Bombay High Court
Vishakha Wd/O. Santosh Aghame And ... vs Shubhan Khan Munil Khan Pathan And ... on 16 April, 2016
Author: A.S. Chandurkar
Bench: A.S. Chandurkar
fa712.15.odt 1/9
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
FIRST APPEAL NO.712 OF 2015
APPELLANTS: 1. Vishakha wd/o Santosh Aghame, Age
32 years, Occu. Household,
(On R.A.)
(Ori. Petitioners)
2. Ku. Nikita Santosh Aghame, Age 12
yrs., Occu: Education,
3. Ku. Snehal Santosh Aghame, Age 14
yrs, Occu: Education,
ig Nos.2 & 3 being minors through
natural guardian mother, appellant
No.1, R/o Waruda, Tq. Tiwasa,
District Amravati.
4. Ramrao Vithobaji Aghame, Age 68
yrs, Occu: Nil,
5. Sau. Sundarbai Ramrao Aghame, Age
64 yrs, Occu. Nil,
Petitioner Nos.4 & 5 R/o Hiwarkhed,
Tq. Karanja.
-VERSUS-
RESPONDENTS: 1. Shubhan Khan Munil Khan Pathan,
Age adult, Occupation: Driver, R/o
(On R.A.)
Dhanaj, Tq. Karanja Lad, Distt.
(Ori. Respondents) Washim.
2. Ibad Khan Bismilla Khan, Age -
Major, Occupation: Owner, R/o Takli
Loni, Tq. Nandgaon Kh. Distt.
Amravati.
3. Bajaj Allianz Incurance Co. Ltd.,
Through its Divisional Manager, 3rd
floor Shriram Tower, Near NIT
Building Sadar, Mohan Nagar,
Nagpur.
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Shri S. S. Alaspurkar, Advocate for the appellants.
Shri S. S. Patil, Advocate for respondent Nos.1 & 2.
Shri D. N. Kukday, Advocate for the respondent No.3.
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CORAM: A.S. CHANDURKAR, J.
DATED: 16
th APRIL, 2016.
ORAL JUDGMENT :
1. In view of notice for final disposal issued on 4-1-2016, the appeal is heard finally with the consent of the learned Counsel for the parties.
2. The present appeal filed under Section 173 of the Motor Vehicles Act, 1988 (for short, the said Act) is by the original claimants who are seeking a direction against the respondent No.3 - Insurer to be made jointly and severally liable alongwith the respondent Nos.1 and 2, the driver and owner of the offending vehicle.
3. One Santosh who was the husband of the appellant No.1 and the father of the appellant Nos.2 & 3 died as a result of the motor accident on 7-5-2009. This accident occurred when said Santosh while riding his motor cycle was dashed by a truck which was driven by the respondent No.1 and was insured with the respondent N.3. On that basis, a claim for compensation came to be filed by the appellants under Section 166 of the said Act.
4. The respondent No.1 filed his written statement and took the stand that the vehicle in question was purchased by him from the ::: Uploaded on - 19/05/2016 ::: Downloaded on - 29/07/2016 22:33:43 ::: fa712.15.odt 3/9 respondent No.2, but it was not transferred in his name. The vehicle was insured with the respondent No.3. It was denied that the respondent No.1 was rash and negligent while driving the truck. The respondent No.3 also opposed the claim by filing its written statement.
It took the stand that the respondent No.1 was not having a valid driving license and therefore there was breach of the terms and conditions of the policy. The Claims Tribunal by the impugned judgment allowed the claim and granted sum of Rs.17,61,000/- as compensation with 8% interest. The claim against the Insurance Company was dismissed on the ground that though the vehicle was insured by the respondent No.2, it was sold to the respondent No.1 just prior to the accident. Being aggrieved the present appeal has been filed.
5. Shri S. S. Alaspurkar, learned Counsel for the appellants submitted that the deceased was a third party and it was the duty of the respondent No.3 to satisfy the statutory liability of satisfying the claim under Section 149 of the said Act. He submitted that the respondent No.3 could not have been absolved of his liability and at the most, even if the respondent No.3 was to be absolved, a direction to first pay the amount of compensation and then recover it from the insurer could have been made. In support of his submissions, the learned Counsel relied upon the following decisions:
(1) Manager, National Insurance Co. Ltd. v. Saju P. Paul and Anr. AIR 2013 SC 1064.
