicle, vessel or animal being aggrieved by the amount of compensation so determined makes an application within the prescribed time to the State Government for referring the matter to an arbitrator, the amount of compensation to be paid shall be such as the arbitrator appointed in this behalf by the State Government may determine.
Provided further that where immediately before the requisitioning the vehicle or vessel was by virtue of a hire purchase agreement in the possession of a person other than the owner, the amount determined under this sub-section as the total compensation payable in respect of the requisition shall be apportioned between that person and the owner in such manner as they may agree upon, and in default of agreement in such manner as an arbitrator appointed by the State Government in this behalf may decide."
4. During the course of hearing of the Writ application, the appellant raised a question regarding the non-insurance of the vehicle in terms of provision relating to the Insurance as contained in Section 146 and 147 of the Motor Vehicles Act, 1988. Undoubtedly, Section 146 of 1988 Act enjoins upon every person who owns a motor vehicle to ensure that before using such a vehicle in a public place he has got issued with respect to such a vehicle a Policy of Insurance complying with the requirements of 1988 Act. Section 147 of the 1988 Act. as a sequel to Section 146. prescribes the requirements of an Insurance Policy and lays down as to what should be covered by and under such a Policy of Insurance. The learned Single Judge in the judgment under Appeal even though has dwelled upon the fact of the vehicle in-ques-tion lying in a Workshop at the relevant time and therefore, (since it was not being plied on a public place because of it lying in a workshop awaiting repairs) Section 146 not being attracted. In our considered opinion, despite the aforesaid valid and well reasoned point covered by the learned Single Judge in the judgment under appeal, such a point may not strictly arise for consideration in this case because in this case we may not be at all called upon to determine the consequence of non-insurance of the vehicle in-question (in the light of mandatory requirement for insurance contained in Section 146 of 1988 Act) because of the fact that such consequence of non-insurance of the vehicle in question has no direct or indirect bearing with the liability of the appellant to compensate the Writ-petitioner respondent for the loss suffered by him on account of the destruction of the vehicle. We are saying so because of the established and settled position of law that in a fact-situation as the present one non-insurance of the motor vehicle is not and cannot be made a relevant issue in so far as the fastening of the liability upon the appellant for payment of compensation to the Writ-petitioner respondent is concerned. If a motor vehicle is being plied on a public road and in violation of the mandatory requirements of law as contained in Sections 146 and 147 of 1988 Act it is not insured, the owner may attract the penal provision as contained in Section 196 of the Motor Vehicles Act and may thus be penalised and punished for not complying with such a mandatory requirement of law. Before us, that is not the issue for consideration. The issue that arises for consideration in our case is that the State Government requisitioned the vehicle for the purposes of election duty in terms of the powers vested in it under Section 160 of 1951 Act and because of the mandate contained in Sub-section (2) of Section 161 of 1951 Act, it was liable to compensate the owner for the loss suffered by him. Even though Sub-section (2) of Section 161 talks of the compensation based on the fare structure or rates prevailing in the locality for the hire of the vehicle, it may not be said that if the vehicle has totally been destroyed while in the custody of the State Government, the State Government is not under any obligation, liability or responsibility to compensate the owner for the loss suffered by him on account of the destruction of the vehicle. If the vehicle has been destroyed while it was being used by the State and was in its exclusive possession and custody, the owner has to be compensated by the State for such loss being suffered by him. It is not open to the State to claim that it is absolved of its liability to pay such compensation to the owner because the owner did not have the vehicle insured. It may be an altogether different fact and hence a relevant circumstance when a vehicle actually is insured and while in the exclusive possession and custody of the State Government it is destroyed and there is thus also in existence a valid policy of insurance. Policy of Insurance being a contract of indemnity, the Insurance Company being liable to indemnify the owner for such loss, the State in such a fact situation may always be entitled to raise a defence that since the owner has been compensated by the Insurance Co. on the basis of the aforesaid policy of Insurance, or that it is entitled to be compensated by the Insurance Company, the owner not being entitled to double compensation for the same loss, the State may not be fastened with any liability to compensate the owner. But that is only in a fact situation where a vehicle is under a contract of Insurance in terms of Section 146 of the 1988 Act. But because a vehicle has not been insured, rightly or wrongly, legally or unlawfully, this omission on the part of the owner cannot give rise to a situation where the State may be permitted to claim that it is absolved of its own liability to compensate the owner for the loss suffered by him. Even in the normal course, under the common law, if someone takes a vehicle from its right full owner for use and during the course of that use, while the vehicle is in exclusive possession of that person and it is destroyed, the owner has to be compensated by the person who had requisitioned the vehicle for its exclusive use. This, principle gels clearly fortified by the language employed in Sub-section (2) of Section 161 of the 1951 Act because Sub-section (2) clearly recognizes and acknowledges the liability of the State compensating the owner by paying amount to him linked with the fares and the rates etc. The State, therefore, on the same reckoning cannot, escape its liability to compensate the owner just because the vehicle has not been insured as has been required under Section 146 of 1988 Act.
