Punjab-Haryana High Court
Bajaj Allianz General Insurance ... vs Parkashi Devi And Ors on 10 September, 2014
Author: Naresh Kumar Sanghi
Bench: Naresh Kumar Sanghi
FAO-878-2014 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
FAO-878-2014 (O&M)
Date of Decision: September 10, 2014
Bajaj Allianz General Insurance Company Limited
.....Appellant
v.
Smt.Parkashi Devi and others
......Respondents
CORAM: HON'BLE MR.JUSTICE NARESH KUMAR SANGHI
Present: Mr.Ashwani Talwar, Advocate
for the appellant.
.....
NARESH KUMAR SANGHI, J.(ORAL)
The present appeal has been filed by Bajaj Allianz General Insurance Company Limited challenging the Award, dated 04.10.2013, passed by the learned Motor Accident Claims Tribunal, Narnaul, granting compensation of `1,98,200/- along with interest @ 7.5% per annum from the date of petition till payment in favour of the claimants.
Mr.Ashwani Talwar, Advocate, learned counsel for the appellant-Insurance Company has raised the following contentions:-
(i) death of Surender @ Satender had not MEENU 2014.09.20 14:26 I attest to the accuracy and authenticity of this document chandigarh FAO-878-2014 (O&M) -2-
occurred in a motor vehicular accident, therefore, the appellant-Insurance Company cannot be held liable to satisfy the Award.
(ii) Driver of the offending vehicle, i.e. Surender @ Satender was not possessing the valid and effective driving licence on the date of his (Surender @ Satender) death, therefore, by virtue of Section 149(2) of the Motor Vehicles Act, the appellant-Insurance Company cannot be saddled with the liability to satisfy the Award.
To deal with the arguments raised by the learned counsel for the appellant, the relevant facts of the case are essential to be discussed for disposal of present appeal.
As per case of the claimants, Surender @ Satender (since deceased) was employed as Driver on vehicle No.HR- 55B-4965, which was owned by M/s J.S.P.Service Private Limited. Surender @ Satender (since deceased) after loading the pipes, which were to be used in fridges, in his vehicle was coming from Indore for delivery at Gurgaon and Faridabad. On the way, on 17.05.2008, two unknown persons boarded the vehicle being driven by Surender @ Satender. When the MEENU 2014.09.20 14:26 I attest to the accuracy and authenticity of this document chandigarh FAO-878-2014 (O&M) -3- vehicle bearing No.HR-55B-4965 being driven by Surender @ Satender reached Kotputli-Narnaul road within the revenue estate of Village Nangal Soda, the said two unknown persons killed Surender @ Satender (since deceased) and looted the vehicle being driven by him (Surender @ Satender). The matter was reported to the police on the basis of which, FIR No.38, dated 17.05.2008, for the offences punishable under Sections 201, 302 and 392, IPC, was registered at Police Station, Nangal Chaudhary, District Mahendergarh. During investigation, it was revealed that Shamsher Singh and Krishan, respondent Nos.3 and 4, respectively, had committed murder of Surender @ Satender by strangulation and had thrown the dead body in ditches nearby the road and looted away the vehicle.
Smt.Parkashi Devi and Ramphal, the parents of Surender @ Satender, filed claim petition claiming `30,00,000/- as compensation since death of Surender @ Satender was caused during the course of use of the motor vehicle. The claimants averred that Surender @ Satender (since deceased) was 26 years old and getting a salary of `3,300/- per month. Claimants were wholly dependent on the earnings of their son Surender @ Satender (since deceased). MEENU 2014.09.20 14:26 I attest to the accuracy and authenticity of this document chandigarh
FAO-878-2014 (O&M) -4- It is apposite to mention here that after issuance of the notice to the respondents, the registered owner of the offending vehicle was proceeded against ex parte and the name of the Insurance Company could not be brought on record. Shamsher Singh and Krishan, respondent Nos.3 and 4, respectively, who had caused the death of Surender @ Satender contested the claim petition. Vide order dated 28.02.2011, the learned Motor Accident Claims Tribunal, Narnaul (for brevity the 'Tribunal') partly allowed the petition of the claimants and M/s J.S.P.Service Private Limited (registered owner of vehicle No.HR-55B-4965) was held liable for satisfying the award.
