Madhya Pradesh High Court
United India Insurance Co. Ltd. vs Kishorilal And Ors. on 21 November, 2003
Equivalent citations: II(2004)ACC690, 2005ACJ1399
JUDGMENT S.S. Jha, J.
1. This appeal is by the insurance company challenging the award made to the respondent Nos. 1, 2 and 3.
2. Brief facts of the case are that the respondent Nos. 1 to 3 filed an application claiming compensation of Rs. 6,48,120 in the court of the Motor Accidents Claims Tribunal, Vidisha. Jeep bearing registration No. MP 04-F 1997 was owned by Mahendra Kumar, respondent No. 4 and Narendra, respondent No. 5 is the driver of the vehicle. On 26.2.1995 at about 9 in the morning jeep bearing No. MP 04-F 1997, which was being driven by Santosh Gupta respondent No. 6 in a rash and negligent manner, dashed against Bhagwan Singh, which resulted into his death. Counsel for appellant submitted that there is no proof that the accident has occurred. F.I.R. was lodged by Bhagwan Singh and he stated that he was standing near bus stand Vidisha and jeep bearing No. MP 04-F 1997 has dashed against him. The claimants are the parents and brother of the deceased.
3. Counsel for the appellant submitted that this accident is not proved. He further submitted that the compensation as determined is not proper. After recording of finding that deceased was earning Rs. 880 per month, then dependency of parents should have been determined at 1/3rd of the income of the deceased. Placing reliance upon the judgment of the Supreme Court in the case of Donat Louis Machado v. L. Ravindra, (SC), he submitted that dependency ought to have been determined at 1/3rd and multiplier ought to have been applied considering the age of the parents and not the age of the deceased. Therefore, determination of compensation is not proper.
4. The counsel for the appellant further submitted that it is an admitted position that vehicle was not driven by authorised driver of the owner. Keys of the vehicle were snatched from the driver by the respondent No. 6 Santosh Gupta and he drove the vehicle, which caused the accident. Therefore insurance company is not liable to indemnify the owner.
5. Counsel for appellant relied upon the judgment in the case of Oriental Insurance Co. Ltd. v. Sunita Rathi, (SC) and submitted that the insurer is not liable to pay the compensation. He further submitted that in case the liability of insured is upheld, then only insurance company is liable to pay the compensation. Tribunal has held that insured is not liable as there is no negligence on his part but held that Santosh Gupta and insurance company are liable to pay the compensation. After Claims Tribunal has held that owner is not liable to pay compensation, insurance company cannot be held to pay compensation. For this purpose he has referred another judgment in the case of Sitaram Motilal Kalal v. Santanuprasad Jaishankar Bhatt, 1966 ACJ 89 (SC), in which question of vicarious liability is considered. In this case the owner has entrusted the vehicle to his driver and latter gave the keys to the cleaner, therefore, it was held that owner was not liable to pay compensation. There is no vicarious liability as there is no relationship of master and servant.
6. Considering the facts of the case it is true that the vehicle was driven by the respondent No. 6, who was not engaged by the owner. Keys were snatched from the driver and the Claims Tribunal absolved the owner from his liability. Once the owner has been absolved from his liability, insurance company cannot be held liable to pay compensation. Therefore, appeal is allowed and award of Claims Tribunal is modified and it is held that the liability to pay compensation is that of respondent No. 6 Santosh Gupta and the insurance company is not liable.
Appeal succeeds and is allowed without any order as to costs.