5. Whether the owner committed any offence or not by not having the vehicle insured the may have actually and in fact committed such an offence) is not germane to the point of controversy involved in this case. The only point of controversy involved and relevant in this case is the liability of the State to compensate the owner because the vehicle admittedly at the relevant time was being used by the Stale Government for election duty and was in its exclusive possession.
6. With respect to the defence of the appellant State about its liability to compensate the respondent being absolved on the ground of the respondent-writ petitioner not having got his vehicle insured, there is another very vital, important and interesting aspect emanating from a reading of Sections 146 and 147 of the Motor Vehicles Act, 1988. Such a reading of these two sections will demonstrate the total untenability of such a defence as it will reveal beyond any doubt the absolute fallacy of any argument relating to the need of the law to have a policy of Insurance (Under Sections 146 and 147 of the 1988 Act) in so far as such a legal requirement relates to the owner of a motor vehicle himself being entitled to be compensated for any loss to the vehicle or on account of its total destruction.
7. Whereas Chapter XI of 1988 Act undoubtedly deals with the subject of Insurance of motor vehicles, the title of Chapter XI itself uses the expression "against third party risks" after the words "Insurance of Motor Vehicles". Section 146 being in the nature of a prohibitive provision restrains every person from using in a public place a motor vehicle unless there is in force in relation to the use of such a vehicle by that person a policy of Insurance complying with the requirements of Chapter XI. For finding out as to what should be the requirements in a policy of Insurance which may comply with Chapter XI. We have to turn to Section 147 of the 1988 Act which bears the heading "Requirements" of Policies and Limits of Liability". Amongst some other requirements. Section 147 also stipulates that in order to comply with the requirements of Chapter XI. a policy of Insurance must be a policy which insures an owner against (i) any liability which may be incurred by him in respect of the death or bodily injury to any person: (ii) any liability arising from or relating to the death or bodily injury to any passenger in the vehicle: (iii) any liability relating to any damage to the property of any third party. As thus, will be seen. Section 147 of the 1988 Act which Prescribes the requirements of a Policy of Insurance as contemplated in Chapter XI does not anywhere stipulate or lay down that a Policy of Insurance must also contain any requirement to the effect that the owner of the vehicle himself would also be compensated by the Insurance Company with respect to any loss or damage caused to his own vehicle which is the subject matter of the Insurance Policy. The purpose and legislative intent behind Chapter XI is well known. It is to protect the interests of third parties qua a motor vehicle which is being complied in a public place. The purpose of Chapter XI of 1988 Act is not apparently to protect the owner of the vehicle himself for any loss or damage caused to the vehicle. Any stipulation, therefore, in a Policy of Insurance which provides for compensation to an owner by the Insurance Company for loss or damage suffered by the vehicle being the subject matter of the Insurance Policy is an optional requirement in a Policy of Insurance, being brought about by a bilateral agreement between the insured and the Insurer (as is commonly known, by payment of additional premium). If therefore, in strict and absolute as well as total compliance of Chapter XI of 1988 Act. even if a Policy of Insurance is in existence (but it does not contain any optional provision regarding the: Insurer compensating the insured for loss or damage to the vehicle of the insured) such a Policy would be meaningless and of no help to anyone in so far as the loss or damage to the vehicle is concerned. Viewed thus, whether there is in existence or any Policy of Insurance complying with the requirements of Chapter XI of 1988 Act or not it would be meaningless defence if allowed to be raised that had such a Policy been in existence, the State should not be called upon to compensate the respondent-writ petitioner.
8. For the foregoing reasons, therefore, while agreeing with the conclusion arrived at by the learned Single Judge we dismiss this Appeal, but without any order as to costs.