Allahabad High Court
United India Insurance Company Ltd. ... vs Smt. Neetu Soni And Ors. on 23 July, 2021
Author: Jaspreet Singh
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Court No. - 20 Case :- FIRST APPEAL FROM ORDER No. - 237 of 2014 Appellant :- United India Insurance Company Ltd. Throu.Divisional Manager Respondent :- Smt. Neetu Soni And Ors. Counsel for Appellant :- Anil Kumar Srivastava Counsel for Respondent :- Sandeep Kumar Agrawal,Vishal Tahlani Along with Case :- FIRST APPEAL FROM ORDER No. - 238 of 2014 Appellant :- United India Insurance Company Ltd. Throu.Divisional Manager Respondent :- Ram Saheli And Ors. Counsel for Appellant :- Anil Kumar Srivastava Counsel for Respondent :- Sandeep Kr.Agrawal,Vishal Tahlani Along with Case :- FIRST APPEAL FROM ORDER No. - 244 of 2014 Appellant :- United India Insurance Company Ltd. Throu Div. Manager Lko. Respondent :- Smt. Usha Devi And Ors. Counsel for Appellant :- Anil Kumar Srivastava Hon'ble Jaspreet Singh,J.
1. This is a batch of three appeals filed under Section 173 of the Motor Vehicles Act, 1988 against the award dated 24.12.2013 passed by the Motor Accident Claims Tribunal/ADJ, Court No. 16, Lucknow.
2. An accident took place on 31.01.2012 at around 10:00 PM wherein Sri Anuj Kumar Soni, Yadu Nath @ Guddu and Sanjay Sharma, all three, were riding on a motorcycle bearing No. U.P. 32-BQ-9201 and while moving towards Lucknow from Atariya side, near Ram Avtar Dhaba, Bhitauli Wahad, P.S. Madion, District Lucknow, a truck bearing No. HR-38 D-1220 belonging to Sri Owais Khan and was said to be driven rashly and negligently hit the motorcycle from behind as a result the three riders of the motorcycle suffered grievous injuries and all three died on the spot.
3. The legal heirs of Anuj Kumar Soni preferred claim petition No. 101 of 2012 wherein by means of the award dated 24.12.2013, a sum of Rs. 6,95,000/- was awarded along with 7 % interest per annum from the date of filing of the claim petition till the date of its actual payment. This claim petition No. 101 of 2012 has given rise to F.A.F.O. No. 237 of 2014. In the aforesaid F.A.F.O. No. 237 of 2014, it was pointed out by the learned counsel for the private respondents that Smt. Rameshwari Devi had expired during the pendency of the appeal while her legal heirs are already on record as respondent nos. 1 and 2.
4. Considering the aforesaid, the Court permitted the appellants to carry out the necessary amendments in the array of parties during the course of the day.
5. The legal heirs of Yadu Nath @ Guddu preferred claim petition No. 99 of 2012 wherein the MACT/ADJ Court No. 16, Lucknow awarded a sum of Rs. 5,4,600/- along with 7 % interest per annum from the date of filing of the claim petition till the date of its actual payment and this claim petition has given rise to F.A.F.O. No. 238 of 2014.
6. The legal heirs of Sanjay Sharma preferred a claim petition no. 100 of 2012 wherein by means of award dated 24.12.2013 passed by the MACT/ADJ, Court No. 16, Lucknow awarded a sum of Rs. 4,74,000/- along with 7% interest per annum payable from the date of filing of the claim petition till the date of its actual payment and this claim petition has given rise to F.A.F.O. No. 244 of 2014.
7. That since the three claim petitions relates to the same accident and three separate and different persons lost their lives, consequently, the legal heirs of the said deceased had preferred the claim petitions wherein the defendant i.e. the owner of the offending vehicle namely Owais Khan was impleaded as respondent no. 4 in F.A.F.O. No. 237 of 2014 whereas in the other two connected F.A.F.Os., he is impleaded as respondent nos. 7 and 6 respectively. Since the appellant namely United India Insurance Company Ltd. had assailed the award dated 24.12.2013 passed in the above mentioned three appeals on similar grounds and common questions of law and facts are involved, hence, the Court proceeds to decide three appeals together by means of this common judgment.
