Fatik Chandra Bora v. Milan Baroi and another — 1980 DIGILAW 6 (GAU)

Judgement LAHIRI, J. :- This is an appeal by the owner of a passenger bus No. ASN 1681 questioning the legality of the apportionment of the compensation awarded by the Member, Motor Accident Claims Tribunal, Nowgong, for short "the Tribunal" in M.A.C. Case No. 13 of 1974. 2. The appellant, owner of the vehicle claims that at all relevant time the bus was insured with the New Great insurance Company of India Ltd., which on merger is styled as "The Oriental Fire and General Insurance Company", Respondent No. 2. It is indubitable that the policy of insurance was a policy which covered against any liability up to Rs. 50,000 which might be incurred by the owner in respect of the death or bodily injury to any person caused by or arising out of the use of the vehicle in a public place. 3. The appellants vehicle driven at high speed caused a run-down accident resulting in instantaneous death of a poor labourer, Munindra Baroi. His wife respondent No. 1, for her and on behalf of her four minor children preferred a claim for compensation before the Tribunal. Opposite parties were duly notified. They appeared and submitted their say in the form of written statements, issues were framed, evidence recorded and by a reasoned judgement the learned Tribunal arrived at the conclusion that the respondent No. 1 - Smt. Milan Baroi and the four minors entitled to compensation of Rs. 35,000. He determined all the issues in favour of the claimant. The operative part of the award reads as under :- "As per discussion above, an award of Rs. 35,000 is awarded to the claimant out of which Rs. 10,000 shall have to be paid by the owner of the vehicle Phatic Bora and the balance of Rs. 25,000 shall have to be paid by O.P. No. 2, the Insurance Company......" (Emphasis added). 4. The owner of the bus being aggrieved by the under-scored portion of the award has preferred the appeal and questioned the validity of the apportionment. Mr. Jitendra Nath Sarma learned counsel for the appellant submits that under the terms of the policy of Insurance, the insurer was liable to pay a sum of Rs. 50,000 in respect of any such accident. Mr. Jitendra Nath Sarma learned counsel for the appellant submits that under the terms of the policy of Insurance, the insurer was liable to pay a sum of Rs. 50,000 in respect of any such accident. In the absence of any special reasons the learned Tribunal acted illegally in adopting a method contrary to the terms of the policy of insurance, when the Insurer (respondent No. 2) was obliged to indemnify the entire liability of the owner. In view of the stipulation in the policy of Insurance, the insure was bound to indemnify any liability up to Rs. 50,000 in respect of the death of Munindra arising out of the use of the vehicle. The entire liability is on the Insurer (respondent No. 2). The second limb of argument is that in view of the provisions contained in Ss 95 (1) (b) (i) and 95 (2) (b) (i) of the Motor Vehicles Act, 1939, hereinafter referred as "the Act", it is the liability of the Insurer to pay up the entire claim awarded. To bear up the argument the learned counsel relies on Rameswar Hazarika v. Promode Kanta Barua, Assam LR (1972) Assam and Naga 42 (48) (LB). 5. The policy of Insurance has been produced before us by the learned counsel for the appellant, we have perused the same. It has been inspected by Mr. S.S. Sharma, learned counsel for the respondent-insurer who admits it to be the policy. The learned counsel for the respondent submits that the insurer has no copy with it. On a bare perusal of "the policy" we find that the bus in question was insured with respondent No. 2. The period of insurance covered the period commencing from 20-10-73 to 19-10-74. The accident happened on 9-6-74. We also find that the Insurer is liable to indemnify the owner to the extent of Rs. 50,000 in respect of the death or bodily injury to any person caused by or arising out of the use of the vehicle. Therefore, we have no hesitation in coming to the conclusion that respondent No. 2 -the Insurer has had the contractual liability to indemnity the owner, against any liability arising out of any accident within the period of insurance in respect of the death of any persons caused by or arising out of the use of the vehicle, up to Rs. 50,000. 50,000. In this view of the matter it is the Insurer who is liable to indemnify the entire claim. The purpose of insurance will be frustrated ii the owner is called upon to pay compensation not withstanding, the policy of insurance. Any other direction would amount to alteration of the terms of the "contract of insurance" without any sanction of law and/or to create a new contract not agreed upon by the parties. In the result we hold that the Insurer (respondent No. 2) is liable to pay the entire compensation amounting to Rs. 35,000 payable to the claimant-respondent No. 1. The owner of the bus has no liability whatsoever to make the payment. Be that as it may, we find that the principles governing the obligations as set out above have been incorporated in Section 95(1)(b)(i) read with S.95(2)(b)(i) of the Motor Vehicles Act, 1939. Sections 95(1)(b)(i) and 95(2)(b)(i) read as follows :- "95. Requirements of policies and limits of liability - (a) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which- * * * (b) insures the person or classes of persons specified in the policy to the extent specified in Sub-Section (2) - (i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place; * * * 95(2). Subject to the proviso to Sub-Section (1), a policy of