Himachal Pradesh High Court
United India Insurance Company Limited vs Parkash Chand And Others on 27 March, 2017
Author: Chander Bhusan Barowalia
Bench: Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO (MVA) No.447 of 2012.
Reserved on : 15.3.2017.
.
Decided on : 27.03.2017.
United India Insurance Company Limited. ...Appellant.
Versus Parkash Chand and others ...Respondents. Coram of The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge. Whether approved for reporting?1 Yes.
For the appellant : Mr. Ashwani K. Sharma, Sr. Advocate with Mr. Jivan
rt Kumar, Advocate.
For the respondents : Mr. Anup Rattan, Advocate.
Chander Bhusan Barowalia, Judge.
The present appeal under Section 173 of the Motor Vehicles Act, 1988, is maintained against the impugned award dated 16.8.2012, passed by learned Motor Accident Claims Tribunal, Una, District Una, in MAC Case No.30 of 2010, filed by the appellant/respondent No.3/Insurance Company (hereinafter referred to as 'respondent No.3') against respondent No.1/petitioner, namely Parkash Chand (hereinafter referred to as 'the petitioner') and respondents No.1 and 2, namely, Khem Chand and Sohan Lal therein (hereinafter referred to as 'respondents No.1 and 2').
1Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 15/04/2017 22:04:19 :::HCHP 22. The brief facts giving rise to the present appeal are that on 31.1.2010 at about 12:30 PM, when petitioner reached near Ghaluwal Petrol Pump in District Una, on his motorcycle bearing No. .
PH-08BH-3690 from his village on way to Padiana, respondent No.1 driving Tata Safari bearing registration No.HR-40C-0929 (new number HP-72-1760) came from behind and struck against the motorcycle from behind due to the impact of which petitioner fell of down on the road alongwith his motorcycle and sustained fracture on his left leg. The petitioner has claimed compensation of rupees five lacs.
rt
3. Respondents No.1 and 2 have contested the claim petition. They have raised preliminary objections qua non joinder of necessary parties i.e. owner and driver of motorcycle. On merits, respondent No.1 (Khem Chand) driving the vehicle in a normal speed with care and caution, when he reached near Petrol Pump Ghaluwal, petitioner was going in front of respondent No.1, who suddenly turned his motorcycle towards right side without giving any signal, as a result of which vehicles collided. The accident has taken place due to rash and negligent driving of motorcycle by the petitioner. Respondent No.3/Insurance Company has filed reply raising preliminary objections qua cause of action, driver not possessing valid and effective licence, vehicle being plied ::: Downloaded on - 15/04/2017 22:04:19 :::HCHP 3 without Registration Certificate, route permit, fitness certificate in violation of terms and conditions of the Insurance Policy.
4. The learned Court below framed the following issues on .
23.3.2011 and 28.5.2012, as under:
1. Whether petitioner Parkash Chand sustained injuries due to rash and negligent driving of vehicle No.HR-
40C-0929 by respondent No.1 ? OPP.
1-A Whether vehicle Tata Safari bearing registration No.HR-
of 40C-0929 was subsequently allotted registration No.HP- 72-1760 ?
2. If Issue No.1 is proved, to what amount of rt compensation and from whom the petitioner entitled to ? OPP.
3. Whether petition is bad for non joinder of necessary parties i.e. owner and insurer of motorcycle No.PB- 08BH-3690 ? OPR1 and 2.
4. Whether respondent No.1 was not holding valid and effective driving licence to drive the vehicle in question ? OPR3.
5. Whether the vehicle was being used in violation of the terms and conditions of the insurance policy ? OPR3.
6. Whether the vehicle was being plied without valid registration certificate and fitness certificate at the relevant time ? OPR3.