8. In order to appreciate the controversy involved in the aforesaid three appeals, briefly, the facts giving rise to the appeals are being noticed first:-
9. On 31.01.2012 at around 10:00 PM, three persons namely Anuj Soni, Yadu Nath @ Guddu and Sanjay Kumar Sharma were riding on a motorcycle bearing No. U.P. 32-BQ-9201. It is further stated that while they were moving from Attaria towards Lucknow and had reached Ram Avtar Dhaba at Bhitauli Wahad, P.S. Madiyaon, District Lucknow, the offending truck bearing No. HR-38-D-1220 which was being driven rashly and negligently hit the said motorcycle from behind as a result, three riders of the motorcycle sustained grievous injuries and they expired on the spot. It is also stated that the offending vehicle belonged to Sri Owais Khan and was duly insured with United India Insurance Company Ltd.
10. The owner of the truck Owais Khan filed his written statement and had submitted that the offending truck in question was initially in the name of M/s Deep Oil Tanker and the said truck was insured with United India Insurance Company Ltd. The said Insurance Cover was purchased by M/s Deep Oil Tanker and the premium thereof was paid through cheque. The policy was valid for the period 04.03.2011 till 03.03.2012. It is also stated that Owais Khan purchased the aforesaid truck from M/s Deep Oil Tanker on 14.12.2011 along with the Insurance Cover. It is also stated that the driver of the aforesaid truck had valid and subsisting license and the truck also possessed other valid documents, hence, if at all any liability accrued, the same was liable to be indemnified by the Insurance Company.
11. The plea raised by Sri Owais Khan was that the three riders of the motorcycle were also negligent, inasmuch as, it is not permitted for three persons to ride on the motorcycle, coupled with the fact that all three of them were not wearing helmets. It was also stated that the offending truck did not hit the motorcycle from behind rather the motorcycle was being driven rashly and negligently and while overtaking the truck, it hit the middle part of the truck which caused the accident, ultimately, this being a case of contributory negligence, hence, the owner sought to avoid its liability.
12. The Insurance Company initially preferred its written statement raising general defences in order to avoid its liability rather it amended its written statement wherein it pleaded that the Insurance Company was not liable to indemnify the award as the truck in question was not insured with the Company in the first place.
13. Elaborating the defence, the Insurance Company took a specific plea that the truck in question belonged to M/s Deep Oil Tanker. They received a check for the payment of premium, however, the said cheque was dishonoured on 14.03.2011. The Insurance Company cancelled the policy on 15.03.2011 and informed the insurer i.e. M/s Deep Oil Tanker of the aforesaid. Despite the information having been conveyed, the insured i.e. M/s Deep Oil Tanker did not make good the payment of premium, consequently, the truck was never insured for the aforesaid reason and as the incident occurred on 31.01.2012, thus, on the said date, the truck was not insured.
14. It further took a plea that Sri Owais Khan purchased the truck on 14.12.2011 and the said information was also not conveyed to the Insurance Company nor the Insurance Cover was transferred along with the transfer of vehicle, thus, for all the aforesaid reasons, it was a clear case where the truck was un-insured and no liability could accrued with Insurance Company.
15. The Motor Accident Claims Tribunal after considering the respective pleadings of the parties framed seven issues.
16. Considering the evidence both oral and documentary brought on record, the Tribunal concluded that the accident was an outcome of rash and negligent driving of the offending truck bearing No HR-38-D-1220. It also negatived the plea of contributory negligence, inasmuch as, the Tribunal took note of the eye-witness account who was the owner of Ram Avtar Dhaba who categorically deposed that the offending truck hit the motorcycle from behind and there was no negligence on the part of the motorcycle.
17. The Tribunal further concluded that merely because three persons were riding the motorcycle this in itself cannot be factored to conclude that the motorcycle riders contributed to the accident, inasmuch as, the manner in which the accident was caused, there was no negligence of the riders despite that they had violated the traffic rules. Since the said violation had nothing to do with the accident as it was caused by the truck hitting from behind.
