The New India Assurance Co. Ltd. vs Kum. Geeta D/O Vithal Kutre on 10 March, 2011

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Karnataka High Court

The New India Assurance Co. Ltd. vs Kum. Geeta D/O Vithal Kutre on 10 March, 2011

hue Pa Neal ood about. their jurisdiction and are not under the. Corstitution of India or under other it. Goes-iwot become a law declared by the Supreme Court either within the mean ng of Article decidendi having the effect of a aera Mane, learned counse! appe ar iTiS 1g it-Insurance Company in alk vhs it omean that the other courts and Tribunals in "this countre: alse should necessarily entertain about Their own power and authority. Wb Such are +f h & Su b ri iss i Ons in 4 de by Mr.Ravindra R. Mane lea a ed cou sel 7" spea ring for the appellant- New india' Assuratnice Company Limited, app cil nt 7 in cali He sé ap ' cals challenging ivder of the .tribuial.in the context of a Cou ri-ll and Additional MACT. at MVC Nos. 21 7OL2007. 2171/2007. i whereunder trie Priburre while disposin g the claim petitions of as "aS OF fine PCrTsons as in Pred persons cue to "J TPE. LOTUIPlies that the y rad SUTIe red in an ACCiae nt ag th oe ae ey awn pw UT ee ee ti pe pe qe ty bap deduge pangs -- fe Cos . they were all travelling as gratuitous passer vehicie though designed to commocdate.. pine:

persons apart from the the Tribunal while quantifying 1 newt o ie coe "Ae me wet

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wt pol Coma n yes Mad found that the percenlage Ol owners and the respecti ime clwo vehicies., but the Tribunal snd the tempo trax indemnify the insured, owner of the te TiDO fs and therefor Was mot required ta inde? used the of the tempo trax. as the "own err LUTOry provisions but nevertheless. having issued & direction that the Samount which was liable 8009 paid bythe ownerlof ihe tempe trax bur the Insurer can latér recover it from the owner of te oMr RR. Mane Yo su Pport submissions has olaced IMSupred doand to satisfv that part of the claim, oor Caompensal ion a MOUME in and later to recover it from and it iS aggrieved by this part of the order which | Nas caused considerable hurt burn, mas fiven use to a ey use "of 4 elion : Fer th e appellant-Insurance C ompa nyva,"c om eu b with the above batch of nine ap p e als 'and to wr ggle out oa!

3. 3 . Ce oe fe ba ge Pp ary ee -- _ 7 Lo gt EE gee VE : me ey gy ee at Leas the direction for-payment in CIO TPS! instance bs aree Gomnpnany and then recave; it from its -custerner. on oe

os a A fen Po oRhave heard Mr RR Mane. learned following decisions:

> apo. National insurance Company Limited Vs. a Parvathneni and Another (2009 (4) T.A.C. stvled as a judgment of the law journal om may transpires is that it is only~an order "to peter- the question to a larger bench as is indicated towards the end of it strong reliance is. placed .by_ the following observations «as. found ip Unsiirarnce (x PAST cry owner oF the vehicle. (See for exampie auonal insurance Co, Ltd. V. Yellamiuna & Another. (2008) 7 S.C.C. S62, Samundra Dep Vio Narendra Kaur (2008) SOGQS(4) TAC. 746 fuide para 16}, Onental " i i ;

hesurance Co. V. Bri Mohan (2007) + fuide para :

ms ae oO spent i fe gee Darshan i fi; Gf ar insurance Compan rot Pcue: ci poy @ny amount im claumerits tuneler Aét oor arug olhter ercchesre @ CTLOL Court yel compel it toypaar re GUeSHOn Giving Gberty fo leer:

recover the same-trom the the L Shige.

