Tripura High Court
The National Insurance Company Limited vs Claimant-Respondents on 16 June, 2017
Author: S. Talapatra
Bench: S. Talapatra
IN THE HIGH COURT OF TRIPURA
AGARTALA
MAC APP No.60 of 2014
MAC APP No.62 of 2014
In MAC APP No.60 of 2014
Appellant:
The National Insurance Company Limited,
represented by its Divisional Manager,
Agartala Divisional Office,
Akhaura Road, P.S. West Agartala,
District: West Tripura,
[Insurer of vehicle bearing No.AS-01Y-
7379-Bus]
-V E R S U S-
Claimant-Respondents:
1. Smti Swapna Deb (Laskar),
wife of late Nirmal Chandra Laskar @
Nirmal Laskar
2. Miss Debjani Laskar,
daughter of late Nirmal Chandra Laskar
@ Nirmal Laskar
-both are residents of village:Bordowali,
North Badharghat, P.O. Agartala,
P.S. West Agartala,
District: West Tripura
Owner-Respondent:
3. Sri Tinku Ghosh,
son of late Nanda Lal Ghosh,
care of Sherowali Tours & Travels,
at present Sherowali Sweet Shop,
Laxmi Narayan Bari Road,
Agartala, P.O. Agartala,
P.S. West Agartala,
District: West Tripura
[Owner of vehicle bearing No.AS-01Y-
7379-Bus]
For the appellant : Mr. P. Gautam, Advocate
For the respondents
No. 1 & 2 : Mr. Sougata Dutta, Advocate
For the respondent
No.3 : Mr. R. Dutta, Advocate
In MAC APP No.62 of 2014
Appellant:
The National Insurance Company Limited,
Udaipur Branch, Udaipura,
represented by its Divisional Manager,
Agartala Divisional Office,
Akhaura Road, P.S. West Agartala,
District: West Tripura,
[Insurer of vehicle bearing No.AS-01Y-
7379-Bus]
-V E R S U S-
Claimant-Respondents:
1. Smti Durgati Jamatia,
wife of late Bishnu Kishore Jamatia
2. Smti Hamari Jamatia (Minor),
daughter of late Bishnu Kishore Jamatia
3. Smti Bishnulakshi Jamatia,
daughter of late Debkishore Jamatia
4. Smti Sukla Devi Jamatia,
daughter of late Debkishore Jamatia
-all are residents of village: Dalak
Colony, Amarpur, P.O. Amarpur, P.S.
Birganj, District: Gomati Tripura
[The claimant-respondent No.2 being
the minor daughter of the deceased is
represented by her mother the claimant-
respondent No.1]
MAC APP No.60 of 2014 & MAC APP No.62 of 2014
Page 2 of 9
Owner-Respondent:
5. Sri Tinku Ghosh,
son of late Nanda Lal Ghosh,
care of Sherowali Toura & Travels,
Laxmi Narayan Bari Road,
Agartala, P.O. Agartala,
P.S. West Agartala,
District: West Tripura,
[Owner of vehicle bearing No.AS-01Y-
7379-Bus]
For the appellant : Mr. P. Gautam, Advocate
For the respondents
No.1-4 : Mr. A. Pal, Advocate
For the respondent
No.5 : Mr. R. Dutta, Advocate
BEFORE
THE HON'BLE MR. JUSTICE S. TALAPATRA
Date of hearing & delivery of
judgment and order : 16.06.2017
Whether fit for reporting : YES
JUDGMENT & ORDER (ORAL)
Heard Mr. P. Gautam, learned counsel appearing for the appellant as well as Mr. R. Dutta, Mr. Sougata Dutta and Mr. A. Pal, learned counsel appearing for the respondents. [2] By these appeals being MAC APP No.60 of 2014 [National Insurance Company Limited vs. Smti. Swapna Deb Laskar and two others] and MAC APP No.62 of 2014 [National Insurance Company Limited vs. Smti. Durgati Jamatia & 4 others] the appellant, the National Insurance Company Limited has fundamentally raised the challenge on the basis that the insurer MAC APP No.60 of 2014 & MAC APP No.62 of 2014 Page 3 of 9 cannot be saddled with any liability beyond what is covered by the relevant insurance policy.