18. The Tribunal also noticed that though the Insurance Company had taken the plea that the Truck was un-insured, however, the Insurance Company failed to establish that after the dishonour of cheque, it communicated the information to the erstwhile owner namely Deep Oil Tanker nor the said information was communicated to the appropriate Transport Authorities and other Traffic Authorities, hence, in absence of such evidence, the Tribunal concluded that the truck was not insured, nevertheless, it directed the Insurance Company to pay since the compensation to the third parties who cannot be deprived but allowed the Insurance Company to recover the amount from the owner.
19. With the aforesaid findings, the Tribunal assessed the compensation in respect of three deceased persons and in the case of Anuj Kumar Soni (deceased), the legal heirs were awarded a sum of Rs. 6,95,000/- alongwith 7% interest per annum. In respect of Yadu Nath @ Guddu (deceased) his legal heirs were awarded a sum of Rs. 5,04,600/- along with 7 % interest and in respect of Sri Sanjay Sharma (deceased) his legal heirs were awarded a sum of Rs. 4,74 along with 7% interest per annum.
20. The aforesaid three claim petitions though decided separately but their award is of the same date i.e. 24.12.2013, have been assailed by the Insurance Company in the three appeals.
21. It has been urged by the learned counsel for the appellant that once the truck was not insured and the appellant had led cogent evidence to indicate that upon receiving the information from the Bank that the cheque for the payment of premium had been dishonoured, an information was sent to the M/s Deep Oil Tanker who did not revert back to make good the payment of premium, consequently, the policy was cancelled on 05.03.2011, hence, on the date of the accident i.e. 31.01.2012, the offending truck bearing No. HR-38-D-1220 was not insured. In such a situation where the truck in itself was not insured and the truck was sold by M/s Deep Oil Tanker to Sri Owais Khan on 14.12.2011 who also did not inform the Insurance Company nor got it insured, hence, in such a circumstance, the Insurance Company cannot be made to pay the compensation and the Tribunal has erred in directing the Insurance Company to pay and then recover from the owner such direction is erroneous.
22. In support of his submissions, the learned counsel for the appellant has relied upon the decision of the Apex Court in the case of National Insurance Company Vs. Seema Malhotra and Others reported in 2001 (3) SCC 151; National Insurance Company Ltd. Vs. Parwathenene and Another reported in 2009 (4) TAC 382 (SC) and United India Company Vs. Laxmanna and Others reported in 2012 (5) SCC 234.
23. The other submission of the learned counsel for the appellant is that the Tribunal has erred in ignoring the plea raised by the Insurance Company regarding contributory negligence. It has been urged that it was a categorical submission that three persons were riding the motorcycle which was being driven rashly and negligently and while overtaking the truck, it hit the middle part which was the cause of the accident. It cannot be said that the truck alone was responsible rather the three persons on the motorcycle were also responsible as they were violating the traffic rules by three persons riding a motorcycle while only two persons are permitted and all three were riding on the motorcycle without wearing helmets. This rash and negligent act also contributed to the accident, hence, the finding of the Tribunal on the aforesaid count is vitiated as appropriate evidence has not been considered.
24. The learned counsel for the claimant-respondents has refuted the aforesaid submissions and has urged that though the plea regarding the truck being un-insured on the date of the accident was raised by the Insurance Company but it did not prove the same in accordance with law.
25. It is urged that no evidence was brought on record to indicate that information was conveyed regarding the dishonour of the cheque to M/s Deep Oil Tanker. It is also urged that there is nothing on record to indicate that the information regarding cancellation of the policy was conveyed to the insured i.e. M/s Deep Oil Tanker nor there was any evidence to indicate that the same was conveyed to the relevant Transport Authorities and the Traffic Authorities.
26. It is also urged that, had, the aforesaid information been conveyed to the appropriate authorities as alleged by the Insurance Company, then at the relevant time when Sri Owais Khan purchased the truck and presented the papers for transfer before the relevant transport authorities, the same would have been flagged and Sri Owais Khan would have been required to get the truck insured before the transfer could take place which has not been done and for the said reason the truck was transferred from M/s Deep Oil Tanker to Sri Owais Khan, hence, in such circumstances where the Insurance Company has not complied with its obligations as provided in law it cannot avoid its liability for payment to the parties (claimants in the instant case).
