Allahabad High Court
National Insurance Co. Ltd. vs Jagbira And Others on 13 July, 2012
Author: Rajes Kumar
Bench: Rajes Kumar, Anil Kumar Sharma
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 18 Case :- FIRST APPEAL FROM ORDER No. - 2157 of 2012 Petitioner :- National Insurance Co. Ltd. Respondent :- Jagbira And Others Petitioner Counsel :- Amit Manohar Respondent Counsel :- S.D. Ojha Hon'ble Rajes Kumar,J.
Hon'ble Anil Kumar Sharma,J.
(Delivered by Hon. Anil Kumar Sharma, J) This is an appeal by insurer of offending Tempo registration no. UP 12K-3227 against the award dated 12.3.2012 in MACP Case no. 397 of 2009 Jagbira and others Vs. Bhagwan Sharma and others, whereby MACT/Addl. District Judge, Court no. 11, Muzaffarnagar has awarded a sum of Rs. 4.08 lacs along with pendente lite simple interest @ 6% per annum.
It appears that on 28.1.2009 deceased Ravindra Kumar was traveling in Tempo registration no. UP 12K-3227, which was being driven by its driver rashly and negligently and when it reached near Sahawali nala at about 3.00 p.m. it turtled injuring the passengers sitting therein including Ravindra Kumar, who succumbed to the injuries in District Hospital, Muzaffarnagar. The report of the accident was lodged in P. S. Nai Mandi and post-mortem examination of the deceased was conducted. The claimants have alleged that 34-years' old deceased was mason earning Rs. 6,000/- per month and due to his untimely death all the claimants who were dependants on him and are his legal representatives have suffered financial crisis. The tempo was owned by opposite party no.1 insured with O.P. no. 2 and O.P. no. 3 was driving tempo at the time of accident. The claimants had preferred claim for Rs. 35.32 lacs. The opposite parties no. 1 and 3 did not prefer to contest the claim petition. However, the opposite party no. 2 had denied all the allegations of claimants including the insurance of the offending vehicle. They have further stated that the driver of the vehicle was not having a valid and effective driving license and claimants are required to prove that the vehicle had valid permit, fitness and insurance policy. In order to prove their case, the claimants have examined Smt. Suman (widow of the deceased) PW 1, Dhani Ram PW 2, Satpal PW 3, Jagbira PW 4 and Narendra Kumar. They have also filed certified copies of FIR, site plan, post-mortem report, charge-sheet against opposite party no. 3, vehicle release application and order dated 4.4.2009 passed thereon, photo copy of driving license of opposite party no. 3, R.C., permit and insurance cover-note of the tempo issued by opposite party no.3. The opposite parties did not adduce any oral evidence. However, the opposite party no. 3 had filed certified copy of cover note of vehicle for the period from 23.7.2008 to 22.7.2009. The learned Tribunal after analysis of the evidence adduced by the parties has found that the offending vehicle was insured with the appellant; that the driver of the vehicle possessed valid and effective driving licence on the date of accident and the other documents of the vehicle were also valid. It has been further observed that the instant accident took place due to rash and negligent driving of offending vehicle by its driver and the deceased suffered death on account of fatal injuries sustained by him in the instant accident, and awarded compensation as stated above and has saddled the liability to pay compensation on the appellant. Aggrieved the insurer has come up in appeal.
We have heard the learned counsel for the parties and perused the impugned award.
Learned counsel for the appellant has vehemently argued that at the time of accident 10-15 passengers were traveling in the Tempo, while according to the documents of the vehicle it was authorized for carrying three passengers only, so the insured has committed breach of terms and conditions of the permit as well as the insurance policy, therefore, the appellant is not liable to satisfy the award. He further submitted that according to eye witness, Narendra Kumar had lodged FIR of the accident against driver Imran, but the owner knew that he was not having a valid and effective driving license, so with the collusion of the police driver Imran had been replaced by Mukarram. In support of his 1st argument learned counsel has placed reliance on the case of National Insurance Co. Ltd. Vs. Challa Bharathamma and others AIR 2004 SC 4882. Contra learned counsel for the respondents has argued that if it is found that the vehicle was carrying passengers more than its approved capacity, then the insurance company is liable to pay compensation only in respect of persons who could validly travel in the vehicle and for rest injured/deceased the owner would be liable. In this connection he has referred to the latest case of United India Insurance Co. Ltd. Vs. K. M. Poonam and others 2011 (3) TAC 376 (SC). He has further supported the findings of the Tribunal with regard to driver of the offending vehicle at the time of accident on the premise that no contra evidence has been led by any of the opposite parties in this regard, so the findings of the Tribunal based on the eye witness account of the accident are correct and do not require interference.