insurance shall cover any liability incurred in respect of any one accident up to the following limits, namely :- (a) * * * (b) where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment- (i) in respect of persons other than passengers carried for hire or reward; a limit of fifty thousand rupees in all." 6. It will be seen that there is a statutory obligation of an owner to insure a vehicle against third party risk. It will be seen that there is a statutory obligation of an owner to insure a vehicle against third party risk. S.95(1) requires that the policy must cover person or classes of persons to the extent specified in S.95(2) against any liability which may be incurred by the insured in respect of "the death or bodily injury to any person caused by or arising out of the use of the vehicle in a public place". Under Section 95(2) of "the Act" the limit of liability in respect of a third party is Rs. 50,000 in all, in any one accident. The accident happened in a public place. The death was caused or arose out of the use of the vehicle. The vehicle was insured with respondent No. 2. The policy of insurance clearly shows that the Insurer was to indemnify the liability of the owner up to Rs. 50,000 in such circumstances. Therefore, we have no hesitation to hold that respondent No. 2 is bound to pay the compensation of Rs. 35,000 awarded and the appellant has no liability to pay any part thereof. In Rameswar Hazarika (Assam LR (1972) Assam and Naga 42) (supra) it has been held that it is the liability of the Insurer to pay such compensation within the limits of the statutory liabilities fixed under Sections 95 and 96 of "the Act". It has been held that where a passenger vehicle causes accident resulting in the death of a pedestrian, the liability to pay the compensation is of the Insurer and not upon the insured, as enjoined in Section 95 of "the Act". We respectfully agree with the view expressed and hold that in the present case the entire amount of Rs. 35,000 as awarded by the learned Member, Motor Accident Claims Tribunal; Nowgong shall be paid by respondent No. 2 (M/s. Oriental Fire and General Insurance Company). We hold that the owner-appellant has no liability to pay the amount. Accordingly, we modify the award and direct that the entire amount of Rs. 35,000 shall be paid by respondent No. 2-the Insurer to the claimant-appellant. 7. Mr. B.M. Goswami, learned counsel for the claimant submits that only Rs. 25,000 has been deposited by the Insurer into the Tribunal. We direct respondent No. 2 to deposit the balance amount of Rs. Accordingly, we modify the award and direct that the entire amount of Rs. 35,000 shall be paid by respondent No. 2-the Insurer to the claimant-appellant. 7. Mr. B.M. Goswami, learned counsel for the claimant submits that only Rs. 25,000 has been deposited by the Insurer into the Tribunal. We direct respondent No. 2 to deposit the balance amount of Rs. 10,000 within two months from today, into the Tribunal, and the appellant shall be entitled to withdraw the amount. Appellant-claimant shall be entitled to take necessary steps to recover the amount in question if it is not deposited within two months. The amount of Rs. 25,000 shall remain so deposited in Bank as ordered by the learned Tribunal. The minors shall be entitled to withdraw proportionate amounts on attaining majority. However, in the meantime the respondent No. 1 mother of the minors may take necessary steps collect the interest accrued and utilise it for education and welfare of the minors. On default to deposit the amount within two months respondent No. 2 shall be liable to pay interest at the rate of 12% per annum. 8. In the result the appeal is allowed to the extent indicated above. In the facts and circumstances, we make no order as to costs. N.I. SINGH, J. :- I agree. Appeal allowed. AIR 1980 GAUHATI 76 "Jamini Mohan v. Niranjan Das" GAUHATI HIGH COURT Coram : 1 K. LAHIRI, J. ( Single Bench ) Jamini Mohan Das, Petitioner v. Niranjan Das and others, Respondents. Civil Rule No. 82 of 1980, D/- 8 -5 -1980.* Motor Vehicles Act (4 of 1939), S.48, S.134(1)(A) - LEGAL REPRESENTATIVES - RES JUDICATA - DECREE - Grant of permit erroneously by Regional Transport Authority - Owner purchasing vehicle on that basis - Cancellation of permit is appeal - Owner put to loss - R.T.A. should rectify it by granting suitable permit on another route. Where an owner of a bus, who was eligible for grant of permit and who purchased it only after a periodic transport permit was granted to him by the Regional Transport Authority, was put to an irrepairable loss because of the cancellation of his permit by the appellate authority on ground that the order of the lower authority was erroneous, it was the prime obligation of the Regional Transport Authority to rectify its error by granting him any sort of permit so that the bus can he used for gainful purposes. (Para 6) The Regional Transport Authority should be very careful and diligent while granting permits and specially when they grant permit to a person having no vehicle. An erroneous grant to such a person would mean crippling and perilous shock and loss to him. Once a permit is granted and on its basis a person purchases a vehicle, the appellate authority should very carefully and minutely consider this fact. Other things being near equal allotation of his permit should not be disturbed by the Appellate Authority. The Appellate Authority should not and more correctly the Parliament had not authorised it to grant new permits during the pendency of an appeal. (Para 4) B.K. Das, and B. Banerjee, for petitioner; Government Advocate Assam, S.N. Bhuyan, A.K. Bardoloi, D.P. Chaliha, B.D. Agarwal and B.C. Dutta, for Respondents. *Against judgement and order of G. Hussain, Presiding Officer, State Transport Appellate Tribunal, Assam, Gauhati, D/- 17-12-1979. Judgement The petitioner ran neck to neck and lost it by a photo-finish, to get a periodic transport permit. The findings of the appellate authority slightly titled in favour of Respondent No. 1. It shows that the petitioner is also not an unfit person to get a permit. However, the quota of permits being fixed the petitioner cannot be accommodated although it cannot be said that he is not a deserving person to get a permit in future. In short, these are the contentions of the learned counsel for the petitioner to which I entirely agree. 