27. It is further urged that the Tribunal has considered the evidence in detail both on the issue of the truck being un-insured as well as contributory negligence and has recorded its categorical findings which are not liable to be disturbed in appeal as there is no legal infirmity, hence, the appeal being devoid of merits is liable to be dismissed.
28. The learned counsel for the claimant-respondent has relied upon the decision of the Apex Court in the case of (i) Mangla Ram Vs. Oriental Insurance Company Ltd. and Others reported in 2018 (5) SCC 656; (ii) New India Insurance Company Ltd. Vs. Rula and Others reported in 2000 (3) SCC 195; (iii) Oriental Insurance Co. Ltd. Vs. Inderjit Kaur and Others reported in 1998 (1) SCC 371 and in the case of (v) National Insurance Company Ltd. Vs. Jitender Kumar and Another reported in AIR 2009 Alld 70 and The New India Assurance Company Ltd. Vs. Smt. Khatoon and Others reported in 2011(1) TAC 24 (Allahabad) (DB).
29. Heard Sri Anil Kumar Srivastava, learned counsel for the appellant and Sri Sandeep Agarwal, learned counsel appearing for the claimant-respondents in all the three appeals.
30. It will be relevant to notice that the owner of the offending vehicle Sri Owais Khan was issued notices including through Dasti summons yet none has appeared on his behalf to contest the aforesaid appeals.
31. In light of the submissions of the learned counsel for the parties, the two points for determination before this Court is; (i) Whether the Insurance Company can avoid its liability to the third parties i.e. the claimants for the truck being un-insured on the date of the accident i.e. 31.01.2012 ? (ii) Whether three persons riding on a motorcycle in violation of the traffic rules without helmet per-se would amount to contributory negligence or the manner in which the accident has occurred is to be ascertained and whether in the said occurrence it has to be determined that the rider of the motorcycle had committed an act which contributed to the accident ?.
32. From the perusal of the record, it would reveal that the Insurance Company had filed its written statement wherein it amended its written statement and raised an additional plea that the cheque for payment of premium was issued by M/s Deep Oil Tanker vide Cheque No. 011986 dated 04.03.2011 for a sum of Rs. 16,855/- drawn on Deutsch Bank (Asia) which was dishonoured on 14.03.2011. The Company had informed M/s Deep Oil Tanker, its agent, the R.T.O. Faridabad and the Regional Office at New Delhi.
33. The Insurance Company also took the plea that the insurance policy was cancelled and since the Deep Oil Tanker did not come forward to pay the aforesaid amount, thus, the cancelled policy rendered the contract of insurance void, hence, for the said reason, no liability could be fastened on the company.
34. In support of the aforesaid plea, the Insurance Company examined Sri Pankaj Prakash who was posted as the Deputy Manager at the Regional Office at Lucknow and he was authorized to depose on behalf of the Company.
35. From the perusal of the statement given by Sri Pankaj Prakash, he narrated that the Company had received the cheque for the premium from M/s Deep Oil Tanker, however, the said cheque was dishonoured with the endorsement that the account was closed. He stated that the said cheque which was issued by M/s Deep Oil Tanker though actually it was drawn by an individual namely Sandeep Kumar. He also stated on oath that on the basis of the said cheque the insurance cover was issued for the vehicle in question valid for the period 04.03.2011 till 03.03.2012. It was also deposed that the policy was cancelled on 15.03.2011 and the information in this regard was conveyed to M/s Deep Oil Tanker through a letter in writing through Blaze Flash Courier Ltd. It was also deposed that the entries regarding dispatch of the said letter through courier was also recorded in the dispatch register maintained by the company. A certificate was received from the Courier Company indicating that it had delivered the said article at the address i.e. of the insured M/s Deep Oil Tanker.
36. On the strength of the aforesaid deposition and the documents placed on record by the Insurance Company vide document list bearing Paper No. Ga-32, Ga-35 and Ga-49, the Insurance Company contested its plea.
