Allahabad High Court
New India Assurance Co. Ltd. vs Shanti Devi And Ors. on 12 July, 1996
Equivalent citations: 1998ACJ1173
Author: R.K. Singh
Bench: R.K. Singh
JUDGMENT
Om Prakash and R.K. Singh, JJ.
1. Heard counsel for the appellant.
2. This is an appeal filed by the insurer against the impugned award dated 2.3.1996 made by the Motor Accidents Claims Tribunal, Uttar Kashi.
3. One Sunder Lal died when the taxi by which he was travelling, met an accident on 10.11.1993 in Uttar Kashi District. He was 35 years old, was serving in Animal Husbandry Department at that time and was getting salary of Rs. 2,300/- per month. The claimants, namely, widow, children and mother filed a claim petition before the Tribunal. The Tribunal holding that Sunder Lal died due to rash and negligent driving of the taxi by the driver, who himself owned the taxi and died of the same accident and considering his age and emoluments, determined compensation at Rs. 1,65,000/- and held that the insurer was liable to indemnify that liability which was incurred by the owner of the vehicle.
4. The only contention raised before us is that the claim petition was bad for nonjoinder of the parties, inasmuch as the heirs of the deceased owner of the taxi were not impleaded. Such contention was raised before the Tribunal as well which held that on the facts and circumstances of the case, it was not necessary to implead the heirs of the deceased owner of the taxi.
5. Learned counsel for the insurer, Mr. A.B. Saran, vehemently urges before us that unless there is an award against the owner of the vehicle, there shall be no responsibility of the insurer to indemnify the owner. He submits that there cannot be any award against the deceased insured, inasmuch as his heirs have not been impleaded. There being no award against the owner, says Mr. Saran, no liability could be said to have been incurred by the owner and that being so, the appellant is not liable to indemnify any liability in this case.
6. The Tribunal clearly found that due to rash and negligent driving of the taxi by the deceased owner, the fatal accident was caused. The question for consideration is whether this finding is enough to conclude that the liability was incurred by the owner of the vehicle. Mr. Saran submits that in this case no liability was created against the owner, inasmuch as his heirs were not impleaded and unless the liability of the owner is created, the insurer cannot be held liable to indemnify.
7. Section 140(1) of the Motor Vehicles Act, 1988, (briefly, 'the new Act') provides that where death of any person has resulted from an accident arising out of the use of a motor vehicle, the owner of the vehicle shall be liable to pay compensation in respect of such death in accordance with the provisions of this section. From Sub-section (1) of Section 140, it is manifest that the owner of the vehicle is statutorily liable to pay compensation if it is proved that death was caused by an accident arising out of the use of his motor vehicle. Essential ingredients of Sub-section (1) of Section 140 are as under:
(1) death or permanent disability of any person;
(2) death or permanent disability has resulted from an accident; and (3) accident arose out of the use of a motor vehicle If these ingredients are established then statutory liability of owner to pay compensation would automatically flow from Section 140(1) of the new Act. From the finding recorded by the Tribunal, it is clear that the taxi by which the victim travelled, was driven rashly and negligently by the owner himself which caused the accident in which the owner-cum-driver of the taxi himself died with others. The liability of the owner of the vehicle is statutory liability under Section 140(1) and that is not dependent on the fact whether the owner and in the event of his death whether his heirs have been impleaded. If the owner of the vehicle is alive, surely, he is to be impleaded so that he may deny his liability if he so chooses. If the owner of the vehicle which met the accident is not alive, we are unable to see any force in the submission of Mr. Saran that impleadment of the heirs was necessary. Liability under Section 140(1) being statutory will operate on its own irrespective of the fact whether heirs of the deceased owner are impleaded.