7. Whether petition is filed in collusion with respondent Nos.1 and 2. If so its effect ? OPR-3.
8. Relief.
5. After deciding Issue Nos.1, 1-A and 2 in favour of the petitioner, Issue Nos.3 to 7 against the respondents, the learned ::: Downloaded on - 15/04/2017 22:04:19 :::HCHP 4 Tribunal held that the petitioner is entitled for an amount of `1,60, 172/- to be paid by respondent No.3.
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6. I have heard the learned counsel for the parties and have also gone through the record of the case carefully.
7. Mr. Ashwani K. Sharma, learned Senior Counsel appearing on behalf the appellant has argued that the impugned award passed by the learned Tribunal below is not sustainable in of the eyes of law, as on the day, when the accident took place, respondent No.2, was not owner of the vehicle in question. He has rt further argued that he became owner of the vehicle afterwards, so the Insurance Company is not liable to pay the compensation amount.
8. On the other hand, learned counsel appearing on behalf of the respondent has argued that the Insurance Company has insured the vehicle in the name of respondent No.2 and so, when Insurance Policy was valid, therefore, Insurance Company is liable to pay the compensation amount. There is no illegality and infirmity in the impugned award passed by the learned Tribunal below. He has relied upon the judgment of this Hon'ble Court in FAO No.314 of 2011 with FAO No.7 of 2013, decided on 7.10.2016.
9. In rebuttal learned Senior Counsel appearing on behalf of the petitioner has argued that facts of the judgment as cited are ::: Downloaded on - 15/04/2017 22:04:19 :::HCHP 5 different, Sohan Lal (respondent No3) in whose insurance policy has not stepped into the witness box.
10. PW-1 Parkash Chand, has deposed that on 31.1.2010, he .
was going to village Padiala, on motorcycle bearing No.PB-08BH-
3690, when at about 1:30 pm, he reached near Ghaluwal Tata Safari bearing No.HR-40C-0929, being driven by respondent No.1 Khem Chand, in a rash and negligent manner struck against his of motorcycle from behind. Due to striking of the vehicle, petitioner fell down on the road alongwith motorcycle and sustained injuries rt including fracture of left leg. According to him, the accident took place due to rash and negligent driving of driver Khem Singh.
Though, in FIR Ex.PW1/B, vehicle number is mentioned as HR-40- 0929 and alphabet 'C' is missing, but that is of no consequence as HC Dev Raj (PW-6), who investigated the FIR, has deposed that on registration number of the vehicle was HR-40C-0929 as well on the insurance policy. He has further deposed that vehicle bearing No.HR-40C-0929 was got mechanically examined. RW-1 Khem Chand, has deposed that the accident occurred due to rash and negligent driving of the petitioner, as he did not give any signal turned his motorcycle towards right side. He has admitted in his cross-examination that Parkash Chand was going on his motorcycle in his correct side of the road and had proper speed through he claimed that he too was driving the vehicle properly.
::: Downloaded on - 15/04/2017 22:04:19 :::HCHP 611. It is clear from the above evidence that respondent No.1 was driving the vehicle in a rash and negligent manner, which has resulted into the accident, so the respondents are liable to pay the .
compensation amount. Now, coming to the liability of Insurance Company is concerned, the vehicle was being plied without valid Registration Certificate. RW-3 Sahi Ram, Assistant from RTO, Karnal (Haryana) has deposed that Registration Certificate of Ex.RW2/D is fake, as the same is not issued by RTO, Karnal. He has stated that no Registration Certificate has been issued with rt number HR-40C-0929. Registration Certificate is not validly issued, as such Insurance Company is not liable for the claim, as the insured has played fraud at the time of obtaining insurance contract. RW-3 Sahi Ram has not brought the record from the office of Registering Authority-cum-RTO, Assandh. He has further deposed that Registration Certificate Ex.RW2/D absolutely valid and on the basis of same vehicle has been insured, vide policy Ex.RX by the insured and now Insurance Company cannot repudiate the claim alleging Registration Certificate to be non valid.