37. Per contra, the learned counsel for the claimant-respondents has drawn the attention of the Court to the alleged deposition of Sri Pankaj Prakash. It has been urged that upon cross-examining Sri Pankaj Prakash, he clearly deposed that the documents regarding cancellation of the policy which was filed by the document list dated 02.07.2013(paper no. Ga-32) were all photocopies.
38. The learned counsel for the claimants-respondents has further drawn the attention of the Court to a letter dated 12.03.2013 bearing Paper No. Ga-32/3 which is a letter issued by M/s Manoj Enterprises who gave a certificate that the letters of M/s United India Insurance Company Ltd. are sent by M/s Blaze Flash Courier Ltd. of which M/s Manoj Enterprises is the franchisee. It further stated that the said letters sent by M/s United India Insurance Company Ltd. to M/s Deep Oil Tanker on 23.03.2011 which is also reflected at serial no. 6 of the dispatch register, its details be furnished. The certificate states that the said documents, are neither preserved by M/s Manoj Enterprises nor the parent company i.e. M/s Blaze Flash Courier Ltd, sent more than a year ago, for the aforesaid reasons, it was unable to provide any record, yet in the said letter, it indicated that the letter dated 23.03.2011 which included a letter sent to M/s Deep Oil Tanker were sent in the month of March, 2011 through Manoj Enterprises who are the franchisee of M/s Blaze Flash Courier Ltd.
39. This letter is dated 12.03.2013 and on the strength of it, it has been urged by the learned counsel that the photocopies of the dispatch register in the first place is not admissible in evidence, moreover, there is no receipt on record to establish that the said letter was couriered through M/s Blaze Flash Courier Ltd. in the first place.
40. It is also urged that the said certificate issued by the franchisee is wholly immaterial, inasmuch as, it has clearly stated that it does not have record prior to one year nor the Company Blaze Flash Courier Ltd. keeps such record prior to one year, yet, in the same breath it has certified that letters were issued which also included a letter to M/s Deep Oil Tanker.
41. Considering the rival submissions and the material on record, this Court finds that in absence of any original receipt which ought to have been kept by the United India Insurance Company Ltd. at its end in its usual course of business to indicate that a letter was sent to M/s Deep Oil Tanker. Coupled with the fact that the Insurance Company has merely brought on record a photocopy of the dispatch register dated 23.03.2011 wherein there is only a reference that on the said date a letter was also sent to M/s Deep Oil Tanker, however, the said document is a photocopy and inadmissible in evidence, yet, if the same is perused, it would indicate that at best it only shows that the information was sent to M/s Deep Oil Tanker. There is nothing on record nor there is any statement either in the examination-in-chief to state that the information was also conveyed to the relevant transport authorities or the traffic department. There is also no explanation to the effect that when the aforesaid cheque was dishonoured on 14.03.2011 and the policy was cancelled on 15.03.2011 then why the aforesaid information was sent to the alleged insured M/s Deep Oil Tanker on 23.03.2011 nor why the original was not produced when the said documents were denied by the claimants.
42. In this context if the cross-examination of the witness Pankaj Prakash is noticed, he has stated that he had sent the information through M/s Blaze Flash Courier Ltd. and the reason why it was not sent through post office was that the post office was at a distance. In his cross-examination, the witness also stated that the courier was preferred since the documents are got personally received yet no document has been brought on record to indicate that the alleged documents sent and addressed to M/s Deep Oil Tanker was received, as in the normal course, the original courier receipt as well as the original proof of delivery ought to be in the record and custody of the Insurance Company especially when they knew that the cheque in question had been dishonoured. The cross-examination further indicates that the witness could not satisfactorily explain the chain of events regarding the dishonour of cheque, the cancellation of policy, intimation sent to M/s Deep Oil Tanker as well as the fact that no information was sent to the relevant Transport Authorities or the Traffic Department.
43. In light of the aforesaid statement and the documents on record, this Court clearly finds that the conclusion arrived at by the Tribunal is based on the evidence on record and does not suffer from any infirmity which may persuade this Court to interfere. There is no explanation why the original documents were not filed nor there is any attempt to explain and to get the said documents treated as secondary evidence. The conclusion drawn by the Tribunal, coupled with the narrative as well as the tenor of the witness noticed in his cross-examination clearly points to the discrepancies and the fact that the Insurance Company could not successfully prove that the upon the cheque being dishonoured, its intimation was promptly conveyed to the insured M/s Deep Oil Tanker, the relevant Transport Authorities and the Traffic Authorities.