[3] In MAC APP No.60 of 2014 the judgment and award dated 06.03.2014 delivered in T.S.(MAC) 50 of 2013 by the Motor Accident Claims Tribunal, West Tripura, Agartala] has been questioned whereas in MAC APP No.62 of 2014, the judgment and award dated 16.01.2014 delivered in T.S.(MAC) 219 of 2012 passed by the Motor Accident Claims Tribunal, South Tripura, Udaipur, as it then was has been questioned on the same premise, as stated before. In those claim petitions filed under Section 166 of Motor Vehicles Act, compensation was sought for death of one Sri Nirmal Chandra Laskar alias Nirmal Laskar [in T.S. (MAC) 50 of 2013] and one Sri Bishnu Kishore Jamatia [in T.S. (MAC) 219 of 2012] in the same accident involving the same vehicle bearing No.AS-01Y-7379 (Bus) which met the said accident on 08.08.2012 at about 0500 a.m. for negligent driving, resulting in roll-down of the said vehicle to a gorge at Tongseng (NH-44) District: East Jaintia Hills, Meghalaya. [4] According to Mr. P. Gautam, learned counsel appearing for the appellants, the vehicle involved in the said accident bearing registration No.AS-01Y-7379 (Bus) was registered to carry maximum 38 passengers and the driver. Hence, the liability of the insurer for any damage arising out of use of the said bus is limited to 39(thirty nine) persons as the MAC APP No.60 of 2014 & MAC APP No.62 of 2014 Page 4 of 9 passenger and driver excluding the third party risks. According to Mr. Gautam, learned counsel, it is apparent from the First Information Report (FIR) filed by one Dipankar Ghosh that 28(twenty eight) passengers died on the spot and 27(twenty seven) passengers including the driver sustained injuries. Thus, the total victim of the said accident prima facie appears to be 55(fifty five). The insurer, the appellant herein, is liable to indemnify only up to 39(thirty nine) persons. But without any determination of the liability in respect of its extent the tribunal has directed the Insurance Company to pay the award. If in the similar manner the Insurance Company is saddled with the liability, then the Insurance Company would be compelled to pay beyond what the Insurance Company is liable to pay, as there is an admitted extent of the liability of paying the award.
Out of the same accident, another appeal had been filed by the present appellant. The said appeal being MAC APP No.06 of 2015 [National Insurance Company Limited vs. Shri Ashis Ghosh & 4 others] has been disposed of by this court by the judgment and order dated 24.04.2017. The said appeal was as well concerned with the same accident which occurred on 08.08.2012 at about 05.00 hours at Tongseng, on National Highway No.44 under Khliehriat Police Station, District: East Jaintia Hills, Meghalaya involving the same vehicle bearing No. AS- 01Y-7379 (Bus). The said appeal arose for death of one of the victims in the said accident. The said appeal was preferred on the MAC APP No.60 of 2014 & MAC APP No.62 of 2014 Page 5 of 9 similar ground as stated above. By the said judgment dated 24.04.2017, this court had occasion to observe as under:
"8. In view of the above observations, the only question that is left for decision by this court in all these appeals is what has been formulated above [para-4]. Mr. Lodh, learned counsel appearing for the appellants has fairly submitted that even though, there is a breach of the condition as the insurer of the said offending vehicle they cannot avert the liability of payment of in respect of the passengers within limit and the driver-workman whom the insurance policy covered. Thus, according to Mr. Lodh, learned counsel 39 person [passengers + driver] are contractually covered by the policy. But the insurer-appellant are not liable to pay beyond that. If it happened that the claims are raised in respect of all the persons who died or received injuries in the said accident, the liability would involve for more than 39 persons. He has thus categorically stated that the insurance company cannot be saddled with the said liability which is not contractually permitted. In support of that Mr. Lodh, learned counsel has referred a decision of the apex court in National Insurance Co. Lt. versus Anjana Shyam and Others reported in 2007 AIR SCW 5237 where the law has been enunciated to resolve this complex issue in the following manner :
"16. Then arises the question, how to determine the compensation payable or how to quantify the compensation since there is no means of ascertaining who out of the overloaded passengers constitute the passengers covered by the insurance policy as permitted to be carried by the permit itself ? As this court has indicated, the purpose of the Act is to bring benefit to the third parties who are either injured or dead in an accident. It serves a social purpose. Keeping that in mind, we think that the practical and proper course would be to hold that the insurance company, in such a case, would be bound to cover the higher of the various awards and will be compelled to deposit the higher of the amounts of compensation awarded to the extent of the number of passengers covered by the insurance policy. Illustratively, we may put it like this. In the case on hand, 42 passengers were the permitted passengers and they are the ones who have been insured by the insurance company. 90 persons have either died or got injured in the accident. Awards have been passed for varied sums. The Tribunal should take into account, the higher of the 42 awards made, add them up and direct the insurance company to deposit that lump sum. Thus, the liability of the insurance company would be to pay the compensation awarded to 42 out of the 90 passengers. It is to ensure that the maximum benefit is derived by the insurance taken for the passengers of the vehicle, that we hold that the 42 awards to be satisfied by the insurance company would be the 42 awards in the descending order MAC APP No.60 of 2014 & MAC APP No.62 of 2014 Page 6 of 9 starting from the highest of the awards. In other words, the higher of the 42 awards will be taken into account and it would be the sum total of those higher 42 awards that would be the amount that the insurance company would be liable to deposit. It will be for the Tribunal thereafter to direct distribution of the money so deposited by the insurance company proportionately to all the claimants, here all the 90 and leave all the claimants to recover the balance from the owner of the vehicle. In such cases, it will be necessary for the Tribunal, even at the initial stage, to make appropriate orders to ensure that the amount could be recovered from the owner by ordering attachment or by passing other restrictive orders against the owner so as to ensure the satisfaction in full of the awards that may be passed ultimately."
