Tripura High Court
National Insurance Company Ltd vs Smt. Namita Saha on 16 May, 2017
Author: S. Talapatra
Bench: S. Talapatra
THE HIGH COURT OF TRIPURA
AGARTALA
MAC App. 20 of 2014
National Insurance Company Ltd.,
Agartala Divisional Office, 42, Akhaura
Road, PO-Agartala, PS-West Agartala,
Sub-Division- Agartala, District-West
Tripura, PIN-799001, represented by its
Divisional Manager
............ Appellant
- Vs -
1. Smt. Namita Saha,
Wife of Late Sambhu Ch. Saha;
2. Shri Uttam Saha,
Son of Late Sambhu Ch. Saha;
Both residents of village-South Dhaleswar
(Near BOC), PO-Agartala College, P.S.
East Agartala, Sub-Division-Agartala,
District-West Tripura, PIN-799004.
3. Sri Tinku Ghosh,
Son of Late Nanda Lal Ghosh,
C/o Sherowali Tour and Travels, at present
Sherowali Sweets Shop, Laxmi Narayan
Bari Road, P.O.-Agartala, P.S. East
Agartala, Sub-Division- Agartala, District-
West Tripura. (Owner of Vehicle, bearing
registration No. AS-01-Y-7379, Bus)
...........Respondents.
MAC App. 54 of 2014
National Insurance Company Ltd.,
Agartala Divisional Office, 42, Akhaura
Road, PO-Agartala, PS-West Agartala,
Sub-Division- Agartala, District-West
Tripura, PIN-799001, represented by its
Divisional Manager
............ Appellant
MAC Appeal No. 20/2014, MAC Appeal No. 54/2014
MAC Appeal No. 48/2014, MAC Appeal No. 49/2014 Page 1 of 9
- Vs -
1. Smt. Prajitha K.G.,
Wife of Late Jaya Kumar PK;
2. Shri Arjun J Pillai,
Son of Late Jaya Kumar PK;
3. Smt. Devi Priya,
Daughter of Late Jaya Kumar PK;
4. Smt. Kunji Kuttyamma, daughter of
Kunjiraman Pillai;
All residents of village & PO - Kulanada,
P.S.-Pandalam,District-Pathnamthitta,
Kerala, PIN-689503.
5. Sri Tinku Ghosh,
Son of Late Nanda Lal Ghosh,
C/o Sherowali Tour and Travels, at present
Sherowali Sweets Shop, Laxmi Narayan
Bari Road, P.O.-Agartala, P.S. East
Agartala, Sub-Division- Agartala, District-
West Tripura. (Owner of Vehicle, bearing
registration No. AS-01-Y-7379, Bus)
...........Respondents.
MAC App. 48 of 2014 [
National Insurance Company Ltd.,
Agartala Divisional Office, 42, Akhaura
Road, PO-Agartala, PS-West Agartala,
Sub-Division - Agartala, District-West
Tripura, PIN-799001, represented by its
Divisional Manager
............ Appellant
- Vs -
1. Sri Rupak Majumdar,
Son of Sri Nripendra Majumdar, resident of
Village-Taraninagar, PO&PS-Kumarghat,
District-Unokoti;
2. Shri Nibash Chandra Ghosh,
Son of Naresh Chandra Ghosh,
resident of Bridhyangar,
P.O. & P.S. - Ranirbazar, Agartala, West
Tripura, (Driver of vehicle bearing
registration No. AS-01-Y-7379)
MAC Appeal No. 20/2014, MAC Appeal No. 54/2014
MAC Appeal No. 48/2014, MAC Appeal No. 49/2014 Page 2 of 9
3. Sri Tinku Ghosh,
Son of Late Nanda Lal Ghosh,
C/o Sherowali Tour and Travels, at present
Sherowali Sweets Shop, Laxmi Narayan
Bari Road, P.O.-Agartala, P.S. East
Agartala, Sub-Division- Agartala, District-
West Tripura. (Owner of Vehicle, bearing
registration No. AS-01-Y-7379, Bus)
...........Respondents.
MAC App. 49 of 2014
[
[
National Insurance Company Ltd.,
Agartala Divisional Office, 42, Akhaura
Road, PO-Agartala, PS-West Agartala,
Sub-Division - Agartala, District-West
Tripura, PIN-799001, represented by its
Divisional Manager
............ Appellant
- Vs -
1. Smt. Nanibala Debnath,
Wife of Late Sunil Debnath,
2. Smt. Manika Saha (Debnath)
Wife of Late Uttam Debnath;
3. Miss Priyanka Debnath,
Daughter of Late Uttam Debnath;
4. Sri Deep Debnath,
Son of Late Uttam Debnath
All residents of village - Uttar Ramnagar,
Gandhigram, P.O.-Narsingarh, P.S. Airport,
Sub-Division-Agartala, District-West Tripura.
