Shakuntla v. United India Insurance Company — 1988 DIGILAW 673 (RAJ)

K.S. LODHA, J.—This misc. appeal has been filed by claimants Smt. Shakuntala and Raghunath Rai, mother and father respectively of the deceased Kuldeep who had died in a motor accident against the United India Insurance Company (hereinafter referred to as the Insurance Company) challenging the award of the Motor Accidents Claims Tribunal, Jodhpur (for short the Tribu-nal) dated 14,3.83, whereby, while awarding compensation to the appellants against the owner and driver of the vehicle, their claim has been rejected against the Insurance Company. They now claim that the award may be made against the Insurance Company also. 2. It is now not in dispute before me that Kuldeep son of the appellants, aged about 27 years, had died on account of a motor accident on March 31, 1979. The "motor vehicle, viz. three wheeler scooter, which belonged to Laxmi-narayan and which was being driven at the time of this accident by Champalal, had hit Kuldeep while he was going on the road towards Sojati Gate, Jodhpur on March 30, 1979 and that this accident was the result of rash driving of Champalal. Deceased Kuldeep was a Probationary Officer in the State Bank of India and was drawing Rs. 1460/- per month at the time when his life was, thus, cut short. The claimants being his mother and father respectively are entitled to compensation and after taking into account all the circumstances of the case, the Tribunal awarded a sum of Rs. 1,60,650/- to the claimants against Laxmi Narayan and Champalal owner and driver respectively of the aforesaid vehicle. However, the claim has been rejected so far as the Insurance Company is concerned. The question which falls to be decided in this appeal is whether the Insurance Company should also be held liable or riot. 3. In order to appreciate the question posed above, a few facts may be stated here. In the claim petition filed by Smt. Shakuntala and Raghunath Rai, in para 9(a), Champalal was stated to be the driver of the vehicle: viz, the three-wheeler No. RSQ 8525 and in para 9(b), Laxmi Narayan was said to be the owner thereof. In para 9(c), United India Insurance Co., (the present respondent) was mentioned to be the insurer of the said vehicle. The policy number and the date of the insurance have been mentioned as No. 381911 dated 23.5. 78. In reply to para 9, the non-petitioner no. In para 9(c), United India Insurance Co., (the present respondent) was mentioned to be the insurer of the said vehicle. The policy number and the date of the insurance have been mentioned as No. 381911 dated 23.5. 78. In reply to para 9, the non-petitioner no. 1, the owner of Laxmi Narayan, in para 2 of the reply, merely mentioned that para no. 8 and 9 of the claim petition do not call for any reply. He thereby impliedly admitted the averments made in para 9 of the claim petition. Non-petitioner no. 2, viz. Champalal (the driver) clearly admitted that the facts mentioned in para 9(a) were admitted. The rest of the para was denied for want of knowledge The Insurance Company (non-petitioner no. 3) in its reply dated 7. 4. 80 in para 8 thereof, stated that so far as para 9 of the claim petition is concerned, Champa Lal was the driver of this vehicle and Laxminarayan was the owner thereof. It was further added that vehicle was not insured with non-petitioner no. 3. It will be relevant to note that the whole reply is typed one and the word ^ugha* has been added in hand between the words ^ikl chfer* and ^djk j[kk gS*- It further appears that this reply of non-petitioner no. 3 was interpreted to be a reply in which the fact that the vehicle in question was insured with non-petitioner no. 3 at the relevant time. i.e. at the time of this accident, had not specifically been denied and was, therefore, taken to be impliedly admitted and that is why when issues were framed on 22.10.80, no issue was framed in this respect. The parties led their evidence. Claimant Raghunath Rai was examined on 21.2.81 and his three other witnesses were also examined on the same day. Thereafter, it appears that, while the case was pending for the claimants evidence, an application was filed on behalf of non-petitioner no. 3 on 24.4.82 that non-petitioners no. 1 and 2 may be directed to produce the insurance policy and the certificate of insurance pertaining to the period 12.5.78 to 11.5 79 along with the registration certificate of the three-wheeler No. RSQ 8525. It further appears that the certificate of insurance was filed on 19.6.80, but the other two documents were not filed. Then, an application was moved on behalf of non-petitioner no. 3. It further appears that the certificate of insurance was filed on 19.6.80, but the other two documents were not filed. Then, an application was moved on behalf of non-petitioner no. 3. under O. VI, r, 17, C.P.C for permission to amend para 3 of their reply by adding the fact that the Vehicle No. RSQ 8525 was not insured with non-petitioner no, 3 and the fact that Policy No. 381911 dated 23.5.78 was issued by non-petitioner-no. 3 was wrong and further that no policy of this kind was ever used to be issued by non-petitioner no. 3. It was also added that Vehicle No, RSQ 8525 was not insured with non-petitioner no. 3 on the date of the said accident and, therefore, non-petitioner no. 3 was not liable for any claim. This application was opposed by the present claimants and, ultimately, the learned Member of the Tribunal rejected the application by order dated 26.7.82. Shri Anil Bhandari was examin-ed on behalf of non-petitioner no. 3 and Laxminarayan was examined on behalf of non-petitioner no. 2. As already stated above the Tribunal has decreed the claim so far as owner and driver of the vehicle are concerned, but the claim against the Insurance Company was rejected because in the absence of the Insurance policy it was not established that as a matter of fact, Vehicle No. RSQ 8525 was insured with non petitioner no. 2 at the time of the said accident. While rejecting the claim against the Insurance Company, the learned Member of the Tribunal made certain adverse remarks with regard to the evidence of Anil Bhandari and the conduct of non-petitioner no. 3. All the same, the claim against non-petitioner no. 3 was rejected. 