In his cross-examination, he has admitted that after registration of HR-40C-299, registration numbers had been issued. He has further deposed that he had not brought the record of the same. He has also stated in his cross-examination that he has never worked in Tehsil Assandh and register regarding registration No.HR-40C-0101 ::: Downloaded on - 15/04/2017 22:04:19 :::HCHP 7 to HR-40C-300 does not contain certificate of paging. The Insurance Company has not examined any person from the RTO Office to prove their case. They have failed to discharge the onus, .
which was cast upon them. It is true that now the vehicle has re-
registered at Una and that Registration Certificate is valid. The Insurance Company has charged premium of `14511/-, vide policy Ex.RX has been issued. Now, when the Insurance Company has of insured the vehicle and has undertaken to indemnify the owner in respect of the compensation amount. This Court finds that after the rt accident has taken place, Insurance Company has no right to say that the Insurance Policy was issued wrongly in favour of a person, who was not registered owner. This Hon'ble Court in FAO No.314 of 2011 with FAO No.7 of 2013 has held as under:
"25. The Apex Court in case titled as HDFC Bank Ltd. vs. Kumari Reshma and Ors, 2014 AIR SCW 6673 held that a person who is in possession of the vehicle in terms of a hire purchase agreement or agreement of lease or agreement of hypothecation is the owner of the said vehicle. It is apt to reproduce paragraphs 10 and 24 of the said judgment hereunder:
"10. On a plain reading of the aforesaid definition, it is demonstrable that a person in whose name a motor vehicle stands registered is the owner of the vehicle and, where motor vehicle is the subject of hire purchase agreement or an agreement of hypothecation, the person in possession of the vehicle under that agreement is the owner. It also stipulates that in case of a minor, the guardian of such a minor shall be treated as ::: Downloaded on - 15/04/2017 22:04:19 :::HCHP 8 the owner. Thus, the intention of the legislature in case of a minor is mandated to treat the guardian of such a minor as the 'owner'. This is the first exception to the .
definition of the term 'owner'. The second exception that has been carved out is that in relation to a motor vehicle, which is the subject of hire purchase agreement or an agreement of lease or an agreement of hypothecation, the person in possession of vehicle under that agreement is the owner. Be it noted, the legislature has deliberately carved out these exceptions of from registered owners thereby making the guardian of a minor liable, and the person in possession of the vehicle under the agreements mentioned in the rt dictionary clause to be the owners for the purposes of this Act.
24. On a careful analysis of the principles stated in the foregoing cases, it is found that there is a common thread that the person in possession of the vehicle under the hypothecation agreement has been treated as the owner. Needless to emphasise, if the vehicle is insured, the insurer is bound to indemnify unless there is violation of the terms of the policy under which the insurer can seek exoneration."
26. The Apex Court further held that the person who is in actual possession of the vehicle and is under control of the same at the time of accident has to satisfy the liability. It is apt to reproduce paragraphs 13, 15, 16 and 25 hereunder:
"13. In this context, we may refer to a two-Judge Bench decision in Rajasthan State Road Transport Corporation V. Kailash Nath Kothari & Others, 1997 7 SCC 481. In the said case, plea was taken by the Rajasthan State Road Transport Corporation (RSRTC) before the High Court that as it was only a hirer and not ::: Downloaded on - 15/04/2017 22:04:19 :::HCHP 9 the owner of the bus, it could not be fastened with any liability for payment of compensation but the said stand was not accepted. It was contended before this Court .