(2) Oriental Insurance Co. Ltd. Vs. Zaharulnisha & Ors 2008 (4) ALL MR 413.::: Uploaded on - 19/05/2016 ::: Downloaded on - 29/07/2016 22:33:43 ::: fa712.15.odt 4/9
(3) National Insurance Co. Ltd. v. Swaran Singh and others AIR 2004 SC 1531.
(4) United India Insurance Co. Ltd. v. Sindhubai Kondiram Darwante Ors. 2010(3) Mh.L.J.886.
(5) Chandeswar Chaudhary & Ors. v. Vaij Nath Chaudhary & Ors I (2013) ACC 312.
(6) Bajaj Allianz General Insurance Co. Ltd. v. Sangita and others 2015 ACJ 1508.
6. Shri D. N. Kukday, the learned Counsel appearing for the respondent No.3 supported the impugned judgment. He submitted that the present was a case where the vehicle was driven by the respondent No.1 who was not holding a valid license and thus there was breach of the terms of the policy of Insurance. According to him, the breach of the policy was fundamental in nature and the Insurance Company was not liable to satisfy the claim. The Insurance Company had therefore been rightly absolved of its liability. He relied upon the decisions in National Insurance Company Ltd. Vs. Kaushalya Devi and others 2009(1) Mh.L.J. 561, United India Insurance Co. Ltd. Vs. Rakesh Kumar Arora & Ors.
2008(13) SCALE 35, United India Insurance Company Ltd. Vs. Sujata Arora and Ors. 2013 ACJ 2129 and The Manager, Bajaj Allianz General Insurance Company Vs. Mangala Shantaram Shevale and Ors. 2012 (114) BLR 377. Without prejudice to aforesaid submissions, it was urged that in case a direction is issued for paying the amount of compensation, the same should be issued in terms of the law laid down by the Hon'ble Supreme Court in National Insurance Co. Ltd. Vs. Challa Bharthamma and others (2004) 8 SCC 517 and Pramod Kumar Agrawal and ors Vs. ::: Uploaded on - 19/05/2016 ::: Downloaded on - 29/07/2016 22:33:43 ::: fa712.15.odt 5/9 Mushtari Begum and ors. (2005) III ACC 357.
Shri S. S. Patil, learned Counsel appeared for the respondent Nos.1 & 2.
7. With the assistance of the learned Counsel for the parties, I have perused the records of the case and I have also gone through the impugned judgment.
8. The following point arises for consideration:
Whether the respondent No.3 should be directed to pay the amount of compensation and thereafter recover the same from the respondent Nos.1 & 2 in the facts of the present case?
9. The quantum of compensation granted is not sought to be enhanced by the appellants. The only challenge to the impugned judgment is with regard to exoneration of the Insurance Company from the liability to satisfy the claim for compensation.
The evidence on record indicates that the respondent no. 2 was the owner of the truck bearing No. MH-04/5472. The vehicle was duly insured with the respondent no.3 as per the policy at Ex. 67. This policy was in force when the accident took place on 07.05.2009. It can be further seen that the said truck was being driven by the respondent no.1 who claimed to have purchased the same from the respondent no.
2. The licence of respondent no. 1 at Ex. 63 indicates that same has been issued on 17.06.2009 and the respondent no.1 was entitled to drive a light motor vehicle-non transport car from 17.06.2009 onwards. The police papers at Ex. 73 indicate that passengers of a marriage party were ::: Uploaded on - 19/05/2016 ::: Downloaded on - 29/07/2016 22:33:43 ::: fa712.15.odt 6/9 being carried when the accident took place.
From the aforesaid, it is clear that when the accident took place the offending truck was being driven by the respondent no.1 and that he was not holding a valid driving licence. The respondent no. 3 has proved this fact by leading evidence of the Clerk from the Regional Transport Office at Ex. 62. Similarly, the breach of policy of the goods vehicle by carrying passengers has also been proved as per the papers at Ex. 73. Hence, the finding recorded by the Claims Tribunal that the Insurance Company was liable to be exonerated cannot be faulted.