4. Aggrieved against the rejection of the claim against the Insurance Company, the claimants have come up in appeal. 5. During the pendency of this appeal, learned counsel for the claimants, submitted a certified copy of the registration certificate of the said three wheeler, and permission was granted to him under O. XLI, r. 27, C.P.C. to produce the same. When this registration certificate was thus brought on record, learned counsel for non-petitioner no. 3 (the present respondent) produced his true copy of the insurance policy relating to the said three wheelers and also moved an application under O. VI R. 17 CPC for amendment of the reply filed before the Tribunal. When this registration certificate was thus brought on record, learned counsel for non-petitioner no. 3 (the present respondent) produced his true copy of the insurance policy relating to the said three wheelers and also moved an application under O. VI R. 17 CPC for amendment of the reply filed before the Tribunal. By the proposed amendment, non-petitioner no. 3 wanted to introduce a plea that although the vehicle was insured with non-petitioner no. 3 at the relevant time, the driver who was driving the vehicle at the time of this incident was not in employ of the owner Laxmi Narain and, therefore, was not driving the vehicle under his direction or with his permission and, thus, the term of the policy that the vehicle would be driven either by the insured or by a driver who is in employ and driving under his direction or with his permission, has been violated and, therefore, the Insurance Company is not responsible for the claim. It was also added in the reply that the liability of Insurance Company was limited under sec. 95(2)(b)(i) of the Motor Vehicles Act (Act No. IV of 1939) (for short the Act). On this application, this Court, by its order dated 17-5-88 observed. "Mr. Bhansali has moved another application under Order 6 rule 17 read with section 151 Code of Civil Procedure. Mr. Purohit learned counsel submits that he does not object the request of Mr. Bhansali for permitting him to argue pleas available to him under section 95(2) of Motor Vehicle Act." The application of Mr. Bhansali under Order 6 rule 17 read with Section 151, CPC is accordingly disposed of Now the further dispute whether the vehicle in question was insured with the non-petitioner no. 3 at the time of the said accident stands resolved and after the copy of the policy being produced by respondent no. 3, there is no further dispute about this fact, 6. The contention of the learned counsel for the claimants-appellants is that when now it is not in dispute that the vehicle in question was insured with non-petitioner no. 3, the present respondent, the liability of the respondent is clearly established and the award should be made against respondent no. 3 also as has been made against non-petitioners no. 1 and 2, i e. the owner and the driver of the vehicle. Mr. 3, the present respondent, the liability of the respondent is clearly established and the award should be made against respondent no. 3 also as has been made against non-petitioners no. 1 and 2, i e. the owner and the driver of the vehicle. Mr. Bhansali appearing for the respondent (Insurance Company), however, urges that the liability of the respondent cannot be deter-mined merely because the copy of the insurance policy has been filed. He urges that he had aleady moved an application for amendment of the reply filed by the Insurance Company before the Tribunal and by way of that amendment, certain pleas available to the Insurance Company have been sought to be raised and when that application has been allowed, he should be permitted to amend the reply and then the matter may be sent back to the learned Tribunal to take evidence in respect of these pleas and then to decide the matter in accordance with law. Mr, Purohit has, of course, objected to this request and has urged that as a matter of fact, the proposed amendments have not been permitted to be made in the reply. All that has been allowed by order dated 17-5-88 to the respondent is that he can argue the pleas available to him under sec. 96(2) of the Act and further urged that the fact that Laxmi Narayan was the owner of the vehicle and Champalal was its driver at the relevant time had not been disputed by any of the non-petitioners before the Tribunal and the only plea raised by the present respondent was that the vehicle in question was not insured with it. Now, by asking for the proposed amendment, the respondent could not have been allowed to raise a plea quite inconsistent and contrary to the plea raised by it before the Tribunal and that is why the amendment has not been allowed and only the questions which the Insurance Company can raise under sec. 96 2) of the Act have been permitted to be argued before this Court and, therefore, also there is no question of remand in this respect. 