Madhya Pradesh High Court
National Insurance Co. Ltd. vs Biniya Bai And Ors. on 17 November, 1999
Equivalent citations: 2000(1)MPHT461
ORDER V.K. Agrawal, J.
1. This appeal under Section 173 of the Motor Vehicles Act, 1988 is directed against the award dated 9-1-1995 in Motor Accidents Claims Tribunal Case No. 29/89, by IV Addl. Motor Accidents Claims Tribunal, Sagar.
2. It is no longer in dispute that Truck No. CPJ 4382 is owned by Komal Chand, driven by present respondent No. 4- driver Bihari, and insured by the appellant-the National Insurance Company. Deceased Ganesh was travelling in the said truck on 7-6-1981, after payment of fare to driver-respondent No. 4, when it turned turtle and met with an accident, resulting in serious injury to deceased Ganesh. Despite treatment the deceased Ganesh succumbed to the injuries sustained in the accident. He died on 8-6-1987. The Legal Representatives of deceased Ganesh-the respondent Nos. 1 to 3 herein, filed a claim petition praying that compensation be awarded against the owner, driver and the present appellant-National Insurance Company Ltd..
3. The petition of claim was resisted by the appellant-Insurance Company, inter alia on the ground that the deceased was travelling in the said truck in breach of condition of insurance policy, issued by the appellant.
4. The learned Tribunal after assessment of material and evidence on record held that the accident occurred as respondent No. 4 Bihari, the driver of the truck, was driving the truck rashly and negligently, resulting in fatal injuries to deceased Ganesh. Though the learned tribunal recorded a finding that the deceased was travelling in the truck; but relying upon the decision of this Court in Bhagwandas and Ors. v. National Insurance Company Ltd. (1994 MPLJ 709), the learned Tribunal held that since the appellant-Insurance Company has not proved that breach of terms of insurance policy was committed by the owner of the truck, therefore, the Insurance Company cannot be exonerated from its liability to pay the amount of award. Therefore, it was held that the owner, driver as also the appellant-Insurance Company are jointly and severally liable for the payment of compensation. Thus, the claim petition of claimants-respondent Nos. 1 to 3 was allowed and an amount of Rs. 67,200/- has been awarded as compensation. It was directed that the appellant as well as respondent Nos. 4 & 5 shall be jointly and severally liable for payment of the above amount of award.
5. The learned counsel for the appellant-Insurance Company has urged that as the deceased was travelling in a goods vehicle in breach of policy condition, the appellant-Insurance Company could not be made liable to pay the amount of award in view of Section 95(1)(b)(ii) of the Motor Vehicles Act, 1988. Reliance has been placed in this connection by the learned counsel for the appellant in Smt. Mallawwa v. Oriental Insurance Co. Ltd. (AIR 1999 SC 589) and United India Insurance Company Ltd. v. Gian Chand and Ors. [(1997) 7 SCC 558].
6. The learned counsel for the respondents however, supporting the award against the appellant has submitted that since the deceased Ganesh had paid fare and as the appellant-Insurance Company has not proved by proper and cogent evidence that the breach of conditions of policy was committed by the owner, the appellant-Insurance Company, could not escape its liability, to pay the amount of award.
7. It is not in dispute in the instant case that the ill-fated truck was a goods vehicle, not meant for carrying passengers. As noticed earlier also a categorical finding has been recorded by the learned Tribunal that the deceased was travelling in the truck after payment of fare to the driver. The finding is not under challenge and is fully supported by material and evidence on record.
8. In view of above, the question that arises for consideration is as to whether the appellant-Insurance Company is liable to pay the amount of compensation ?
9. In Smt. Mallawwa v. Oriental Insurance Co. Ltd. (supra) the Apex Court after referring to various decisions and also quoting extensively with approval Full bench judgment of Orissa High Court in New India Assurance Co. Ltd. v. Kanchan Bewa (1994 ACJ 138), has laid down that the Insurance Company is not liable in case of death of owner of goods carried in a goods vehicle, and that for the purpose of Section 95 of the Motor Vehicles Act, 1939, ordinarily a vehicle could have been regarded as a Vehicle in which passengers were carried, if the vehicle was of that class.
10. In United India Insurance Company Limited v. Gian Chand (supra), also it was held that Insurance Company would be entitled to be exonerated to meet the claim of the dependents of the third party victim of the accident, if there is breach of specified condition of the policy.
11. Since in the instant case, the deceased Ganesh was travelling in a goods vehicle though after paying fare to the driver, it would amount to a breach of the specified term of policy. Therefore, in view of the decisions as above, the appellant-Insurance Company could not have been made liable for the payment of the awarded amount. Accordingly this appeal deserves to be allowed.
12. Learned counsel for the appellant has further urged that since the appellant has deposited the amount of interim award, but as he has been exonerated from his liability; therefore, he is entitled to refund of the same. The learned counsel for the appellant has relied upon Jagnoo and Ors. v. Chhote and Ors. (1996 ACJ 958), wherein it has been observed that when the Tribunal has found that the Insurance Company is not liable to compensate the insured, the amount deposited by the Company towards no fault liability has to be refunded by virtue of provisions under Section 149(4) of the Motor Vehicles Act, 1988. In that case since no order was passed for the refund of the amount by the Tribunal, the cross-objection filed by the Insurance Company was allowed, and the Insurance Company was held entitled to recover the amount of compensation paid by it, towards no fault liability from the appellant-owners.
13. Similarly in National Insurance Company v. Mohd. Safi (1996 (1) MPWN 211), liberty was granted to the appellant-Insurance Company to apply to the Claims Tribunal for withdrawal of amount of interim award deposited by it with the Claims Tribunal as it was absolved from its liability in the final award. Similar view has been taken in New India Assurance Co. Ltd., Jabalpur v. Smt. Prabha Jain and Ors. (1998 (1) MPLJ 43). It has been held that in case the Insurance Company is absolved of its liability for payment of compensation, the liability cannot be fastened on it on the principle of no fault liability, and it would be entitled to recover the amount deposited by it in pursuance of the order under Section 92-A of the Motor Vehicles Act, 1939. Reference in that case was made to National Insurance Co. v. Smt. Savitri Bai and Ors. (1991 MPLJ 46) and National Insurance Company v. Thaglu Singh Vishwanath Gond and Ors. (1994 MPLJ 663), wherein it has been laid down that it is found that the insurer has no liability to pay the amount of compensation, Tribunal may issue appropriate direction for reimbursement of the amount from the owner of the vehicle. In Mohammed Ilias v. Bodhani Bai and Ors. (1991 MPLJ 119), also it has been laid down that the Insurance Company shall be entitled to direction for reimbursement of liability discharged by it under Section 92-A of the Motor Vehicles Act, 1939.
14. In the instant case, since the appeal of the appellant-Insurance Company is to be allowed, and since it is being exonerated from liability, it appears just and proper to direct that it shall be entitled to reimbursement of the amount of award paid or deposited by it, from the owner-the respondent No. 5.
15. Accordingly, this appeal of the appellant-Insurance Company is allowed. It is exonerated from its liability to make the payment of the amount of award. However, it is clarified that the liability of the respondent Nos. 4 & 5 to make the payment of amount of award shall be as awarded by the learned Tribunal, and it is further directed that the amount of interim award paid or deposited by the appellant Insurance Company would be liable to be reimbursed to it by respondent No. 5 the owner. The impugned award stands modified accordingly. The parties in the above circumstances are directed to bear their own cost of this appeal.