(2) Can such &o-dtrection be.

ven Ltoider ROFL, Ciricl Article [42-6f the. Gons CRG AS Mie. scope. oF Dees Article 142 permit the Court ta . Creatéea fabeity tr » there IS riorie? Supreme Court to to first pay the amount anc "it fram if8 insured, ered by the Statute or mot covered by the eontract and in of this mature was four Motor cope cannot be any different andy: at.car rate ihe jurisdiction why. Court had -deubted for. tmemselives as to whether or nof.and tnerefore stibmits thar such 4 the Tribunal should be set by the then recover from insured is nullified or set ashe." mac ~ _ wd ae fad "

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reliance on yet another judem ent Obit r Court in the case of GENERAL MANA GER, UNITED INDIA INSURANCE CO., LTD.,. rs, M.LAXMI AND OTHERS (2009 ACCI.C.R.310 (8.0.)) and submits that in this case, th é : sup rein e Co urt has emphatically ob served or eu d ao wh th at there is ne ice Company which has issued ancact morey to cover ihe risk of the owner if rn cot o pois i injury or bY. dependents when that the status of «a LS Dassen Ber in a@ tem pO Trax cannot be an ¥ and particularly as the Insurance Com panv had nat collected any extra premium from the owner «of | vehicle to cover the risks against the claim passengers in the vehicle. an &. For such purpose, Mr.RoR M:

attermtinar * tly ps ne be- lang oa 4 Es re a7 attention toa the PO}ICS PEAMING "NO. Taleo? »

4 f 31/06/02 /00010668 ar: d-captionéd asa private car policy A liabilitv only wherein the cover the risk of she -.Gajanan R apaba Pawar who figures as 4° vespondent in these apneals Dist:Kothapur. Kolhapur, "Maharashtra-41600 policy issued fer-the period from 14.02.2007 te sand when the vehicle is used within the Pndaa: after havi as premium.

B s eg L ey fan a ra debe cot sao soon sont en cn a Nag "

not in & position to fota) Met premium of Rs.2.525/- nas been collected > and white if is claimed that the entire premiu amount is towards basic third warty claims, one passenger whoa is the driveris-alse paid additional premium cat the vaie of Rs.25/- for ach ef the permitted capacit:

of the vehicle and suich.additional premium having ot been not paid, there is absolutely ne lability on the gy Kal pare. of the. Insurance Company and th "brad realised this position 'nevertheless: ted the Insurance Company to aYst pay aed then recover from the owner which is e ye

8. itis a fact that the policy describes it as poliev-A liability only but the details of mak Mig "up May. €ven assuming that the poticy is only-an AGL Compary, Se ga a rn ae Nog Z ~ a Le.

Sued. a direction of the the owner and it is only that is the cause of action Company.

Wei Malianalisecd el crie in the Motor Vehicles Act. (ORS. providing for constitution of specialised Tribunals ¥ se Lk keaown as Motor accidents Claims Tripunal, an informal forum before which the victims of » accidents could go for claiming before an exclusive forum and af the procedural aspects of a regular suit a

10. The twin purpose of. this legis! was to ensure that the victims of trotor a involving the use cof motor 'vehicles on roads were routine. travails of a litigant before the "regular -ceurts in the Indian Legal System. and/are.. instead oflered an in formal 'laimants, put the other more important purf 29 the owners of ve imsurance issued in fayour of the owner -to-cover + the risks of the ewner against fhe, third party ae il. While so there is alsa th e fur lmSurance Companies Or with an @8ee om "srofht and funetionu timate fefeat untenable, surris: and Tribunals and virtual £ very purpose of providing expeditious remedy and therefore the business of lationalised and it was expected that the (as:

Company would actin a fair manner, b eing [email protected] and Central Government owned organ Ned "

o Lwin obs purpose,..the Motor Accidents Claims Tribunal are fhe provisions of the Motor ids. hots rather unfortunate Cab LPie fears ryrethoad of "endt st