10.ig In the aforesaid facts it is necessary to consider as to whether the Insurance Company even when it is exonerated from its liability can be directed to first pay the amount of compensation and then recover the same from the respondent nos. 1 and 2.
In Saju T. Paul (supra) after noticing the fact that the question as to whether in absence of any liability, the Insurance Company could be directed to pay the amount of compensation and then recover the same was referred to a larger Bench, it was observed that pendency of such reference would not mean that such directions could not be issued in the facts of a particular case. In Zaharulnisha (supra) it was observed that when a third party is involved in an accident and the driver was not having a valid driving licence, the Insurance Company could be directed to satisfy the award at the first instance and then recover the same. The liability of the Insurance Company in so far as a third party is concerned was a statutory liability. Even in Swarnsingh ::: Uploaded on - 19/05/2016 ::: Downloaded on - 29/07/2016 22:33:43 ::: fa712.15.odt 7/9 (supra) it was observed in para 105(x) that even if the Insurance Company proves its defence, the Claims Tribunal can direct the Insurance Company to avail the option of reimbursement after it satisfies the liability towards the third party. The learned Single Judge in Sindhubai Darwante (supra) after considering various judgments of the Hon'ble Supreme Court observed that there was a power vesting in the Claims Tribunal as well as the High Court to direct the insurer to pay compensation and thereafter recover the same from the insured. In Chandeswar Choudhary (supra) a learned Single Judge of the Delhi High Court has followed the course of issuing directions to first pay and then recover the amount of compensation.
11. Thus from the aforesaid, it is clear that even if the Insurance Company succeeds in proving the breach of policy conditions, in so far as a third party risk is concerned its liability being of a statutory nature, it can be directed to first pay the amount of compensation and then recover the same. The decisions relied upon by the learned counsel for the respondent no.3 in Kaushlyadevi (supra) and Rakesh Kumar Arora (supra) are distinguishable on facts. In Kaushalyadevi (supra) the deceased was travelling in a truck not as the owner of any goods but was travelling for a purpose other than the one for which he was entitled to travel in a public goods vehicle. Similarly, in Rakesh Kumar Arora (supra) it was found that the vehicle in question was being driven by a minor and on that ground the Insurance Company stood exonerated.
The question whether a direction to pay and recover could be issued did ::: Uploaded on - 19/05/2016 ::: Downloaded on - 29/07/2016 22:33:43 ::: fa712.15.odt 8/9 not fall for consideration in aforesaid decisions as well as the decision in Sujata Arora (supra). In Mangala Shewale (supra) the discretion of directing the insurer to pay and recover was not exercised considering the facts of that case even though it was observed that there was a power vesting with the Court to issue such directions.
12. The facts of the present case indicate that the deceased was a third party who was dashed by the truck insured with the respondent no.3. The liability of the respondent no.3 towards a third party being statutory in nature, the appellants cannot be driven to seek execution of the award against respondent nos. 1 and 2. The facts of the present case are such that directions could be issued to the Insurance Company to first pay the amount of compensation as determined and thereafter recover a sum from the respondent nos. 1 and 2 by following the course as prescribed in Bharathamma (supra). The point as framed is answered by holding that the respondent no.3 can be directed to first pay the amount of compensation and then recover the same from the respondent nos. 1 and 2.
13. In view of aforesaid, the following order is passed:
(1) The judgment in M.A.C.P. Case No.213/2009 dated 7-4-
2015 is partly modified. It is held that the respondent Nos.1 to 3 would be jointly and severally liable to pay amount of compensation.
The respondent No.3 shall satisfy the award and it would have a liberty to recover the amount paid by it by following the course as prescribed in para 13 of the judgment in National Insurance Co. Ltd. Vs. Challa ::: Uploaded on - 19/05/2016 ::: Downloaded on - 29/07/2016 22:33:43 ::: fa712.15.odt 9/9 Bharathamma (2004) 8 SCC 517. These directions shall form part of the award and the same shall be modified accordingly.
(2) The first appeal is allowed in aforesaid terms with no order as to costs.
JUDGE //MULEY// ::: Uploaded on - 19/05/2016 ::: Downloaded on - 29/07/2016 22:33:43 :::