Kerala High Court
Oriental Insurance Co. Ltd. vs Daniel on 29 November, 1999
Equivalent citations: 2000ACJ1391
Author: G. Sivarajan
Bench: G. Sivarajan
JUDGMENT P.A. Mohammed, J.
1. These three appeals are directed against the common award in O.P. (M.V.) Nos. 681, 682 and 683 of 1988 of the M.A.C. Tribunal, Ernakulam respectively. The common appellant herein is Oriental Insurance Co. Ltd., who is the respondent No. 3 in all the claim petitions before the Tribunal. The claimants in the above petitions are persons who sustained the personal injuries in the motor accident occurred on 13.12.1987 near Cochin Naval Base. Respondent No. 1 in all the appeals is the claimant. Likewise respondent Nos. 2 and 3 are the owner and driver of the jeep involved in the accident. The claimants were the persons who travelled in the jeep on the invitation extended to them by its owner and driver.
2. The Tribunal after the enquiry found that the accident occurred due to rash and negligent driving of the respondent No. 3 driver. It further found that the injured persons were gratuitous passengers and, therefore, the decision of the Orissa High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Sanatan Pradhan 1988 ACJ 792 (Orissa) and the decision of this court in M.F.A. No. 156 of 1988 would apply. That means the insurer was liable to indemnify the owner of the vehicle in respect of the compensation awarded.
3. Number of appeal, number of claim petition, amount of compensation claimed and amount of compensation awarded are tabulated hereunder:
Appeal No. Claim Petition No. Amount claimed Amount awarded M.F.A. 467 of 1991 OP (MV) 681 of 1988 Rs. 35,000 Rs. 24,500 M.F.A. 468 of 1991 OP (MV) 682 of 1988 Rs. 15,000 Rs. 11,650 M.F.A. 469 of 1991 OP (MV) 683 of 1988 Rs. 12,000 Rs. 4,750
4. The main contention of the counsel for the appellant is that Exh. B1 policy in respect of the offending vehicle does not cover the risk of 'gratuitous passengers' and hence the insurance company is not liable to indemnify the owner of the vehicle. The argument is that under Section 95 of the Act a policy is required to cover only against a death or bodily injury of a passenger in a public service vehicle and not a private vehicle just as the one involved in this case. In support of the said contention counsel places reliance on the decision of the Supreme Court in Pushpabai Purshottam Udeshi v. Ranjit Ginning & Pressing Co. 1977 ACJ 343 (SC). Counsel also challenged the finding of the Tribunal that gratuitous passenger travelling in the vehicle involved in the accident will bea third party within the meaning of the policy.
5. The Tribunal had relied on the decision of the Division Bench of this court in M.F.A. No. 156 of 1988 wherein it has been observed thus:
Before the Tribunal, the appellant insurer disclaimed the liability on a different ground, namely, that the claimant is a gratuitous passenger and so the insurer is not liable. The Tribunal relied upon the decision reported in AssamCorporation v. Binu Rani Ao, 1974 ACJ 381 (Assam & Nagaland), and held that gratuitous passenger travelling in a motor vehicle involved in the accident will be a third party within the meaning of policy of insurance covering third party risks and so the insurer is liable to indemnify the owner. We are of the view that the said reasoning and conclusion of the Tribunal are justified.
(Emphasis supplied) In AssamCorporation's case (supra), the Division Bench of the Assam & Nagaland High Court has held that a gratuitous passenger travelling in a motor vehicle involved in the accident would be a third party within the meaning of an insurance policy covering third party risk.
6. In Pushpabai's case 1977 ACJ 343 (SC), which was decided by the Supreme Court on 25.3.1977, the Supreme Court negatived the plea that the words 'third party' are wide enough to cover all persons except the person insured and insurer as the insurance cover is not available to the passengers. This decision was of course noticed by the Supreme Court in a later decision in Amrit Lal; Sood v. Kaushalya Devi Thapar 1998 ACJ 531 (SC) and distinguished on facts. In that case the Supreme Court held:
The expression 'any person' would undoubtedly include an occupant of the car who is gratuitously travelling in the car.
The court further said:
In so far as gratuitous passengers are concerned there is no limitation in the policy as such. Hence, under the terms of the policy, the insurer is liable to satisfy the award passed in favour of the claimant.
7. The Tariff Advisory Committee, a statutory body on 13.3.1978 issued instructions requiring the insurance companies to mandatorily incorporate a clause in the insurance contract reading "death of or bodily injury to any person including occupants carried in the motor car provided that such occupants are not carried for hire or reward". The above instructions were brought into force with effect from 25.3.1977, the date on which the Supreme Court pronounced judgment in Pushpabai's case, 1977 ACJ 343 (SC). In this context, it has to be observed that the Tariff Advisory Committee had stated that "all existing policies should be deemed to incorporate this amendment automatically". That means the instructions of the Committee would apply to all existing policies whether it may be an 'Act policy' or 'a comprehensive policy'.
(Emphasis supplied)
8. With regard to the liability of third parties, Exh. B1, the policy contains the following provision:
Subject to the limit of liability as laid down in the Motor Vehicles Act the company will indemnify the insured in the event of accident caused by or arising out of the use of the motor vehicle in a public place in India within the meaning of the Motor Vehicles Act, 1939 against such amount as is necessary to meet the requirements of the Motor Vehicles Act, 1939 including claimants' cost and expenses which the insured shall become legally liable to pay in respect of death of or bodily injury to any person and/or damage to any property of third party.
In this context, it may be noticed that the appellant has not pleaded the extent of its liability for indemnification. As evident from Exh. B1, the policy involved in this case is a statutory policy. Therefore, the insurer is liable to satisfy the third party victims whose interest is protected by the statute.
9. Even assuming that the limit of liability is Rs. 15,000, the amounts awarded in two claim petitions do not exceed the said limit. In one claim petition, the amount awarded exceeds the said limit by about Rs. 10,000. In the absence of pleading by the insurer we decline to pass any order in that behalf.
In view of the reasons stated above, we do not propose to interfere with the award passed by the Tribunal. The appeals are accordingly dismissed.