Firstly we would deal with the 1st argument advanced on behalf of the appellant with regard to breach of permit and insurance policy by the insured. The registration certificate, permit and insurance policy of the offending tempo show that its seating capacity was three excluding driver. This fact has not been disputed on behalf of respondents no. 1 to 6. It has been also found by the Tribunal on the basis of evidence adduced in the case that at the time of accident more than three persons were traveling in the tempo. The moot question is about the liability of the insurer to satisfy the award or in other words whether on this premise the insurer can escape from its liability to pay the compensation awarded to the claimants on account of the death of their bread winner in the instant motor accident ? In the facts of the case of National Insurance Co. Ltd. Vs. Challa Bharathamma (supra), the auto-rickshaw plying on public place at the time of accident had no permit at all. At the time of the accident three persons were traveling in the vehicle, two of them lost their lives and one was seriously injured in the accident. The insurer resisted the claim on the ground that the insured had not obtained permit to ply the vehicle and therefore, in terms of the policy of the insurance the insurer had no liability. The Tribunal accepted the plea, however, the High Court held that the insurer was liable to indemnify the award on the ground that since the vehicle had no permit, so question of violation of any condition does not arise. On these facts, the Apex Court held that a person without permit to ply a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Plying of a vehicle without a permit is an infraction. Therefore, in terms of Section 149(2) of Motor Vehicles Act defence is available to the insurer on that aspect. The Hon'ble Court directed the insurer to satisfy the award and liberty was give to realise the amount of compensation from the owner of the vehicle. Therefore, appellant cannot derive any benefit from this decision. The case is distinguished on facts. However, we find that the facts of the case of Untied India Insurance Co. Ltd. Vs. K. M. Poonam and others (supra) are quite similar to the instant case. In the facts of this case the offending jeep was having sitting capacity of six persons including driver. On the fateful day the jeep carrying fifteen passengers fell into a ditch resulting into the death of driver and majority of the passengers while causing serious injuries to the remaining passengers. The Tribunal held that even if a large number of passengers than was permitted under the terms of the insurance policy were being carried in the vehicle, it could not be said that the insurance company would stand exonerated from its liability because the vehicle was insured for third party coverage for unlimited liability as it did not amount to breach of the terms and conditions of the Policy and the insurer would still be liable since the vehicle was legally insured. The appeal carried by the insurer to the High Court also failed. Before the Apex Court, on behalf insurer-appellant it was contended that having regard to the provisions of Section 149 of Motor Vehicles Act, 1988, the liability, if any, of the insurance company for payment of compensation would have to be limited to the number of passengers validly permitted to be carried in the vehicle covered by the insurance policy and did not extend to the number of passengers carried in excess of the permitted number. In this connection reliance was placed on the cases of National Insurnace Co. Ltd. Vs. Anjana Shyam & Ors. (2007) 7 SCC 455 wherein while considering the provisions of Section 147(1)(b) (ii) and (2) and Section 149(1), (2) and (5) of 1988 Act in relation to an insurer's liability, their lordships came to the conclusion that the insurer's liability was limited by the insurance taken out for the number of permitted passengers and did not extend to paying amounts decreed in respect of other passengers. However, taking recourse to a harmonious construction of the relevant provisions, it was held that the total amount of compensation payable should be deposited by the insurer which could be proportionately distributed to all the claimants, who could recover the balance of the compensation amounts awarded to them from the owner of the vehicle. Reliance was also placed on two-Judge Bench decision of the Apex Court in National Insurance Co. Ltd. Vs. Challa Bharathamma & Ors (supra), in which while taking note of the earlier decisions rendered by a two-Judge Bench of Hon'ble Supreme Court in New India Assurance Co. Vs. Satpal Singh & Ors. (2000) 1 SCC 237, a three-Judge Bench in New India Assurance Co. Ltd. Vs. Asha Rani & Ors (2003) 2 SCC 223 and also the decision of another two-Judge Bench of the Apex Court in National Insurance Company Vs. Nicolletta Rohtagi (2002) 7 SCC 456, their Lordships held that when an insurer proved not to be liable to pay compensation in terms of Section 149(2) of the 1988 Act, it could not be made liable for payment of the compensation awarded. However, it was further observed that having regard to the beneficial object of the Act, it would be proper for the insurer to satisfy the award and to recover the amount from the owner, without taking recourse to a separate suit from the Executing Court itself. The Hon'ble Court after considering the above referred cases as also the provisions of Sections 146, 147(1)(a) and (b), (2) and 149 of 1988 Act has held in paras-20, 22, 24 and 25 as under :
"20. The law as regards the liability of insurers towards third parties killed or injured in accidents involving different types of motor vehicles, has been crystallized in the several decisions of this Court referred to herein above. The kind of third party risk that we are concerned with in this case involves purported breach of the conditions contained in the insurance agreement executed by and between the insurer and the insured.