9. Mr. Lodh, learned counsel has further relied on a decision of the apex court in Sunil Sharma and Ors. versus Bachitar Singh reported in 2011 AIR SCW 2811. In order to counter the submissions of Mr. Lodh, learned counsel appearing for the appellants, Mr. Das, learned counsel has referred a decision of the Gauhati High Court in National Insurance Company Limited versus Samina Begum and Others reported in (2013) 3 GLR 349 where the Gauhati High Court has laid down the law as under :
"13. On aggregate consideration of the materials as available in the records and as scrutinized by this court as well as on appreciation of the contentions by the counsel of the parties, this court has no hesitation to hold that the appellant shall pay the awarded sum to the claimant-respondent forthwith on deducting the sum, if any, that has been paid by this time.
It is further held that after adjudication of the claim petitions as referred in Ext. C and D document, if it is found that the claims of the passengers are more than 34, then the insurance company would be at liberty to recover the rateable proportion as per the clause as extracted from the India Motor Tariff from the insured, owner of the vehicle under section 174 of the Motor Vehicles Act and for that purpose the appellant shall furnish copies of the judgment and award before the Tribunal for due examination. It is made clear that the award has to be satisfied by the appellant in all the cases initially and only thereafter they would be at liberty to realize the rateable proportion if it is found that the passengers who fell victim to the said accident were more than 34(thirty four)."
10. Mr. B. Debnath and Mr. D.C. Ray, learned counsel appearing for the claimant-respondents in other 2(two) appeals have expressed that there is no record in the evidence to show how many claims have been raised by the victims of the said accident, even if, hypothetically it is assumed that the claimants would be beyond 39 then also according to the learned counsel appearing for the MAC APP No.60 of 2014 & MAC APP No.62 of 2014 Page 7 of 9 claimant-respondents, the Insurance Company Limited cannot initially avert their liability inasmuch as in United India Insurance Co. Ltd. versus K.M. Poonam & Ors., reported in 2011 AIR SCW 2802 the apex court has observed as under :
"24. The liability of the insurer, therefore, is confined to the number of persons covered by the insurance policy and not beyond the same. In other words, as in the present case, since the insurance policy of the owner of the vehicle covered six occupants of the vehicle in question, including the driver, the liability of the insurer would be confined to six persons only, notwithstanding the larger number of persons carried in the vehicle. Such excess number of persons would have to be treated as third parties, but since no premium had been paid in the policy for them, the insurer would not be liable to make payment of the compensation amount as far as they are concerned. However, the liability of the Insurance Company to make payment even in respect of persons not covered by the insurance policy continues under the provisions of sub-section (1) of Section 149 of the act, as it would be entitled to recover the same if it could prove that one of the conditions of the policy had been breached by the owner of the vehicle. In the instant case, any of the persons travelling in the vehicle in excess of the permitted number of six passengers, though entitled to be compensated by the owner of the vehicle, would still be entitled to receive the compensation amount from the insurer, who could then recover it from the insured owner of the vehicle."
11. Having considered the rival contentions as raised by the learned counsel for the parties, this court is of the view that the basic liability of the Insurance Company is limited to the highest awards till the first 39 awards meaning all the highest awards would be added for having the basic liability of the Insurance Company. If the awards were beyond the limit of liability, the initial liability of the Insurance company would be to satisfy the said additional awards but at the same time, the Insurance company shall remain entitled to recover the said additional amount from the owner by a certificate proceeding under Section 174 of the Motor Vehicles Act without instituting any suit."
[5] In the similar terms these appeals are also disposed without any interference, but subject to the following observation:
"...the basic liability of the Insurance Company is limited to the highest awards till the first 39 awards meaning all the highest awards would be added for having the basic liability of the Insurance Company. If the awards were beyond the limit of liability, the initial liability of the Insurance company would be to satisfy the said additional awards but at the same time, the Insurance MAC APP No.60 of 2014 & MAC APP No.62 of 2014 Page 8 of 9 company shall remain entitled to recover the said additional amount from the owner by a certificate proceeding under Section 174 of the Motor Vehicles Act without instituting any suit."
[6] Mr. P. Gautam, learned counsel appearing for the appellants has submitted that the appellant has deposited the entire amount in the Registry in terms of order. However, if any amount is liable to be paid by the Insurance Company even thereafter, the same shall be paid within a period of 2(two) months from the day when the appellant shall received a copy of this order in the tribunal below. The claimant-respondents shall be entitled to withdrawal and management of the award in terms of the judgment and award dated 06.03.2014 delivered in T.S.(MAC) 50 of 2013 [related to MAC APP No.60 of 2014] and judgment and order dated 16.01.2014 delivered in T.S.(MAC) 219 of 2012 [related to MAC APP No.62 of 2014].
Draw the award accordingly.
Transmit the LCRs thereafter.
A copy of this order be supplied to the parties.
JUDGE Moumita MAC APP No.60 of 2014 & MAC APP No.62 of 2014 Page 9 of 9