As soon as the registered owner of the offending vehicle came to know about the ex parte award, dated 28.02.2011, passed by the learned Tribunal, Miscellaneous Application under Order 9 Rule 13, CPC, for setting aside the ex parte award was presented and the same was not opposed by the claimants, therefore, vide order, dated 12.02.2013, the said application was allowed and the ex parte award, dated 28.02.2011, was set aside subject to payment of `3,000/- as costs. Thereafter the registered owner of the offending vehicle filed written statement and MEENU 2014.09.20 14:26 I attest to the accuracy and authenticity of this document chandigarh FAO-878-2014 (O&M) -5- also disclosed the particulars of the Insurance Company (appellant). On the application moved by the claimants, the appellant-Insurance Company was arrayed as respondent No.2 and it filed written statement also.
The registered owner of the offending vehicle averred in his reply that no accident was caused with the vehicle in question and, as such, the claimants were not entitled to any compensation. In the alternative, it was pleaded that the liability, if any, was on the appellant- Insurance Company since the vehicle was insured with the appellant.
Appellant-Insurance company also contested the claim petition by filing a separate written statement alleging that the claim petition did not disclose any cause of action; the claim petition was bad for misjoinder and non-joinder of the parties; the claimants had no locus standi to file the claim petition against the appellant; the terms and conditions of the insurance policy were not adhered to by the driver since he was not possessing the valid driving licence at the time of alleged incident and that the claim petition was filed in collusion with the remaining respondents.
Respondent Nos.3 and 4, i.e., the persons who had MEENU 2014.09.20 14:26 I attest to the accuracy and authenticity of this document chandigarh FAO-878-2014 (O&M) -6- caused the death of Surender @ Satender, also contested the claim petition by filing their joint written statement pleading therein that no incident, as alleged in the claim petition, had taken place and in collusion with the police, a false case was registered against them. It was also denied that they had ever taken lift in the vehicle being driven by Surender @ Satender. In addition, they pleaded that if compensation was awarded to the claimants then the registered owner and insurer of the said vehicle would be liable to satisfy the same.
The claimants filed rejoinder to the written statement of respondent Nos.3 and 4 reiterating the facts pleaded in the petition.
On the basis of the pleadings, the following issues were framed on 01.07.2013:-
1. Whether the deceased Surender @ Satender succumbed to the injuries arising out of the use of motor vehicle (canter) No.HR-55B-4965 as alleged in the petition? OPP
2. Whether the claimants are entitled to get the amount of compensation, if so, what amount and from whom? OPP
3. Whether the petition is bad for mis-joinder MEENU 2014.09.20 14:26 I attest to the accuracy and authenticity of this document chandigarh FAO-878-2014 (O&M) -7-