that the Corporation not being the owner of the bus was not liable to pay any compensation arising out of the accident because driver who was driving the bus at the relevant time, was not in the employment of the owner of the bus and not of the Corporation and hence, it could not be held vicariously liable for the rash and negligent act of the driver. The Court referred to the definition in of Section 2 (3), which defines "contract carriage", Section 2 (19), which defines the "owner", Section 2 (29), which defines "stage carriage" and Section 42 that dealt with rt "necessity of permits". Be it stated, these provisions reproduced by the Court pertained to Motor Vehicles Act, 1939 (for short, 'the 1939 Act'). The owner under the 1939 Act was defined as follows:
"2. (19) 'owner' means, where the person in possession of a motor vehicle is a minor, the guardian of such minor, and in relation to a motor vehicle which is the subject of a hire purchase agreement, the person in possession of the vehicle under that agreement;"
The Court referred to the conditions 4 to 7 and 15 of the agreement and in that context held thus: "The admitted facts unmistakably show that the vehicle in question was in possession and under the actual control of RSRTC for the purpose of running on the specified route and was being used for carrying, on hire, passengers by the RSRTC. The driver was to carry out instructions, orders and directions of the conductor and other officers of the RSRTC for operation of the bus on the route specified by the RSRTC".
While dealing with the definition of the owner under the 1939 Act, the Court ruled that the definition ::: Downloaded on - 15/04/2017 22:04:19 :::HCHP 10 of owner under Section 2 (19) of the Act is not exhaustive. It has, therefore to be construed, in a wider sense, in the facts and circumstances of a given .
case. The expression owner must include, in a given case, the person who has the actual possession and control of the vehicle and under whose directions and commands the driver is obliged to operate the bus. To confine the meaning of "owner" to the registered owner only would in a case where the vehicle is in the actual possession and control of the hirer would not of be proper for the purpose of fastening of liability in case of an accident. The liability of the "owner" is vicarious for the tort committed by its employee rt during the course of his employment and it would be a question of fact in each case as to on whom can vicarious liability be fastened in the case of an accident.
15. In this context, it is profitable to refer to a two Judge Bench decision in National Insurance Co. Ltd. V. Deepa Devi & Ors., 2008 1 SCC 414. In the said case the question arose whether in the event a car is requisitioned for the purpose of deploying the same in the election duty, who would be liable for payment of compensation to the victim of the accident in terms of the provisions of 1988 Act. The Court referred to the definition of 'owner' in the 1939 Act and the definition of 'owner' under Section 2 (30) of the 1988 Act. In that context, the Court observed that the legislature either under the 1939 Act or under the 1988 Act had visualized a situation of this nature. The Court took note of the fact that the respondent no. 3 and 4 continued to be the registered owners of the vehicle despite the fact that the same was requisitioned by the District Collector in exercise of the power ::: Downloaded on - 15/04/2017 22:04:19 :::HCHP 11 conferred upon him under the Representation of People Act, 1951 and the owner of the vehicle cannot refuse to abide by the order of requisition of the .
vehicle by the District Collector. Proceeding further, the Court ruled thus:
"...... While the vehicle remains under requisition, the owner does not exercise any control there over.
The driver may still be the employee of the owner of the vehicle but he has to drive it as per the direction of the officer of the State, who is put in charge of thereof. Save and except for legal ownership, for all intent and purport, the registered owner of the vehicle loses entire control there over. He has no say rt as to whether the vehicle should be driven at a given point of time or not. He cannot ask the driver not to drive a vehicle on a bad road. He or the driver could not possibly say that the vehicle would not be driven in the night. The purpose of requisition is to use the vehicle. For the period the vehicle remains under the control of the State and/or its officers, the owner is only entitled to payment of compensation therefor in terms of the Act but he cannot not exercise any control thereupon. In a situation of this nature, this Court must proceed on the presumption that Parliament while enacting the 1988 Act did not envisage such a situation. If in a given situation, the statutory definitions contained in the 1988 Act cannot be given effect to in letter and spirit, the same should be understood from the common sense point of view.
16. Elaborating the concept, the Court referred to Mukesh K. Tripathi V. Senior Divisional Manager LIC, 2004 8 SCC 387, Ramesh Mehta V. Sanwal Chand Singhvi, 2004 5 SCC 409, State of Maharashtra V. Indian Medical Assn., 2002 1 SCC 589, Pandey & Co.