--

quantification of the compensation pavable and for id. Section 163-A of the Motor Vehicles -Act though is one attempt, it is more than a successful provision of law in th not one of providing necessary commensura to the victims of road a@ecidents involving use of iS. Yet another aspeat erving for aitention but not attracting the-attention.of the Legislature is the provision-rather on@f-provision for Inmates of velicles designed to carry if iS im. this area, tie dichotomy of fare paying . ef :

faken Care to ens ~ ve! "ey o~ weope ot oe = oO aid wo "

ae oo ~ bent on 8 emt! & oe fant on thigyd party claims are not defeated in the manne:

ii iS equally importanicand necessary to ensure that the c perhaps im law, for nonm-tare compursory coverage of Insurance and t cofnirercial basis and duly authorised by Transport AULNOPItiGS and permitted to carry Passengers by cohecting fare are covered by a COM PUi sors IM SUrance travelling apa ary: ar which @gain appears to be iltegical or one of-actine Situation j.e.. meting out:

tide . ape ee es tba es ee ee es PLR DeCrSOnS WoO Are vict iS POLS Phe accident. iL is @ise tne fact that a vehicle ent even when ihe tne venicie accident may vehicle and contributing for the cause of accident. Siluation, it may never be possibile for an' FRO other SE YSOTIS ihe Ww hoo conmtributories to the cause oof. when the object of legislation is té expeditious and vneéxpeisive. relict > other hand leaving g PVCU TD ac Pros) St OV ETY pross deficiency on the pa imo t ambiguity or uncertainty to resolve that should be so interpreted as to suk mischief which was sought to be @ot byer and to

19. While courts 'can never become a substitute are areas to be there are-areas where the legislat bring if to their notice an 36 take care of this aspect, cormprisry epresentatives of the people: who have th eip.nane on the pulse of the people, whe can respond to their hopes and aspirations -and"

conversant with CGMMurications. af society and can"

Wath Aa situation whe FeSuUit IM injustice ete ine courts to became : exo fb ata - OPM BED pe Re ge ct SOULPLTCIYY OWE VE] hen or, ad-hoc it ON BIVen 35 af 3 € a bmn _-- o -

2 | In fact that is how the common PDA Ceveloper legislatures and judiciary being -ene of theothree particulariy in | Supreme. Court being creatures of the Consti: Gtren, alw required to function wirhin.the "fimirs of the bg 22, Here is a Sitvetion where th e Tribunal more as and. bemie guided by me conscious of the law i wiriie the. Insurance Company is mot made liab LT TED hlability PS Tastenead an it i 1é imsured in the first the amount to the claimants and get it reimbursed from its insured Mrok.R Mane nodoubt urges thet the transaction and relationship between the Jnstirer party claims of the the Motor Vehicles Act, I9S88. >i cannot be no this background. if the Tribunal says that as between lhe. viethh/iejured persons and tine msurance Compatiy . who Nas a Dusiness Prati SAChHOorn ww hh t relationship. with -the insurer, is LO SO In So far as the authorities relied upon by Vii ROR. Mane is concerned, while the first BUT Orihy cited is net an authority in the eve of |:

only an order by a bench of the Supremé. Cours referring the matter to be -placed. before "a. larger berich, expressing certain d OUBLS abot. their OWT power and jurisdiction, in. does. not necessaril ae 2 follow that all other forums. eourts and Tribunals precedent Court of India is the envy and evnasure of all

25. The constitution of [India as stich -nas:.

all courts within the territery.of bidia, but also are eypabied ta necessary for colne comple! "Supreme.Court and a decree or "141, Law declared by Supreme Court to be binding on all Courts--The lau: declared eme Court shall he Pincing on all ae 4 |