2. The main grievance of the petitioner is that for a mistake or error of judgement of the Regional Transport Authority the petitioner has suffered a great set back. He purchased vehicle worth about Rupees 1 lakh, placed it on road, but ultimately lost in the appellate tribunal. 3. 2. The main grievance of the petitioner is that for a mistake or error of judgement of the Regional Transport Authority the petitioner has suffered a great set back. He purchased vehicle worth about Rupees 1 lakh, placed it on road, but ultimately lost in the appellate tribunal. 3. Similar sad incidents are on the rise in the field of allotment of permits and in particular by the State Transport Appellate Tribunals in Assam. 4. Before considering the question of grant of permits, the Regional Transport Authority should very seriously exercise their minds as to the relevant materials necessary to grant permit. They should very carefully and diligently examine and reflect the respective merits and demerits of the applicants. If these are not done and a hasty order is made by Regional Transport Authority and a person obtains a permit for the first time and on the strength thereof the purchases a valuable property worth a lakh and then fails in appeal, the person sustains a perilous and crippling shock and loss. Hence, allotment of such permits calls for utmost exercise and consideration by the Regional Transport Authorities, while granting permits to persons having no vehicle. Once a permit has been granted and the permit holder purchases a new vehicle, the appellate authority should very carefully consider this fact very minutely. Other things being near equal, allotation of his permit should not be disturbed by the Appellate Authority. The appellate Authority should not direct new permits during the pendency of an appeal. I have held in a recent decision that the appellate authority has no power to grant any permit in favour of an appellant whose application for grant of temporary permit has been rejected by the Regional Transport Authority. In my opinion, the same principle proprio vigore applies in the case of periodic permit, even if his case falls under Section 134(1)(A) of the Motor Vehicles Act, 1939, unless there are some compelling reasons. This is another reason why Parliament did not authorise the appellate authority to grant permit during the pendency of an appeal. If an appellant is granted a permit to run a vehicle during the pendency of an appeal and on the strength thereof he purchases a valuable vehicle worth well over a lakh and thereafter fails in appeal, it will result in perilous loss to him apart from mental shock. If an appellant is granted a permit to run a vehicle during the pendency of an appeal and on the strength thereof he purchases a valuable vehicle worth well over a lakh and thereafter fails in appeal, it will result in perilous loss to him apart from mental shock. The valuable vehicle will remain idle without any use as without some sort of permit no transport vehicle can be profitably put on the road. 5. In the instant case, the petitioner for no fault of his, is prejudiced and adversely affected by turn of events. The none-too-happy order of the Regional Transport Authority has been rightly set aside by the State Transport Appellate Tribunal, Gauhati, but the bus of the petitioner is on the jacks or idling inside a garage, A huge capital is blocked. It is too much a stress and strain on a common Indian. I was tempted to quash the order of the Appellate Tribunal but the resultant effect, would cause similar hardship to Respondent No. 1 as he has purchased a similar vehicle on the authority of the appellate order. 6. It has been rightly contended by the petitioner that the present precarious condition of the petitioner is the indirect consequence of an irregular order rendered by the Regional Transport Authority. Now, it is the turn of the Regional Transport Authority to rectify its own error by way of making some provision so that the vehicle can be used or put on any route for gainful purposes. I feel that it is the prime obligation of the Regional Transport Authority to find out ways and means to allot necessary permit, periodic or temporary, to the petitioner and/or his son, who is stated to be a competent motor driver. The permit may be allotted in any other nearby route as well. 7. As the learned counsel for the petitioner has very rightly not contested the decision on any other ground, I propose not to saddle the petitioner with any cost. 8. With the above observations. I dismiss the application. The Rule issued is discharged. There will be no order as to costs. 9. Let a copy of this order be sent to the Regional Transport Authority, Nowgong for doing the needful, as prayed for by the learned counsel for the petitioner. Application dismissed.