7. It have given my careful consideration to the rival contentions. l am of the opinion that by order dated 17-5-88, only a limited permission had been granted to the respondent to urge the pleas available to it under see. 7. It have given my careful consideration to the rival contentions. l am of the opinion that by order dated 17-5-88, only a limited permission had been granted to the respondent to urge the pleas available to it under see. 95 2) of the Act, the amendment proposed by him as such has not been allowed nor a direction was given that this amendment shall be carried out in the reply.. No objection to this order appears to have been raised by the learned counsel for the respondent and, therefore, now he cannot be allowed to say that the amendment may be allowed and the matter may be remanded. All that can be done now is that after taking into consideration the copy of the insurance policy which has now been brought before this Court, the pleas available under sec. 96(1) of the Act to the Insurance Company may be allowed to be urged and decided. 8. Now, when the fact that the vehicle in question was insured at the relevant time is not in dispute, the plea sought to be raised by Mr Bhansali under sec. 96(2) is that according to the terms of this policy only the insured or any other person, provided he is in the insureds employ and is driving on his order or with his permission, could drive the vehicle and make the Insurance Company liable in case of any accident and if the vehicle was being driven by a person who was not the insured nor the insureds employee and was not-driving the vehicle on his order or with his permission, the insurance Company is not liable. In this connection, he pointed out that from the evidence of Laxminara-yan (D.W. 2) it Would be clear that Champalal, who was driving the vehicle at the time of the accident was not in his employment nor was he driving on the order of or with the permission of Laxmi Narayan, On the other hand, according to Laxminarayan, Champalal used to take the vehicle on hire @ Rs. 20/-per day from Laxminarayan and he states in unequivocal terms that Champalal was not his driver nor his employee. He did not pay any salary to him. He has also further stated that it was Champalal, who used to bear the expenses of petrol etc. of the three wheeler. It is, therefore, urged by Mr. 20/-per day from Laxminarayan and he states in unequivocal terms that Champalal was not his driver nor his employee. He did not pay any salary to him. He has also further stated that it was Champalal, who used to bear the expenses of petrol etc. of the three wheeler. It is, therefore, urged by Mr. Bhansali that the term of the policy referred to above has, thus, been violated and, therefore, the Insurance Company is not at all liable for the claim on a careful scrutiny of the contention raised by Mr. Bhansali. I am clearly of the opinion that it cannot be accepted. In the first place, the plea sought to be raised by him does not appear to fall within the four-corners of sec. 96(2) of the Act. Sec. 96 provides for duty of the insurer to satisfy judgments against persons insured in respect of third party risk and lays down certain conditions under which this liability can be enforced against the insurer. Sub-rule (2) of sec. 96 reads as under:— "(2). 96(2) of the Act. Sec. 96 provides for duty of the insurer to satisfy judgments against persons insured in respect of third party risk and lays down certain conditions under which this liability can be enforced against the insurer. Sub-rule (2) of sec. 96 reads as under:— "(2). No sum shall be payable by an insurer under sub-section (1) in respect of any judgment unless, before or after the commencement of the proceedings, in which the judgment is given, the insurer had notice, through the Court, of the bringing of the proceedings, or in respect of any judgment so long as execution is stayed thereon pending an appeal; and an insurer, to whom notice of the bringing of any such proceedings is so given, shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely.- (a) that the policy was cancelled by mutual consent or by virtue of any provision contained therein before the accident, giving rise to the liability, and that either the certificate of insurance was surrendered to the insurer or that the person, to whom the certificate was issued, has made an affidavit stating that the certificate has been lost or destroyed, or that either before or not later than fourteen days after the happening of the accident, the insurer has commenced proceedings for cancellation of the certificate after compliance with the provisions of section 105, or (b) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely- (i) a condition excluding the use of the vehicle- (a) for hire or reward, where the vehicle is, on the date of the contract of insurance, a vehicle not covered by a permit to ply for hire or reward, or (b) for organised racing and speed testing, or (c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a motor cycle; or (ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; (iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotion; or (c) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular." Mr. Bhansali wants to bring the case of the respondent under sub-clause (ii) of sub-sec. (2) of sec. 96 of the Act, and urges that as there was a provision in the insurance policy that it was the insured