44. At this stage, it will be relevant to notice the decisions of the Apex Court in the case of Mangla Ram (Supra) wherein in paragraph 35 and 36 of the said report, the Apex Court has held as under:-
"......35. The next question is about the liability of insurer to pay the compensation amount. The Tribunal has absolved the Insurance Company on the finding that no premium was received by the Insurance Company nor was any insurance policy ever issued by the Insurance Company in relation to the offending vehicle. Respondents 2 and 3 had relied on a cover note which according to Respondent 1 Insurance Company was fraudulently obtained from the then Development Officer, who was later on sacked by Respondent 1 Insurance Company. The possibility of misuse of some cover notes lying with him could not be ruled out.
36. Respondents 2 and 3 have relied on the decision of this Court in Rula [New India Assurance Co. Ltd. v. Rula, (2000) 3 SCC 195 : 2000 SCC (Cri) 601] . That decision will be of no avail to Respondents 2 & 3. In that case, the Court found that the insurance policy was already issued after accepting the cheque; whereas in the present case, Respondent 1 Insurance Company has been able to show that no payment was received by the Company towards the insurance premium nor had any insurance policy been issued in respect of the offending vehicle (jeep). However, the claim of Respondents 2 & 3 to the extent that they possessed a cover note issued by the then Development Officer of Oriental Insurance Company (Respondent 1) will have to be accepted coupled with the fact that there is no positive evidence to indicate that the said cover note is ante-dated. Pertinently, the cover note has been issued by the then Development Officer at a point of time when he was still working with Respondent 1 Insurance Company. It must follow that the then Development Officer was acting on behalf of the Insurance Company, even though stricto sensu Respondent 1 Insurance Company may not be liable to pay any compensation as no insurance policy has been issued in respect of the offending vehicle, much less a valid insurance policy. But for the cover note issued by the Development Officer of Respondent 1 Insurance Company at a point of time when he was still working with Respondent 1, to do substantial justice, we may invoke the principle of "pay and recover", as has been enunciated by this Court in National Insurance Co. Ltd. v. Swaran Singh [National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297, para 110 : 2004 SCC (Cri) 733]."
45. Similarly in the case of Rula (Supra) in paragraphs 9, 10 and 11, the Apex Court has also noticed its earlier decision of Indrajit Kaur (Supra) and has held as under:-
"......9. Section 149 casts a duty on the insurer to satisfy judgments and awards against persons insured in respect of third-party risks. Sub-section (1) of Section 149 is quoted below:
"149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third-party risks.--(1) If, after a certificate of insurance has been issued under sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as is required to be covered by a policy under clause (b) of sub-section (1) of Section 147 (being a liability covered by the terms of the policy) or under the provisions of Section 163-A is obtained against any person insured by the policy then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall, subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if he were the judgment-debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments."
10. The contract of insurance in respect of motor vehicles has, therefore, to be construed in the light of the above provisions. Section 146(1) contains a prohibition on the use of the motor vehicles without an insurance policy having been taken in accordance with Chapter XI of the Motor Vehicles Act. The manifest object of this provision is to ensure that the third party, who suffers injuries due to the use of the motor vehicle, may be able to get damages from the owner of the vehicle and recoverability of the damages may not depend on the financial condition or solvency of the driver of the vehicle who had caused the injuries.
11. Thus, any contract of insurance under Chapter XI of the Motor Vehicles Act, 1988 contemplates a third party who is not a signatory or a party to the contract of insurance but is, nevertheless, protected by such contract. As pointed out by this Court in New Asiatic Insurance Co. Ltd. v. Pessumal Dhanamal Aswani [AIR 1964 SC 1736] the rights of the third party to get indemnified can be exercised only against the insurer of the vehicle. It is thus clear that the third party is not concerned and does not come into the picture at all in the matter of payment of premium. Whether the premium has been paid or not is not the concern of the third party who is concerned with the fact that there was a policy issued in respect of the vehicle involved in the accident and it is on the basis of this policy that the claim can be maintained by the third party against the insurer."