142. Enforcement of decrees and orders of Supreme Court and orders as to discovery, -- etc--

The Supreme Court i the furisdiction May Pass Such.« ME CeS Se QA; CALS OF i. . : Cet ey pee ee ey "se QiPilp €£@OPEee SO sou iRade = Shall enforceable througneut. the tei «PE Ser in such manner coumay under Gnu ian Ladle poPis provisions of any laue mriade ", «fe py poet flaws Parliament, the wal Pad eh TF cilendarnce OF GFL DErsori, TLETPIEIPLES OK oar produchan 0) estigalion or purusniment Gf ary Constitution of Incia. as provided under Artiche of the Constitution of India for former purpose Article 142 of the Constitution-of India Tor the it 18 rather wunforrunat > misfortune of our times that-to learned FUGweES OF ihe Supreme Court of hdochave ex Pdia so long as it is done in a THaMner alc lob a rustifiable cause, is always within the jurisdiction of Supreme Court of enabling provisions. of 45 aa sl a " ted OMESeG wi H th the scope of Art d4i and j42 Constifution of Ind: ~ "OP" Article ees er cae LO PR SPR E.. Seog Ps Mme award either in terms oof. the Stabutery DYOVISIONS or the contract as Palicv, it, nevertheless, is binding on the insuren ce "Company andi OLUDPere Court nas erabied Prbe: Oe COM Dany "insured, it is fo recover the an: ount da ce open to the insurance er ne rr ee a oe OFaer OF ThIiS= nature deciared by the Supreme Court in terms of Article l4) of the Co mstitution of India and rer tae scope and jurisdiction of Article ratio and precedenti:

and applied by other e <t ee he a ek Lay ge ae as en Loe ay IS HO scope. for finding fe 45 counsel for the appellant iINnSuUrance comps

28. in so far as the second AULMOTLEN IS: cance rred:

as even tf) tac law as.is d herein in not foisting any labiity-on the Insuran ned 1p laav oon the appellant- insurance Company, to make good the lability an mor.tne Tribunal has made the lies ilitae facies ea sphoes LY gir PAOTTEY ROL arma "Revere applied OEE Pribunmal er this COUPE. ee PS to upser the direction as even afi ler examining the. ques Cron"

Iractical-paint af ON TERE | pendeney of CG Causes SE issue of f moter VE PLPC Le @ 47

31. Registrar General to forward a copy of (this mlate Law Commission Secretaries of Central Government "ard:

Government.

Ste D Gn bo constructed for carrying: passenge they are fare paving or. otherwis C', ey, that the insurance..C ampanies who have a public . t . i educate.thé owners of motor vehicles on SLCh per passenger, a total sum of ASRS Claimants and when in the third party claims. the Insurance Company is made compul absolutely no reason to make a distinction ber ween suen third party claims and- present nature when fhe -nen-fare. "pays re PAaSSeneers are @lso in EPre parties but in fact 4 Lnew carat wesc. called Because the Supreme Court of india fas descr ibed them as of third parties. (See. ORIENTAL INSURANCE pony tel eo Now! CO., LTD. vs. "SUDIAKARAN Kv AND OTHERS (2008 ACT 204 3), UNITE D INDIA INSURANCE CO., LTD., SHIMLA. vs: TAK SINGH AND OTHERS (AIR 2006 "se sre), GENERAL MANAGER, UNITED mt iA INSURANCE CO., LTD. VS. M.LAXMT AND OTHERS (2009 ACJ 104), NEW IN DIA ASSUR 2RANCE CO. LTD. VS. ASHA RANI AND OTHERS (2003 ACY 1). But. otherwise perhaps heey cCourd Nave been termed as third parties and ~ A Ee yUired lo pay attention and Aet. a Phe legislature should ensure that the definitiom of Lhird party iS statutorily defined inthe m : ote il fare of Stich situations so that itacit font _definiteds care of all such claims and the purpose ack patent of making insurance t Claims compulsory is awarded. by the Tribunal to be deposited by the H ao. a LO 2014 POToGO2 / 201) Ly Ry Py H q Q gq PE POOQO/2OT | bO)1S9S/2011, bO1LSees2o01] i a ee & Se Se vive for dismissed.

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Karnataka High Court