::: Downloaded on - 15/04/2017 22:04:19 :::HCHP 12Builders (P) Ltd., V. State of Bihar, 2007 1 SCC 467 and placed reliance on Kailash Nath Kothari , National Insurance Co. Ltd. V. Durdadahya Kumar Samal, 1988 .
2 TAC 25 and Chief Officer, Bhavnagar Municipality V. Bachubhai Arjanbhai, 1996 AIR(Guj) 51 and eventually opined the State shall be liable to pay the amount of compensation to the claimant and not the registered owner of the vehicle and consequently the appellant therein, the insurance company.
25. In Purnya Kala Devi, a three-Judge Bench has of categorically held that the person in control and possession of the vehicle under an agreement of hypothecation should be construed as the owner and rt not alone the registered owner and thereafter the Court has adverted to the legislative intention, and ruled that the registered owner of the vehicle should not be held liable if the vehicle is not in his possession and control. There is reference to Section 146 of the Act that no person shall use or cause or allow any other person to use a motor vehicle in a public place without insurance as that is the mandatory statutory requirement under the 1988 Act. In the instant case, the predecessor-in interest of the appellant, Centurion Bank, was the registered owner along with respondent no.2. The respondent no. 2 was in control and possession of the vehicle. He had taken the vehicle from the dealer without paying the full premium to the insurance company and thereby getting the vehicle insured. The High Court has erroneously opined that the financier had the responsibility to get the vehicle insured, if the borrower failed to insure it. The said term in the hypothecation agreement does not convey that the appellant financier had become the owner and was in ::: Downloaded on - 15/04/2017 22:04:19 :::HCHP 13 control and possession of the vehicle. It was the absolute fault of the respondent no.2 to take the vehicle from the dealer without full payment of the .
insurance. Nothing has been brought on record that this fact was known to the appellant financier or it was done in collusion with the financier. When the intention of the legislature is quite clear to the effect, a registered owner of the vehicle should not be held liable if the vehicle is not in his possession and control and there is evidence on record that the respondent of no.2, without the insurance plied the vehicle in violation of the statutory provision contained in Section 146 of the 1988 Act, the High Court could not rt have mulcted the liability on the financier. The appreciation by the learned Single Judge in appeal, both in fact and law, is wholly unsustainable."
27. In view of the above discussion, it is held that Gurdeep Singh, who was in actual possession of the offending vehicle, had the control of the offending vehicle, and thus, has to satisfy the entire liability. The Tribunal has fallen into an error in saddling the registered owners with the liability. Since the driver of the offending vehicle, namely, Lakhwinder Singh is the sole representative of Gurdeep Singh, who has expired during the pendency of the appeals, therefore, said Lakhwinder Singh has to satisfy the award. Questions No. (ii) and (iii) are answered accordingly."
12. In the present case, respondent No.2 was in possession of the vehicle in question, as owner of the vehicle was duly insured by Insurance Company/respondent No.3, after charging the premium and Insurance Company is liable to pay the compensation ::: Downloaded on - 15/04/2017 22:04:19 :::HCHP 14 amount. In these circumstances, this Court finds that there is no infirmity and illegality with the well reasoned judgment passed by the learned Tribunal below, as Insurance Company has insured the .
vehicle knowingly fully well that it was in possession and control of respondent No.2 (Sohan Lal), as owner. This Court also finds that the quantum of compensation, as arrived by the learned Tribunal below is just, reasoned and as per law, as the loss of future of income, loss of actual income and other expendable charges, is just and reasoned. No other points argued so, needs no consideration.
13. rt The net result of the above discussion is that the appeal is devoid of any merit deserves dismissal and the same is accordingly dismissed. In the peculiar facts and circumstances of the case, parties are left to bear their own costs. Pending application (s), if any, shall also stands disposed of.
(Chander Bhusan Barowalia) th 27 March, 2017 Judge (CS) ::: Downloaded on - 15/04/2017 22:04:19 :::HCHP