22. However in order to fix the liability of the insurer, the provisions of Section 147 have to be read with Section 149 of the Act which deals with the duty of the insurer to satisfy judgments and awards against persons insured in respect of third party risks. Although, on behalf of the Insurance Company it has been sought to be contended that no third party risks were involved in the accident and that the persons traveling in the ill-fated vehicle were gratuitous passengers, the Insurance Company cannot get away from the fact that the vehicle was insured for carrying six persons and the liability of the Insurance Company was to pay compensation to the extent of at least six of the occupants of the vehicle, including the driver.
24.The liability of the insurer, therefore, is confined to the number of persons covered by the insurance policy and not beyond the same. In other words, as in the present case, since 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 would be confined to six persons only, notwithstanding the larger number of persons carried in the vehicle. Such excess number of persons would have to be treated as third parties, but since no premium had been paid in the policy for them, the insurer would not be liable to make payment of the compensation amount as far as they are concerned. However, the liability of the Insurance Company to make payment even in respect of persons not covered by the insurance policy continues under the provisions of sub-section (1) of Section 149 of the Act, as it would be entitled to recover the same if it could prove that one of the conditions of the policy had been breached by the owner of the vehicle. In the instant case, any of the persons traveling in the vehicle in excess of the permitted number of six passengers, though entitled to be compensated by the owner of the vehicle, would still be entitled to receive the compensation amount from the insurer, who could then recover it from the insured owner of the vehicle.
25. As mentioned herein before, in the instant case, the insurance policy taken out by the owner of the vehicle was in respect of six passengers, including the driver, traveling in the vehicle in question. The liability for payment of the other passengers in excess of six passengers would be that of the owner of the vehicle who would be required to compensate the injured or the family of the deceased to the extent of compensation awarded by the Tribunal."
In the facts of the instant case the appellant has not pleaded nor it has come from the evidence adduced in the case that except deceased Ravindra Kumar any other person had suffered death in the instant accident. It has come in the evidence led by the claimant that some other passengers were also injured, but it could not be established that they have filed any claim petition. In this view of the matter, the appellant cannot escape from its liability from indemnifying the award to the claimants-respondents no. 1 to 6 and the findings of the learned Tribunal on this score are correct.
Now as regards the change of driver of the offending vehicle at the time of accident, the claimants have furnished explanation about wrong mentioning of the name of the driver and the learned Tribunal after appreciating evidence on record has concluded that name of Imran was mentioned by the first informant on the saying of other people. The claimants have examined the maker of the FIR Narendra Kumar PW 5 who has testified the above facts. He has been cross-examined on behalf of the appellants, but nothing adverse could be elicited from him. It is noteworthy that registration number of the offending vehicle had been correctly mentioned in the FIR and the police after investigation has submitted charge-sheet against Mukarram, who along with the owner of the vehicle have not chosen to contest the claim petition. In these circumstances, the findings of the Tribunal on this issue do not suffer from any illegality.
The Tribunal after analysis of oral and documentary evidence adduced by the parties has calculated the compensation in view of the law laid down by the Apex Court in the cases of Luxmi Devi and others vs. Mohd. Tabbar and another 2008 (2) TAC 394 and Smt. Sarla Verma and others vs. Delhi Transport Corporation and another reported in 2009 (2) TAC 677.
In view of the above, we do not find any valid reason to interfere with the impugned award. Resultantly the appeal fails and is dismissed. However, the dismissal of the appeal will not affect the rights of other parties.
The Registry is directed to remit back the statutory amount deposited by the appellant to the concerned Tribunal within four weeks.
Order Date :- 13.7.2012 Ak/