5. Sri Tinku Ghosh,
Son of Late Nanda Lal Ghosh,
C/o Sherowali Tour and Travels, at present
Sherowali Sweets Shop, Laxmi Narayan
Bari Road, P.O.-Agartala, P.S. East
Agartala, Sub-Division- Agartala, District-
West Tripura. (Owner of Vehicle, bearing
registration No. AS-01-Y-7379, Bus)
...........Respondents
MAC Appeal No. 20/2014, MAC Appeal No. 54/2014
MAC Appeal No. 48/2014, MAC Appeal No. 49/2014 Page 3 of 9
BEFORE
THE HON'BLE MR. JUSTICE S. TALAPATRA
IN ALL THE CASES
For the appellant : Mr. S Lodh, Advocate
For the owner - respondent : Mr. R Dutta, Advocate
For the claimant-respondents : Mr. B Debnath, Advocate
Date of hearing and
delivery of Judgment
& order : 16.05.2017.
Whether fit for reporting : No.
JUDGMENT AND ORDER (ORAL)
Heard Mr. S Lodh, learned counsel for the appellant as well as Mr. R Dutta, learned counsel for the owner-respondent.
2. All these appeals being MAC Appeal No.20/2014 (National Insurance Co. Ltd. Vs. Namita Saha & Ors.), MAC Appeal No.54/2014 (National Insurance Co. Ltd. Vs. Prajitha KG & Ors.), MAC Appeal No.48/2014 (National Insurance Co. Ltd. Vs. Rupak Majumder & Ors.) and MAC Appeal No.49/2014 (National Insurance Co. Ltd. Vs. Nani Bala Debnath & Ors.) are consolidated for purpose of disposal by a common judgment inasmuch as Mr. Lodh and Mr. Dutta, learned counsel appearing respectively for the appellant and the owner-respondent have submitted that in all these appeals a common question of law wades in respect of the liability of the appellant in making the payment of the compensation. Where several claim cases are filed liability may be segregated. It is the admitted position that the vehicle bearing No. AS- 01-Y-7379 met the accident on 08.08.2012 at Tongsen on NH 44 under Khlieriat Police Station under East Jayatia Hills, Meghalaya. As a result, 28 passengers died on the spot and 27 passengers including the Driver sustained grievous injuries.
MAC Appeal No. 20/2014, MAC Appeal No. 54/2014 MAC Appeal No. 48/2014, MAC Appeal No. 49/2014 Page 4 of 9
3. Mr. Lodh, learned counsel appearing for the appellant has raised the solitary objection in this appeal that in a clear breach of condition of the route permit the offending vehicle carried more passengers than what is permitted by the said route permit, i.e. 38+1 (passengers+Driver). Hence, the Insurance Company cannot be held liable to make payment of the award in view of the provision of Section 149(2) of the Motor Vehicles Act, 1988. No other ground has been agitated by Mr. Lodh.
4. Mr. R Dutta, learned counsel appearing for the owner- respondent has submitted that the statistical basis of death and injury is from the first information report and that cannot be relied upon by the tribunal for the purpose of giving the compensation. Mr. Dutta has further denied that the said vehicle was carrying excessive passengers beyond the permit.
5. At the outset it is to be stated that learned counsel for the parties could not provide the detailed data of all the claim case where the dependent of the deceased or the injured have claimed for the compensation. It appears that the appellant has placed prima facial reliance on the first information report as the appellant is apprehensive that there are possibilities of filing of more claims by passengers who suffered injury or by dependants of the deceased. In view of that, in every individual case, the insurance company shall be made liable for payment and in that course, they may have to pay more than what they are liable to pay under the policy.
6. Mr. Lodh, learned counsel for the appellant has further submitted that the vehicle was covered by a valid insurance policy MAC Appeal No. 20/2014, MAC Appeal No. 54/2014 MAC Appeal No. 48/2014, MAC Appeal No. 49/2014 Page 5 of 9 under No.203000/31/11/6300010367 and that was valid from 17.02.2012 to midnight of 16.02.2013. He has submitted that since the vehicle has met the accident within the period of insurance, in the ordinary course the insurance company has to indemnify the owner respondent in respect of damages, but when there is a clear breach of the route permit covered under Section 149(2) of the Motor Vehicles Act, 1988, the Insurance Company cannot be held liable for that.
7. Mr. Dutta, learned counsel has further submitted that if any liability accrues from the said accident, the insurance company shall be liable for making payment for cost of damages that would be ascertained by the Tribunal to the extent of coverage as laid down in the insurance policy.
8. The issue therefore falls within a short compass that whether the appellant as the insurer will be liable for making payment of the compensation in all the claim cases from the said accident that may be decided by the Tribunal and if not, to what extent?