46. The decision of the two Division Bench judgments of this Court in the case of Jitendra Kumar (Supra) and Smt. Khatoon (supra) are worthwhile to be noticed.
47. In the case of Jitendra Kumar (supra) a division Bench of this Court while considering the provisions of Motor Vehicles Act as well as the Insurance Act and also the earlier decision of the Apex Court of Indrajit Kaur (Supra), Seema Malhotra (supra), Rula (supra) as well as the National Insurance Company Ltd. Vs. Swaran Singh and Others reported in 2004 (3) SCC 297 and after discussing both statutory provisions as well as the effect of the decisions of the Apex Court in paragraphs 10 to 18 of the said report, however, the relevant paragraph containing the dictum is being reproduced hereafter:-
"17. Before we deal with various contentions raised by the parties it is desirable to look into the legislative history of the provisions for their interpretation. The relevant provisions of the Act indisputably are beneficent to the claimant. They are in the nature of a social welfare legislation.
"18. Chapter XI of the Motor Vehicles Act, 1988, inter alia, provides for compulsory insurance of vehicles in relation to the matters specified therefor. The provision for compulsory insurance indisputably has been made, inter alia, with a view to protect the right of a third party."
48. Similarly, in the case of Khatoon (Supra), a Division Bench of this Court while noticing the statutory provisions of M.V. Act as well as the Insurance Act and the earlier decisions of the Apex Court including the decision of Jitendra Kumar (Supra) in paragraphs 35 to 40 and in paragraph 40 of the said report it has succinctly held as under:-
".....40. This decision, thus, lays down that in case the Insurance Company has cancelled the insurance coverage in respect of a vehicle, it must inform all concerned inclusive of the Regional Transport Authority and the appropriate police authority dealing with traffic simultaneously with the information of cancellation of the insurance coverage to the owner of the vehicle/insured. If the Insurance Company has informed only the owner of the vehicle regarding cancellation of insurance coverage, but has not informed the Regional Transport Authority and appropriate police authority regarding such cancellation, then the Insurance Company will not be able to avoid the liability to pay compensation to the third parties specially in the form of stop-gap arrangement and recover from the owner i.e. insured."
49. While deciding the case of Smt. Khatoon (Supra), a Division Bench of this Court also noticed that there were certain conflicting decisions and the matter has been referred to a Larger Bench of the Apex Court, however, since the reference has yet not been answered, accordingly, the decision has been taken as per the prevailing law.
50. This Court also finds that in the instant case, the Insurance Company has not been able to discharge its burden regarding the plea that the information regarding dishonour of cheque was conveyed to the various Transport and Traffic Authorities by way of cogent evidence, hence, it is not entitled to the benefit of the decisions rendered by the Apex Court in the case of Seema Malhotra (supra) and Parwathenene (Supra).
51. This Court finds that the aforesaid dictum as noticed above is binding on this Court, coupled with the fact that the Insurance Company has already been granted the right of recovery and the claimant-third parties may not suffer especially where the persons have lost their lives in an accident and the compensation granted under the Motor Vehicles Act is a part of social beneficial scheme, hence, considering the aforesaid aspect of the matter, this Court is in agreement with the findings recorded by the Tribunal.
52. Thus, for the aforesaid reasons, the first contention of the appellants fail.
53. The other issue regarding the contributory negligence, if tested on the plea as well as the evidence led before the Tribunal, it would reveal that a feeble plea regarding contributory negligence was raised by the Insurance Company, however, no evidence in this regard was led before the Tribunal. Moreover, the owner of the offending truck namely Owais Khan, though, filed his examination-in-chief and was cross-examined. He had deposed that the Truck bearing No. HR-38 D-1220 on the said date was being driven by Sri Irshad Khan S/o Moin Khan but he did not enter into the witness box. In absence of the driver, the plea of contributory negligence as raised could not be successfully proved when there was clear evidence by an eye-witness who deposed in shape of claimant-witness no. 2 namely Ram Avtar who narrated the incident that the offending truck hit the motorcycle from behind and there was no fault of the motorcyclist and stood firm by his statement which could not be shaken in his cross-examination.