8. Mr. Saran submits that the liability of the owner if his vehicle caused death in an accident is not statutory but that arises from law of Torts. This he argued relying on the case of Minu B. Mehta v. Balkrishna Ramchandra Nayan 1977 ACJ 118 (SC), in which the Court observed that the liability of the owner of the vehicle to compensate the victim is based on law of torts. No doubt, the liability to pay compensation can be traced to the law of torts but it is codified in Chapter X of the new Act and after the codification it has become a statutory liability flowing from Sub-section (1) of Section 140. If heirs of the deceased owner are not impleaded, the statutory liability as embedded in Section 140(1) of the Act will not vanish. Before codification of Hindu law, the sources of Hindu law were Shrutis and Smritis, etc. but after codification of Hindu law, rights are governed by respective Acts. Before Chapter X was enacted, one could have claimed compensation only under law of torts but after the enactment, liability of the owner of the vehicle is found under Section 140(1) of the new Act.
9. Mr. Saran then relied on Abdul Ghafoor v. New India Assurance Co. Ltd. 1981 ACJ 340 (Allahabad). This authority pertains to the Motor Vehicles Act, 1939, (hereinafter to be referred as 'the old Act'). In this case Mahmood, a conductor who was in the employment of the owner of the public carrier, died in an accident. His kith and kin filed a claim petition under Section 110-A of the old Act claiming compensation from the owner of the vehicle and the insurer. The Claims Tribunal dismissed the claim petition on the ground that the widow of the deceased filed an application for compensation under the Workmen's Compensation Act, 1923, and, therefore, other dependants of the deceased could not maintain another claim petition in view of Section 110-AA of the old Act. On the merits, the Tribunal held that the vehicle was being driven by the owner himself in a negligent and rash manner resulting in accident causing the death of the conductor. During the appeal, the claimants-appellants failed to take any steps for service on the owner of the vehicle. The appellants were granted time to take steps for service of notice on the owner of the vehicle, but they failed to do so and the appeal against the owner was dismissed twice. The claimants did not pursue the appeal and they failed to take steps for service of notice on the owner of the vehicle.
10. In these circumstances, the insurer company urged that the appeal was incompetent and no decree could legally be passed against the insurance company alone. On these facts, a Division Bench of this Court held in Abdul Ghafoor (supra) as follows:
There is no dispute that the owner of the vehicle is not before us and even if the appeal is allowed, no decree could be passed against the owner, instead a decree can only be passed against the insurer. The question arises as to whether in the absence of owner of the vehicle a decree can be passed against the insurer for payment of damages to the dependants of a person who may have died in the accident.
Adverting to Section 96 of the old Act, the Division Bench of this Court culled out the following conditions of Section 96:
The first condition is that there should be a judgment or a decree against a person insured. The second condition is that the judgment must be in respect of liability covered by the policy under Clause (b) of Sub-section (1) of Section 95. The third condition is that the liability, in fact, must be covered by the terms of the policy.
Having stated the above conditions, this Court further observed in para 5 as follows:
If any of these three conditions is not satisfied, the insurer will not be responsible to pay compensation for the bodily injury or death which may have been caused to a third party. These provisions clearly show that in absence of a decree against the owner (person insured), an insurer has no liability to satisfy the claim of a third party as under the policy the insurer is liable to satisfy the liability which may have been accrued against the person insured.
Relying on the first condition as culled out by this Court in para 5 that there should be a judgment or a decree against a person insured, Mr. Saran argues before us that as there is no judgment or decree against the person insured, i.e., the deceased owner of the taxi, insurer cannot be held responsible. We do not see any force in this submission. The provisions as contained in Sections 95 and 96 of the old Act, are materially different from the provisions as contained in Chapter X of the new Act and, therefore, Mr. Saran cannot press the case of Abdul Ghafoor in service. Once it is found that death resulted from an accident arising out of the use of a motor vehicle, the owner of the vehicle shall become statutorily liable to pay compensation in respect of such death under Section 140(1) of the new Act. Simply because heirs of the deceased owner are not impleaded, the insurer cannot repudiate its liability to indemnify the liability incurred by the deceased owner of the vehicle.
11. In this case the compensation is sought only from the insurer and not from the owner and for that reason also impleadment of the heirs of the deceased owner is not a fatal defect and that will not defeat the claim of the claimants.
12. For the reasons, we do not find any legal infirmity in the view taken by the Tribunal on this issue.
13. No other argument was made by Mr. Saran on behalf of the insurer.
14. The appeal, therefore, fails and is dismissed in limine. The amount deposited by the appellant in this Court will be remitted to the Tribunal for being adjusted.