9. Mr. Lodh, learned counsel has referred a decision of the apex court in National Insurance Co. Ltd. Vs. Anjana Shyam and Ors., reported in 2007 AIR SCW 5237 where the apex court has enunciated the law to resolve this small but a complex issue in the following manner:
"16.Then arises the question, how to determine the compensation payable or how to quantify the compensation since there is no means of ascertaining who out of the overloaded passengers constitute the passengers covered by the insurance policy as permitted to be carried by the permit itself? As this Court has indicated, the purpose of the Act is to bring benefit to the third parties who are either injured or dead in an accident. It serves a social purpose. Keeping that in mind, we think that the practical and proper course would be to hold that the insurance company, in such a case, would be bound to cover the higher of the various awards and will be MAC Appeal No. 20/2014, MAC Appeal No. 54/2014 MAC Appeal No. 48/2014, MAC Appeal No. 49/2014 Page 6 of 9 compelled to deposit the higher of the amounts of compensation awarded to the extent of the number of passengers covered by the insurance policy. Illustratively, we may put it like this. In the case on hand, 42 passengers were the permitted passengers and they are the ones who have been insured by the insurance company. 90 persons have either died or got injured in the accident. Awards have been passed for varied sums. The Tribunal should take into account, the higher of the 42 awards made, add them up and direct the insurance company to deposit that lump sum. Thus, the liability of the insurance company would be to pay the compensation awarded to 42 out of the 90 passengers. It is to ensure that the maximum benefit is derived by the insurance taken for the passengers of the vehicle, that we hold that the 42 awards to be satisfied by the insurance company would be the 42 awards in the descending order starting from the highest of the awards. In other words, the higher of the 42 awards will be taken into account and it would be the sum total of those higher 42 awards that would be the amount that the insurance company would be liable to deposit. It will be for the Tribunal thereafter to direct distribution of the money so deposited by the insurance company proportionately to all the claimants, here all the 90, and leave all the claimants to recover the balance from the owner of the vehicle. In such cases, it will be necessary for the Tribunal, even at the initial stage, to make appropriate orders to ensure that the amount could be recovered from the owner by ordering attachment or by passing other restrictive orders against the owner so as to ensure the satisfaction in full of the awards that may be passed ultimately."
10. Mr. Lodh, learned counsel has further relied on the decision of the apex court in Sunil Sharma and Ors., Vs. Bachitar Singh, reported in 2011 AIR SCW 2811 which is in the same line.
11. Mr. Dutta, learned counsel has referred also a decision of the Gauhati High Court in National Insurance Co. Ltd. Vs Samina Begum and Ors., reported in 2013 3 GLR 349 where it has been held as under:
"13. On aggregate consideration of the materials as available in the records and as scrutinized by this court as well as on appreciation of the contentions by the counsel of the parties, this court has no hesitation to hold that the appellant shall pay the awarded sum to the claimant-respondent forthwith on deducting the sum, if any, that has been paid by this time.
It is further held that after adjudication of the claim petitions as referred in Ext.C and D document, if it is found that the claims of the passengers are more than 34, then the insurance company would be at MAC Appeal No. 20/2014, MAC Appeal No. 54/2014 MAC Appeal No. 48/2014, MAC Appeal No. 49/2014 Page 7 of 9 liberty to recover the rateable proportion as per the clause as extracted by the India Motor Tariff from the insured, the owner of the vehicle under Section 174 of the Motor Vehicles Act and for that purpose the appellant shall furnish copies of the judgment and award before the Tribunal for due examination. It is made clear that the award has to be satisfied by the appellant in all the cases initially and only thereafter they would be at liberty to realize the rateable proportion if it is found that the passengers who fell victim to the said accident were more than 34 (thirty four)."
12. Mr. B Debnath, learned counsel for the claimant- respondents in MAC Appeal 54/2014 has submitted that the appellant insurer cannot avoid the initial burden of paying the compensation to the claimants. He relied on a decision of the Apex Court in United India Insurance Co. Ltd. Vs. K.M. Poonam & Ors., reported in 2011 AIR SCW 2802 where it has been observed as under:-
"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 travelling 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."
13. Having considered the rival contentions as raised by the learned counsel for the parties, this Court is of the view that the MAC Appeal No. 20/2014, MAC Appeal No. 54/2014 MAC Appeal No. 48/2014, MAC Appeal No. 49/2014 Page 8 of 9 fundamental liability of the insurance company is limited to the highest award delivered in the first 39 awards, meaning the first 39 higher awards. It will be further liability of the appellant-insurer to make payment against those claims. If the awards crossed 39, the initial liability would be of the insurance company to pay the same but at the same time they will be entitled to recover the said amount from the owner- respondent by a certificate proceeding under Section 174 of the Motor Vehicles Act without instituting any suit for that purpose.
14. In MAC Appeal No. 20/2014 in the impugned judgment, the registration number of the offending vehicle has been incorrectly referred. The registration number of the offending vehicle stands corrected as AS-01-Y-7379 (Bus).
15. That apart, Mr. Lodh has urged that in the same appeal some penal interest @ 9% has been awarded. This Court has recorded its finding that such award of penal interest is not permissible or within the authority of the provisions of Section 171 of the MV Act. As such that part of award stands interfered with and is set aside.
16. Mr. Lodh, learned counsel for the appellant has submitted that awarded sum has already been paid by the appellant-Insurance Company. The claimant respondents shall be entitled to draw the compensation or the part thereof in terms of the direction issued by the tribunal.
17. In terms of the above, all the appeals are disposed of. Transmit the LCRs forthwith.
JUDGE lodh MAC Appeal No. 20/2014, MAC Appeal No. 54/2014 MAC Appeal No. 48/2014, MAC Appeal No. 49/2014 Page 9 of 9