or any other person provided he is in the insureds employ and driving on his order or with his permission, who could drive the three wheeler, the Insurance Company can be made liable for any accident only if the driver of the vehicle at the time of the accident fell within the categories mentioned in these conditions and since Champalal does not fall within any of these categories, the Insurance Company cannot be held liable. However, in my opinion, according to sub-sec. (2)(ii) of sec. 96 of the Act, the condition which can be imposed in the insurance policy with regard to the driving of the vehicle is a limited condition and has clearly been specified in sub-cl. (ii) itself and the condition which goes beyond this clause cannot ensure for the benefit of the Insurance Company Under clause (ii) of sub-sec. (2) of s. 96, the condition can be one by which driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification are only to be excluded. The condition cannot be imposed that only the insured Or his employee, who drives on his order or with his permission will be driving the vehicle in order to "claim compensation on account of any accident in which the insured vehicle is involved. The term excluding driving by a named person or persons, goes to show that such condition must be a positive condition in respect of the named person or persons and a negative condition excluding persons other than the insured and any other person provid-ed he is in the insures employment and is driving on his order or with his permission is not envisaged by cl. (ii) of sub-sec. (2) of sec. 96 of the Act. I am, therefore, clearly of the opinion that this plea, sought to be raised by Mr. Bhansali, does not fall within the preview of sub-sec. (2) of sec. 96 of the Act. So far as the latter part of sub-sec. (2), clause (ii) of sec. (ii) of sub-sec. (2) of sec. 96 of the Act. I am, therefore, clearly of the opinion that this plea, sought to be raised by Mr. Bhansali, does not fall within the preview of sub-sec. (2) of sec. 96 of the Act. So far as the latter part of sub-sec. (2), clause (ii) of sec. 96 is concerned, that is not applicable because it is not urged that Champalal was not duly licenced or was disqualified. 9. Supposing for the sake of argument, it be hold that this condition falls within the purview of sub-see. (2), clause (b) of sec. 96 of the Act, then also on the facts of the case, I am not satisfied that this plea is available to non-petitioner no. 3, viz. the present respondent. I have already stated above, in their replies none of the three non-petitioners had ever questioned the fact that Champalal was the driver of this vehicle. The sequence in which the names of the driver and the owner have been mentioned in para 9 of the petition, would go to suggest that Laxminarayan was the owner and Champalal was his driver, that means, his employee. The non-petitioners have clearly admitted that Laxminarayan was the owner and Champalal was the driver. Laxminarayan nowhere stated in the reply that Champalal was not his driver or his employee or that he used to take the three-wheeler on hire/theka. No issue was got framed on the question whether Champalal was the employee of Laxmi Narayan. In the absence of any allegation to this effect by any of the non-peti-tioners and in the absence of any issue on this point, Laxmi Narayan should not have been permitted to lead evidence to show that Champalal was not his employee or that he was taking the three-wheeler on hire/theka. It is well settled that no amount of evidence can be looked into in the absence of any pleadings. In this respect the of quoted decision of the Privy Council in Saddik Mohammed Shah Vs. Mt. Saran (1) may be referred to which has been followed by Our court and which has also been approved by the Honble Supreme Court in various decisions. I need not Cite all those cases. Therefore, this part of the evidence of Laxminarayan has to be ignored. Mt. Saran (1) may be referred to which has been followed by Our court and which has also been approved by the Honble Supreme Court in various decisions. I need not Cite all those cases. Therefore, this part of the evidence of Laxminarayan has to be ignored. It may also be added at the cost of repetition that since the application of the respondent for amendment of reply has not been allowed as such and he has only been permitted to raise the plea available to him under sec. 96(2) of the Act, he cannot now be further permitted to make any averments in this respect in the reply or to lead any further evidence in this respect. Therefore, according to me, the conclusion is inevitable that since the award has already been passed in favour of the owner of the vehicle, the insurer is also liable for the accident as provided in sec. 95(2) of the Act. Mr. Bhansali conditions of the support of his contention regarding the plea that since the conditions of the policy have been violated, the Insurance company is not liable. In Shankar Rao Prahlad Rao Joshi V. Babual Fouzdar (2) the Insurance Company was not held liable as it was not proved that the driver was either the insureds employee or driving under his order or with permission. There was also no evidence that the driver bad a licence. In that case, there was a clear pleading by the Insurance Company that the Hari Prasad who was driving the bus had no licence and so was also not in the employment of the insured. In fact the the respondents had defended the claim by the denying the fact that Hari Prasad was driving the bus on being