Kerala High Court
The New India Assurance Co Ltd vs K.Sarvothama Kamath on 20 October, 2008
Author: M.N.Krishnan
Bench: M.N.Krishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
MFA.No. 483 of 2002()
1. THE NEW INDIA ASSURANCE CO LTD.,
... Petitioner
Vs
1. K.SARVOTHAMA KAMATH,S/O.BHASKARA KAMATH,
... Respondent
2. BIJU, DRIVER KL-13/A-7113,
3. CANNANORE DISTRICT SC/ST MOTOR
For Petitioner :SRI.GEORGE CHERIAN (THIRUVALLA)
For Respondent :SRI.P.SHRIHARI
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :20/10/2008
O R D E R
M.N.KRISHNAN, J
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M.F.A. No.483 OF 2002
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Dated this the 20th day of October 2008
JUDGMENT
This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Kasargod in O.P.(MV)No.509 of 1998. It was an application filed for claiming damages. The claimant is a dealer of Bharath Petroleum. On 3.11.1997 while his diesel carried in a tanker lorry was proceeding from Kannur to Kasargod a bus bearing Regn.No.KL-13A-7113 driven by the first respondent in the claim petition dashed against the rear portion of the lorry resulting in loss of 400 litres of diesel and therefore he has claimed a total compensation of Rs.50,000/-. The insurance company would contend that there was no liability or insurance coverage for the 3rd party and the amount claimed is exorbitant. The Tribunal found that the accident took place on account of the negligence of the bus driver and awarded a sum of Rs.36,030/- by way of damages due to the loss of the diesel. It is against that decision, the insurance company has come up in appeal.
2. Learned counsel for the insurance company has raised two MFA 483/2002 -:2:- contentions, viz., (1) the Tribunal has no jurisdiction to decide the question involved in the case and the remedy for the party is elsewhere. (2) In the absence of a policy taken under the Public Liability Insurance Act, 1991 the claimant cannot file a claim petition against the insurance company. The first question to be considered is regarding the jurisdiction of the Tribunal to entertain the claim. Admittedly, the diesel belonging to the claimant was carried in a tanker lorry. On account of a collision, i.e. a hit from behind by a bus which was insured by the appellant company a hole was made in the tanker which resulted in the leakage of diesel. Learned counsel for the insurance company would contend that under the provisions of the Motor Vehicles Act, the liability is only with respect to damages to any property of a 3rd party. Learned counsel would contend before me that the diesel was carried in the vehicle on account of a contract between the owner of the lorry and the claimant and if there is any loss sustained to the owner of the diesel his cause of action arises under the provisions of the Carriers Act and the insurance company of the bus cannot be liable to pay the same. In order to substantiate that contention learned counsel had relied upon the decisions of the Madras High Court and the Karnataka High Court. He had referred to the decision of the Madras High Court reported in K.Thiagarajan and another v. Thanjavur Co-operative Ltd. and others(1998 ACJ 87) and that of MFA 483/2002 -:3:- the Karnataka High Court in Oriental Insurance Co.Ltd. v. K.Buden Sab and another (2002ACJ 139). In both the cases the courts took the view that the Tribunal has no jurisdiction. But the facts of that case would specifically show that the damage was caused on account of the capsizing of the vehicle in which the goods were carried and there was no intervention of a 3rd party to cause damage. The Court was considering the question that there was a contract between the owner of the goods and the owner of the vehicle whereby the owner of the vehicle had undertaken to carry the goods to the destination safely and therefore when there is any breach it is one coming under the provisions of the Carriers Act for which a civil action can lie. But, so far as the case on hand is concerned, the accident had taken place when the bus driven by the driver which was insured by the appellant dashed on the back of the oil tanker resulting in leakage. So the real tortfeasor in the case is the driver of the bus for whose act the owner is vicariously liable and who is liable to be indemnified by the insurance company. So, it has to be stated that damages that is caused to the diesel carried in the tanker lorry which belonged to the claimant was on account of the negligence of the bus driver, who was a 3rd party to the tanker lorry as well as the owner of the goods carried in the tanker lorry and therefore the damage caused to the tanker lorry as well as to the contents in the tanker MFA 483/2002 -:4:- lorry are that of 3rd parties so far as it relates to the owner and insurer of the bus is concerned.
3. Now a reference to Section 165 of the Motor Vehicle Act may be relevant. Under Section 165(1) the Tribunal will have the jurisdiction and it is constituted for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both. So when a damage is caused to the property of a 3rd party Section 165 of the Act comes into play. Therefore it cannot be said that there is no jurisdiction under Section 165 of the Act to consider the damage caused to the property of a 3rd party. The contention of the learned counsel for the appellant could have been appreciated and found in favour most probably in a situation where the vehicle in which the goods had capsized and damages were caused to the goods again subject to the conditions whether there is a complete bar of jurisdiction under the provisions of the Carriers Act. So from these discussions, I hold that the Tribunal has got the jurisdiction and it was correct in proceeding with the matter.
4. The next contention raised by the learned counsel for the insurance company is that there is a statutory obligation cast under the provisions of MFA 483/2002 -:5:- the Public Liability Insurance Act of 1991 with respect to a vehicle which carries dangerous or hazardous goods to have a policy under the Act of 1991. It is true that such a policy is contemplated under the Act but whether it will take away the jurisdiction of a Tribunal was considered by a Judge of the Gauhati High Court in M/s.New India Assurance Co.Ltd. v. Biman Prasad Barkakati (2008(2) TAC 906). The said Court held that it will not result in the bar of jurisdiction and that the case is maintainable. In paragraph 19 of the judgment the said Court held as follows:
"From the above discussions this Court is of the considered view that the second ground in this appeals for challenging the impugned judgment and award of the learned Member, Motor Accident Claims Tribunal is not tenable under the law. This Court also held that the requirement of policies and limit of liability under a policy of insurance of the vehicle under Section 147 of the Motor Vehicles Act shall not subject to a policy of insurance under the public Liability Insurance Act, 1991 even in the case of a vehicle carrying or meant to carry dangerous or hazardous goods and also that it is a requirement for the vehicle carrying or meant to carry dangerous and hazardous goods to have a policy of insurance under the Public Liability Insurance Act, 1991. In the case of failure on the part of the vehicle carrying or meant to carry dangerous and hazardous goods to have a policy under the Public Liability Insurance Act, 1991, there are provisions under the Public Liability Insurance Act, 1991 to meet such situation".
Therefore the said contention of the learned counsel for the insurance company also cannot be accepted.
MFA 483/2002 -:6:-
5. Lastly, learned counsel for the respondent wanted to impress the court on the question that this is a social welfare legislation intended to confer benefit on the affected victims and it should not be very strictly construed. As discussed by me earlier, even if a strict construction is made, certainly according to me, the goods carried in the tanker lorry will become the property of a 3rd party and therefore there will not be any bar under Section 165 of the Motor Vehicles Act. There is no serious dispute regarding the quantum arrived at. Therefore the appeal lacks merit and the same is dismissed. But in the circumstances, there will be no order as to costs.
M.N.KRISHNAN, JUDGE Cdp/-