and non-joinder of necessary parties?OPR
4. Whether the claim petition is not maintainable in the present form? OPR
5. Whether there has been violation of terms and conditions of insurance policy, if so to what effect? OPR-2.
6. Relief.
In order to prove the incident of death of Surender @ Satender, claimant-respondent No.2, Ramphal (PW1) inter alia deposed that Surender @ Satender was employed as a driver on the offending vehicle No.HR-55B-4965, which was owned by M/s J.S.P. Services Private Limited. After loading the pipes, which were to be used in fridges, he was coming from Indore for delivery of the same at Gurgaon and Faridabad. On the way, respondent Nos.3 and 4 took lift and sat in the vehicle driven by Surender @ Satender. On 17.05.2008, when the vehicle being driven by Surender @ Satender reached Narnaul-Kotputli road within the revenue estate of village Nangal Soda, respondent Nos.3 and 4 strangulated Surender @ Satender, caused his death and looted away the vehicle. The matter was reported to the police on the basis of which, FIR No.38, dated 17.05.2008, MEENU 2014.09.20 14:26 I attest to the accuracy and authenticity of this document chandigarh FAO-878-2014 (O&M) -8- was registered at Police Station, Nangal Chaudhary, District Mahendergarh, for the offences punishable under Sections 201, 302 and 392, IPC. During investigation, respondent Nos.3 and 4 were arrested and after investigation the police filed the charge sheet for their prosecution for causing death of Surender @ Satender.
The claimants examined Hari Kishan as PW2, who proved the FIR (Ex.PW2/B), since the same was registered on his statement. Inspector Dilbag Singh appeared as PW3 and deposed that in the month of May 2008, when he was posted as Station House Officer of Police Station, Nangal Chaudhary, he received an information that a dead body was lying in the ditches within the revenue estate of village Nangal Soda; FIR (Ex.PW2/B) was registered; inquest proceedings were carried out; autopsy on the corpus of Surender @ Satender was got conducted and on receiving the information from CIA staff, Jind, he reached there on 20.05.2008 and joined Shamsher and Kishan in the investigation of the present case and formally arrested them. They suffered their disclosure statements and in pursuance thereof recovered a stepney and they also demarcated the place where the dead body was thrown by them. He did depose that he had prepared MEENU 2014.09.20 14:26 I attest to the accuracy and authenticity of this document chandigarh FAO-878-2014 (O&M) -9- the report, under Section 173, Cr.P.C., Ex.P1, for prosecution of respondent Nos.3 and 4. The claimants produced various documents, as enshrined in para No.13 of the impugned award, to prove the death of Surender @ Satender during the course of use of motor vehicle at the hands of respondent Nos.3 and 4.
While taking into consideration the oral evidence and the documents produced by the claimants and repelling the argument of the appellant-Insurance Company that the death of Surender @ Satender occurred due to murder caused by respondent Nos.3 and 4 and not due to the use of the motor vehicle, hence, the Insurance Company was not liable to pay the compensation, learned Tribunal decided issue No.1 in favour of the claimants holding that the death of Surender @ Satender had occurred during the course of use of the motor vehicle and, as such, the claim petition by the parents of the deceased was maintainable.
Issue Nos.2 and 5, being inter-connected, were discussed in para Nos.23 to 28 and it was held that the claimants were entitled to an amount of `1,82,200/-.
Since the claim petition was filed under Section 163-A, therefore, the learned Tribunal held that the claimants MEENU 2014.09.20 14:26 I attest to the accuracy and authenticity of this document chandigarh FAO-878-2014 (O&M) -10- were successful in bringing home that the death of Surender @ Satender had occurred on account of an incident arising out of use of a motor vehicle and the claimants were entitled to receive compensation from the owner and the Insurance Company of vehicle bearing No.HR-55B-4965.
Issue Nos.3 and 4 were also decided against the respondents and in favour of the claimants.
The first argument of the learned counsel for the appellant that respondent Nos.3 and 4 had committed the murder of Surender @ Satender, therefore, his death had not occurred on account of the motor vehicular accident and, as such, the appellant-Insurance Company cannot be held liable to pay the compensation is not sustainable in view of the pronouncement in the matter of Smt.Rita Devi vs. New India Assurance Company Limited, 2000(3) RCR (Civil) 200, wherein Hon'ble the Supreme Court held as under:-
"12. Applying the principles laid down in the above cases to the facts of the case in hand, we find that the deceased, a driver of the auto rickshaw, was duty bound to have accepted the demand of fare paying passengers to transport them to the place of their destination. During the MEENU 2014.09.20 14:26 I attest to the accuracy and authenticity of this document chandigarh FAO-878-2014 (O&M) -11- course of this duty, if the passengers had decided to commit an act of felony of stealing the auto rickshaw and in the course of achieving the said object of stealing the auto rickshaw, they had to eliminate the driver of the auto rickshaw then it cannot be said that the death so caused to the driver of the auto rickshaw was an accidental murder. The stealing of the auto rickshaw was the object of the felony and the murder that was caused in the said process of stealing the auto rickshaw is only incidental to the act of stealing of the auto rickshaw. Therefore, it has to be said that on the facts and circumstances of this case the death of the deceased (Dasarath Singh) was caused accidentally in the process of committing the theft of the auto rickshaw."