asked by regular driver Mahabir Prasad. The finding of the court was that apart the bus at the was neither in the permission of the insured and, time of the accident on the not the employ.was dnving without the permission of the insured. Further, it alleged that he that in that case, the condition was in different form and the question whether such a condition would fall within the purview of sub-clause (ii) of cl. (b) of sub-sec. (2) of sec. 96 of the Act had not been gone into and, therefore, the authority is clearly distinguishable. In National Ins. Co. Further, it alleged that he that in that case, the condition was in different form and the question whether such a condition would fall within the purview of sub-clause (ii) of cl. (b) of sub-sec. (2) of sec. 96 of the Act had not been gone into and, therefore, the authority is clearly distinguishable. In National Ins. Co. Ltd. vs. Nathibai Chaturbhuj (3) which has been cited by Mr. Bhansali, is not at all on point. There, the question referred to the Full Bench was whether the vehicle is on the date of the contract of insurance a vehicle nor covered by a permit to ply for hire or reward whether a passenger on payment will get the benefit of the statutory insurance? Sub-cl. (ii) of cl. of sub-sec. (2) of Sec. 96 did not fall for consideration in that case. 10. The only other question which now remains to be considered is the extent of the liability of the insurer. Learned counsel for the claimants had of-course tried to submit that the liability of the Insurance Company would he co-extensive with the liability of the insured and, therefore, the claim for whole of the amount, which has been awarded against the owner of the vehicle is liable to be honoured by the insurer and according to him the limits mentioned in sec. 95(2) are only the lower limits and do not prohibit the parties from contracting beyond those limits, but in view of the decision of the Honble Supreme Court in National Insurance Co. Ltd. Vs. Jugal Kishore (4) it candidly conceded that the liability of the insurer cannot exceed Rs. 50,000 as the accident had taken place on 30.3.79. Therefore, the liability of the Insurance Company must be fixed at Rs. 50,000/- only. 11. At the end of his argument, learned counsel for the claimants urged that the claimants should also be awarded interest @ 12% from the date of the claim upto the date of payment No interest has been awarded against the owner and the driver by the Tribunal. Therefore, so far as the owner and driver are concerned, who are not parties to this appeal, the question of awarding of interest does not arise. So far as insurer is concerned, Mr. Therefore, so far as the owner and driver are concerned, who are not parties to this appeal, the question of awarding of interest does not arise. So far as insurer is concerned, Mr. Bhansali urged that when the Tribunal has not awarded interest against the owner and liability of the Insurance company is only to satisfy the judgment against the insured, the liability of the Insurance Company cannot exceed the liability of the insured and, therefore, interest cannot be awarded against the Insurance Company, He also urged that although the claimants have tiled this appeal against the Insurance Company no prayer for award of interest has been made and, therefore, learned counsel for the appellants cannot be allowed to raise the question of award of interest now. On the other hand, learned counsel for the claimants relied upon a single Bench decision of this Court in R.S.R T.C. Vs. Smt. Manumati Mahamia (5) where, in the absence of the counter claim or cross-objection by the claimants, interest at the increased rate was awarded by the court. I have given my careful considerations to these contentions and in the circumstances of the case,-I am not inclined to award any interest against the insurance Company, although it must have be said that the conduct of the Insurance Company before the Tribunal would have persuaded me to award interest against it, but, at the same time, I find that the claimants have also not been vigilant and although they came up in appeal against the Insurance Company, no prayer for grant of interest was made nor the owner and driver were em-pleaded and prayer for grant of interest was made against them. R.S.R.T.C.s case (supra) relied upon by the learned counsel for the appellant cannot be of any assistance in this case inasmuch as their appeal had been filed by the R.S.R.T.C, against the claim awarded against it. At the time of the arguments of the appeal, R.S.R.T.C. was not represented and it was urged on behalf of the claimants that the interest @ 6% had been awarded against the R.S.R.T.C. which should have been @ 12% in view of the decision of the Honble Supreme Court. It was in this set of circumstances that the Court observed that even if there was no cross-objection on behalf of the claimants, interest @12% may be awarded against the R.S.R.T.C. 12. It was in this set of circumstances that the Court observed that even if there was no cross-objection on behalf of the claimants, interest @12% may be awarded against the R.S.R.T.C. 12. The result, therefore, is that this appeal is partly allowed. The claim of the appellants is allowed to the extent of Rs. 50,000/- and award is made to that effect against the respondent Insurance Company. The appellants shall be entitled to their costs throughout, against the Insurance Company. It is hoped that Insurance Company will honour the award as early as possible, say, within one month.