54. Thus, merely because three persons were riding the motorcycle and they were not wearing helmets in itself will not give rise to any inference that this act contributed towards the accident while there is clear evidence that the offending vehicle had hit the motorcycle from behind.
55. In order to successfully contest the plea of contributory negligence, it must be shown that the person injured or deceased must have committed an act of negligence and such act contributed to the accident directly in the chain of events resulting in the cause of the accident.
56. In the present case though the three persons were riding on a motorcycle and were without helmets they may have violated the traffic rules yet from the material available on record, it has been clearly established that the offending truck hit the motorcycle from behind. Thus, the three persons on the motorcycle in the aforesaid situation cannot be said to have contributed to the occurrence of the accident, hence, the plea raised by the learned counsel for the appellant fails.
57. The Court is fortified in its view in light of the decision of the Apex Court in the case of Mohammad Siddique and Another Vs. National Insurance Company Ltd. and Others reported in 2020 (3) SCC 572. The relevant paragraphs nos. 12 and 13 of the said report reads as under:-
"......12. But the above reason, in our view, is flawed. The fact that the deceased was riding on a motorcycle along with the driver and another, may not, by itself, without anything more, make him guilty of contributory negligence. At the most, it would make him guilty of being a party to the violation of the law. Section 128 of the Motor Vehicles Act, 1988, imposes a restriction on the driver of a two-wheeled motorcycle, not to carry more than one person on the motorcycle. Section 194-C, inserted by Amendment Act 32 of 2019, prescribes a penalty for violation of safety measures for motorcycle drivers and pillion riders. Therefore, the fact that a person was a pillion rider on a motorcycle along with the driver and one more person on the pillion, may be a violation of the law. But such violation by itself, without anything more, cannot lead to a finding of contributory negligence, unless it is established that his very act of riding along with two others, contributed either to the accident or to the impact of the accident upon the victim. There must either be a causal connection between the violation and the accident or a causal connection between the violation and the impact of the accident upon the victim. It may so happen at times, that the accident could have been averted or the injuries sustained could have been of a lesser degree, if there had been no violation of the law by the victim. What could otherwise have resulted in a simple injury, might have resulted in a grievous injury or even death due to the violation of the law by the victim. It is in such cases, where, but for the violation of the law, either the accident could have been averted or the impact could have been minimised, that the principle of contributory negligence could be invoked. It is not the case of the insurer that the accident itself occurred as a result of three persons riding on a motorcycle. It is not even the case of the insurer that the accident would have been averted, if three persons were not riding on the motorcycle. The fact that the motorcycle was hit by the car from behind, is admitted. Interestingly, the finding recorded by the Tribunal that the deceased was wearing a helmet and that the deceased was knocked down after the car hit the motorcycle from behind, are all not assailed. Therefore, the finding of the High Court that 2 persons on the pillion of the motorcycle, could have added to the imbalance, is nothing but presumptuous and is not based either upon pleading or upon the evidence on record. Nothing was extracted from PW 3 to the effect that 2 persons on the pillion added to the imbalance.
13. Therefore, in the absence of any evidence to show that the wrongful act on the part of the deceased victim contributed either to the accident or to the nature of the injuries sustained, the victim could not have been held guilty of contributory negligence. Hence, the reduction of 10% towards contributory negligence, is clearly unjustified and the same has to be set aside."
58. In light of the aforesaid, this Court is in agreement of the findings recorded by the Tribunal on the issue of contributory negligence and it cannot be said that any worthwhile evidence has been ignored.
59. For the reasons as recorded above, this Court finds that there is no error committed by the Tribunal while deciding the three claim petitions, accordingly, the aforesaid appeals are devoid of merit and are dismissed.
60. Any amount deposited before this Court shall be remitted along with the records to the Tribunal concerned to be released in favour of the claimants within two weeks.
61. All the three appeals are accordingly dismissed and in the aforesaid facts and circumstances, there shall be no order as to costs.
(Jaspreet Singh, J.) Order Date :- 19.07.2021 Asheesh/-