In the matter of Oriental Insurance Company Limited vs. Phulo Devi and others, 2012(1) RCR (Civil) 660, Hon'ble the Delhi High Court in a similar set of facts as of the case in hand held that where murder of driver was committed with a motive to commit robbery while he was driving the truck, the same could be termed as death during the course MEENU 2014.09.20 14:26 I attest to the accuracy and authenticity of this document chandigarh FAO-878-2014 (O&M) -12- of use of the Motor vehicle and hence, Insurance company was liable to pay the compensation. It was further held that the claim petition was maintainable before the Motor Accident Claims Tribunal.
In the matter of National Insurance Company vs. Gitaben Saitansinh Rajput and others, 2009(3) RCR (Civil) 504, Hon'ble the Gujarat High Court held that a truck driver, who was murdered by some unknown persons in the course of his employment when he was sitting on the driver seat, the said death was accidental murder by use of motor vehicle and, as such, in a claim petition filed under Section 163-A, the Insurance Company of the said Motor Vehicle would be liable to pay the compensation.
Claim petition based on accidental murder by use of motor vehicle was also dealt with by a Division Bench of Hon'ble Madhya Pradesh High Court in the matter of Khairunisha and others vs. Subhash @ Punjabi and others, 2008(2) MPHT 259: Law Finder Doc Id # 280846 and Hon'ble Patna High Court in the matter of Ranju Devi and others vs. Pawan Kumar Patwari and others, 2004(1) ACJ 230.
In view of the above judgments, the argument raised by the learned counsel for the appellant-Insurance MEENU 2014.09.20 14:26 I attest to the accuracy and authenticity of this document chandigarh FAO-878-2014 (O&M) -13- Company that death of Surender @ Satender could not be termed as a death by use of motor vehicle is not tenable and the same is hereby rejected.
The second submission of learned counsel for the appellant-Insurance Company has been answered by Hon'ble the Supreme Court in the matter of National Insurance Company Limited vs. Swaran Singh and others, 2004(2) RCR (Civil) 114, which is as under:-
"There may be a case where an accident takes place without there being fault on the part of the driver. In such an event, the question as to whether a driver was holding a valid licence or not would become redundant."
Reference was made to Jitender Kumar vs. Oriental Insurance Co. Ltd. & another, J.T. 2003(5) SC 538.
As per the material available on record, Surender @ Satender was on the steering of the ill-fated vehicle bearing No.HR-55B-4965 when respondent Nos.3 and 4 strangulated him and after causing his death threw his corpus in the ditches within the revenue estate of village Nangal Soda, District Mahendergarh. From the said facts, it is very much clear that the question of driving licence would not be MEENU 2014.09.20 14:26 I attest to the accuracy and authenticity of this document chandigarh FAO-878-2014 (O&M) -14- relevant so far as death of Surender @ Satender is concerned.
As a sequel to the above discussion, both the arguments raised by Mr.Ashwani Talwar, learned counsel for the appellant-Insurance Company, are not sustainable and, as such, the present appeal sans merit and is hereby dismissed.
September 10, 2014 (NARESH KUMAR SANGHI)
meenu JUDGE
REFER TO REPORTER
MEENU
2014.09.20 14:26
I attest to the accuracy and
authenticity of this document
chandigarh